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On the Nomination of Matthew Petersen

Matthew Petersen, President Trump’s most recent nominee to the U.S. District Court for the District of Columbia (“D.D.C.”), has come under fire following an exchange with Senator Kennedy, in which Senator Kennedy asked a series of questions designed to demonstrate that Peterson has not practiced as a trial lawyer.

Following that exchange, a parade of critics have argued that he lacks the qualifications to serve on the D.D.C. But does he?

Petersen currently serves as a Commissioner on the Federal Election Commission (“FEC”), and previously served as its Chairman, jobs that gave him significant exposure to the sort of regulatory cases that the D.D.C regularly decides. But apart from that, he has legal experience that matches or exceeds that of past nominees confirmed to federal district courts, including the D.D.C., and none other than the American Bar Association gave him a unanimous qualified rating.

By comparison, at the time of her nomination, now-Judge Alison Nathan of the Southern District of New York, one of the most prestigious district courts in the country, had never appeared in court and had eleven years of professional legal experience—short of the twelve years recommended by the ABA. In 2013, President Obama nominated Kentanji Jackson to the D.D.C. despite the fact that, according to her own filing with the Senate Judiciary Committee, she had not been responsible for trying cases; nor had she handled any cases that were tried to verdict. Judge Jackson was confirmed by a voice vote a mere two months after she was nominated. Likewise, Judge Jackson’s colleague on the D.D.C., Judge Randolph Moss, had tried one case to verdict at the time of his nomination by President Obama in 2014. Moss was confirmed 54-45.

I don’t remember CNN playing endless loops of commentary on the qualifications of Judge Nathan, Judge Jackson, or Judge Moss. Maybe they will now that they have discovered the virtues of the jury trial.

Petersen’s credentials to be a U.S. District Court judge in D.C. exceed those of these other (confirmed) Obama nominees. Following his graduation from the University of Virginia School of Law, Petersen worked at Wiley Rein LLP for several years, which is renowned for its regulatory practice. Petersen left Wiley Rein in 2002 to work on Capitol Hill, serving first as Counsel to the U.S. House of Representatives Committee on House Administration and then as Chief Counsel to the U.S. Senate Committee on Rules and Administration, one of the most consequential committees in that body. His work on the Hill included assistance drafting of the Help America Vote Act of 2002. So unlike most judicial nominees, he brings to his nomination rich legislative experience in both houses of Congress.

Petersen’s government service was not limited to one branch of government. Following his work in Congress, he has spent nearly a decade as a Commissioner of the FEC, serving twice as Chairman during his tenure. As a Commissioner, Petersen is responsible for administering and enforcing the Federal Election Campaign Act and Commission regulations. Although the nature of Petersen’s legal career has meant that he has not had the opportunity to appear in court, as an FEC Commissioner Petersen has extensive experience adjudicating cases at a major independent regulatory agency that in many ways mirrors a trial court: administrative agencies have discovery, motions, trial-like hearings governed by procedural and evidentiary rules, and post-trial appeals.

The relationship of such experience to the job of a trial judge led the ABA’s Standing Committee on the Federal Judiciary to explain in its evaluation criteria that “[d]istinguished accomplishments in the field of law or experience that is similar to in-court trial work—such as appearing before or serving on administrative agencies or arbitration boards . . . —may compensate for a prospective nominee’s lack of substantial courtroom experience” (emphasis added). The ABA has not applied that criteria very even-handedly when it comes to conservative nominees, but that has not stopped the left from adhering to it as the gold standard for determining a nominee’s fitness for judicial service.

Furthermore, Petersen’s role as an FEC Commissioner has involved supervising FEC litigation before federal courts in the jurisdiction to which he has been nominated—from the D.D.C. to the U.S. Court of Appeals for the D.C. Circuit to the U.S. Supreme Court. Petersen has been involved with developing litigation strategy and editing briefs, motions, and other filings. Here are just a few of the major FEC cases that Petersen has overseen in the court to which he has been nominated, all of which would go on to be affirmed by the Supreme Court: Republican Party of Louisiana v. FEC, 219 F.Supp.3d 86 (D.D.C. 2016) (involving a challenge to soft money restrictions applicable to state party committees); Independence Institute v. FEC, 216 F.Supp.3d 176 (D.D.C. 2017) (involving an as-applied challenge to the Federal Election Campaign Act’s electioneering communications provisions); and Bluman v. FEC, 800 F.Supp.2d 281 (D.D.C. 2011) (involving the constitutionality of the ban on foreign nationals making contributions and expenditures in connection with federal elections). And the list happens also to include the two most important Supreme Court cases concerning campaign finance and the First Amendment over the last decade: Citizens United v. FEC558 U.S. 310 (2010); and McCutcheon v. FEC, 572 U.S. __, 134 S. Ct. 1434 (2014).

Petersen’s extensive regulatory experience is all the more valuable for his nomination to the D.D.C, which hears more administrative law cases than any other federal district court in the country. Where Congress has authorized a district court challenge to an agency action, the cases have obvious jurisdiction in the District of Columbia, where all federal agencies are located (and many if not most of these cases are in fact brought in the D.D.C.). Less than one percent of the district’s docket during the previous fiscal year consisted of jury trials.

Say what you want about Peterson’s exchange with Senator Kennedy, and whether he should have done a better job of answering questions or informing the Senator about the depth and relevance of his experience. The fact remains that there are three branches of the federal government and Peterson has distinguished himself in two of them while being extensively involved in the work of the third. Serving as a member of a major regulatory commission like the FEC, and also as its chairman, is an extraordinary experience that very few lawyers ever achieve, and it relates directly to the kind of work Peterson would be doing on the D.D.C.

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