Washington • A judicial nominee with Utah ties who failed to answer basic questions before the Senate Judiciary Committee last week has withdrawn his nomination, a White House official confirmed Monday.
Matthew Spencer Petersen, who earned his undergraduate degree from Brigham Young University and law degree at the University of Virginia, had fumbled questions when grilled about his judicial experience by Sen. John Kennedy, R-La., last Thursday, a video of which went viral and earned a rebuke by judicial observers.
“Mr. Petersen has withdrawn his nomination and the president has accepted,” a White House official said Monday.
Petersen, a commissioner on the Federal Elections Commission and its former chairman, noted at the onset of the hearing that he wasn’t a litigation attorney but noted that he’d overseen a staff of some 70 lawyers at the FEC and acknowledged that he would have some learning to do ahead of taking the bench.
Kennedy singled him out for a line of questioning which Petersen struggled to answer.
“When’s the last time you read the rules of civil procedure?” Kennedy asked.
“Well,” Petersen said, “the rules of federal procedure, um, in my current position I don’t need to stay as, you know, invested in those on a day to day basis but I do try to keep up to speed.”
He’d never argued a motion in state or federal court, or taken a deposition by himself, Petersen said, and was unable to answer questions about common trial motions.
In a letter to Trump, Petersen said he would step aside because his nomination has become a distraction – “and that is not fair to you or your administration.”
He said that the judgeship he was up for – a judge on the federal district court for the District of Columbia – would dovetail perfectly with his experience with administrative and constitutional law. The federal court based in the nation’s capital mainly deals with questions about regulatory matters and challenges to agency actions.
Petersen is a former top aide to the late Sen. Bob Bennett, R-Utah, and had also worked for the House.
“I had hoped that my nearly two decades of pubic service might carry more weight than my two worst minutes on television,” Petersen wrote. “However, I am no stranger to political realities, and I do not wish to be a continued distraction from the important work of your administration and the Senate.”
Matt Sanderson, a partner at the law firm of Caplin and Drysdale who has known Petersen and interacted with him at FEC proceedings, called Petersen’s withdrawal “unfortunate.”
“I think his tenure on the FEC, his service in the legislative branch, would offer a unique perceptive and be a valuable skill set on the D.C. District Court, particularly since that court does very little in terms of jury trials,” Sanderson said, noting most of the work of that court is reviewing challenges to federal agency decisions.
“The bigger travesty is this is almost an indictment on our politics in general,” Sanderson added. “Judicial nominees should answer tough and fair questions but they shouldn’t need to ward off tricks and stunts that are intended to humiliate.”
The worst that can be said about Petersen, Sanderson says, is that he “failed to anticipate the pettiness of a senator who was scorned by the White House in the past.”
Kennedy, a lawyer by profession himself, had criticized the White House for choosing a nominee for the 5th Circuit, which covers Louisiana, without his counsel.
Kennedy told WWL-TV on Monday that Trump called him over the confirmation hearing incident and agreed with the senator’s concern about the nominee.
“The president and I get along fine, and he has told me, he said, ‘Kennedy, when some of my guys send somebody over who’s not qualified, you do your job,’” the senator told the TV station. “And I said, ‘Thank you, Mr. President.’ And I intend to do that.”
“The president called me the day before