PowerLine – > Is Ridicule of Federal Judge – Matthew S. Petersen – Nominee Justified? + On the Left, It Is All Hysteria, All the Time

PowerLine – > Is Ridicule of Federal Judge – Matthew S. Petersen – Nominee Justified? + On the Left, It Is All Hysteria, All the Time

Powerline image at HoaxAndChange

Powerline image at HoaxAndChange

Daily Digest

  • Is Ridicule of Federal Judge Nominee Justified?
  • Neutralize this
  • The Week in Pictures: The Last Woke Force Returns Edition
  • On the Left, It Is All Hysteria, All the Time
Is Ridicule of Federal Judge Nominee Justified?

Posted: 16 Dec 2017 07:58 AM PST

(John Hinderaker)The Democrats are trying to embarrass President Trump with a video of one of his nominees answering questions in a confirmation hearing before the Senate Judiciary Committee. The video was tweeted by Senator Sheldon Whitehouse and has now been viewed millions of times. You can watch it here, along with an account by the Associated Press:

A lawyer nominated by President Donald Trump to be a federal judge has become an internet sensation after having difficulty answering basic legal questions.
[Matthew S.] Petersen, who serves on the Federal Election Commission, had difficulty answering questions about the “Daubert standard,” which has to do with expert witness testimony, and the definition of a “motion in limine,” which has to do with the introduction of evidence. He acknowledged he has never tried a case or argued a motion in court. He said he last read the federal rules of evidence in law school.

Of course, a great many lawyers have never argued a motion in court, and a majority, I am pretty sure, have never tried a case. Law is a specialized business. Litigators argue motions, take depositions and (sometimes) try cases. Non-litigators–a majority of the profession–don’t.

Matthew Petersen is not a litigator. He is a member of the Federal Election Commission and has expertise with respect to election law:

Matthew S. Petersen was nominated to the Federal Election Commission by President George W. Bush on June 12, 2008, and unanimously confirmed by the United States Senate on June 24, 2008.

From 2005 until his appointment to the Commission, Mr. Petersen served as Republican chief counsel to the U.S. Senate Committee on Rules and Administration. In this capacity, Mr. Petersen provided counsel on issues relating to federal campaign finance and election administration laws as well as the Standing Rules of the Senate.

Prior to this, Mr. Petersen served as counsel to the U.S. House of Representatives Committee on House Administration. During his tenure, Mr. Petersen was extensively involved in the crafting of the Help America Vote Act of 2002 (“HAVA”) and the House-Senate negotiations that culminated in HAVA’s passage. From 1999 to 2002, Mr. Petersen specialized in election and campaign finance law at the law firm of Wiley Rein LLP in Washington, DC.

The lawyers who have the most thorough understanding of substantive areas of the law–real estate, taxes, corporate governance and so on–are generally not litigators. Do we really want to say that all of these non-litigators–the majority of lawyers–are unfit to be trial judges?

During my career as a lawyer, I took thousands of depositions, argued countless motions, and tried 100 jury cases. Would that experience give me a leg up as a newly-appointed trial court judge? Of course. But does it mean that one of my non-litigator partners would be disqualified from such an appointment, no matter how good a lawyer he or she might be? I don’t think so.

I know what the Daubert standard and motions in limine are, although I have no idea what the difference between the two abstention doctrines mentioned by Senator Kennedy might be. But these are things that come with being a litigator. Newly-appointed judges attend “judge school,” where they are taught the finer points of the rules of evidence. Still, trial judges are like basketball referees. I’ve never met two trial judges who had exactly the same interpretation of the rules.

Most lawyers who are appointed to the bench in both federal and state courts have backgrounds in litigation. No doubt that is appropriate. However, it is by no means rare for non-litigator lawyers to be appointed, or win an election, to the bench. In my opinion, that is a good thing. I don’t see why a minority of lawyers–litigators–should have a monopoly on the bench.

I don’t know whether Matthew Petersen will make a good judge or not. But in my view, he doesn’t deserve to be ridiculed because his highly-successful law career has been conducted outside of the courtroom.


Neutralize this

Posted: 16 Dec 2017 06:56 AM PST

(Scott Johnson)In 2015 the FCC reversed long-standing practice and policy to assert control over the Internet. The FCC’s 2015 Open Internet Order (i.e., “net neutrality” as it is in the propaganda wars) reclassifies broadband Internet access service as a Title II telecommunications service under the jurisdiction of the Communications Act of 1934. Internet service providers were now to be regulated as common carriers like Ma Bell. According to Barack Obama and his followers, this all represented a great advance. Democrats like Minnesota’s own Amy Klobuchar portray the regulatory regime imposed by the FCC in 2015 as the cause of the growth of the Internet from the time of its invention by Al Gore. They think we are really, really stupid.

This week under the leadership of Chairman Ajit Pai the FCC voted to return to the “light-touch” regulatory regime that obtained prior to 2015. Pai has compiled a set of links with the relevant background here and posted them along with a brief explanatory video. Klobuchar has vowed to “continue the fight” against the restoration of the regime that fostered the explosive growth of the Internet to 2015.

MSNBC’s Ali Velshi sought to continue the fight in his own way. He invited Hudson Institute Senior Fellow and former FCC Commissioner Robert McDowell (profile here) to discuss the FCC’s repeal of the Open Internet Order. Velshi fancies himself an expert on the merits of the regulation. He has a hard time holding his own with McDowell. You might even say, as Amber Athey does at the Daily Caller, that Velshi “got absolutely destroyed” by McDowell.

Quotable quote (Ali Velshi): “Look, I just feel like we’re having a really unfair conversation here. I’m trying to have a conversation on the merits of the principle of unintended consequences of reversing net neutrality and you’re dropping a lot of legalese.”

NOTE: Peter Suderman covered the “net neutrality” rollback here for Reason yesterday. His post includes brief historical background along with a 30-minute interview of Pai by Reason’s Nick Gillespie conducted earlier this year.


The Week in Pictures: The Last Woke Force Returns Edition

Posted: 16 Dec 2017 03:45 AM PST

(Steven Hayward). . . Or something. The latest Star Wars movie opens this weekend—it this the 115th installment in the series I think? I’m guessing it will involve light sabres, saber-tooth aliens, troops in plastic armor that doesn’t seem to stop anything—and who, by the way, can’t hit anything, etc, etc. At least George Lucas isn’t around anymore to make it into a parable about how terrible our current Republican president it, as he did in one of the dismal prequels. In fact, I think Donald Trump is the Revenge of the Force for Lucas’s thinly veiled attacks on George W. Bush. Who says politics is ever very far from entertainment.


Let’s see who gets this one:

What was that you were saying about Trump, Senator?

Though this pic could use a good caption, too:

 Nice to see the Trump administration has a sense of humor, and will abolish the Department of Redundancy Department:

Environmentalists in junior high school:

And in a slight change to our usual format, a video of guys with guns suitable for the season:

And finally. . . because of Star Wars:


On the Left, It Is All Hysteria, All the Time

Posted: 15 Dec 2017 04:59 PM PST

(John Hinderaker)I have been observing politics for a long time, and have never seen anything like the present moment. The Democrats have dialed the hysteria meter up to 12, and absolutely everything is a crisis. One type of faux crisis is particularly transparent. It is exemplified by the Left’s current fit over net neutrality, a policy that few understand and, I think, fewer still have much reason to care about. But leftists have figured out their messaging, as reflected in this absurd headline in today’s Minneapolis Star Tribune:

Whatever the FCC did, it certainly did not “overturn equal internet access.” Rather, the internet will be as it was in 2015 and in all previous years. Do you recall any problem with equal access to the internet before the introduction of “net neutrality” two years ago? No, neither do I. “Net neutrality” was a solution in search of a problem. Yet Democrats reportedly have been making death threats against the children of FCC Chairman Ajit Pai.

A similar case, in a completely different realm, is that of the Bears Ears [Ed.: Sorry about Bears End, that was spell check.] National Monument. Bears Ears is not a monument in any normal sense; it comprises over 2,000 square miles in southern Utah, more than twice the area of the State of Rhode Island. The Trump administration’s Interior Department has reduced the size of the Bears Ears monument to a more manageable 201,876 acres–still really big for a monument–and the Left has gone bonkers.

The clothing company Patagonia, for example, sued the Trump administration to prevent its order from going into effect.

[Patagonia] replaced its usual home page with a stark message, “The President Stole Your Land.” The California-based company called Trump’s actions illegal and described Monday’s action as the largest elimination of protected land in American history.

But here’s the thing: There was no Bears Ears national monument until December 28, 2016, when President Obama created it by presidential proclamation less than two weeks before he left office. The Trump administration’s order restores the status quo as of December 27, 2016, only with a 201,876-acre “monument.” In a sane world, no one would try to make the case that this represents some kind of outrage, let alone something illegal. The Democrats say that President Obama can create national monuments, but President Trump can’t shrink them. That is consistent with the Democrats’ mantra: Some elections have consequences, others don’t.

The Democrats obviously think that breaking the hysteria meter is working for them, and they could turn out to be right. But by any sane standard, they are making fools of themselves.


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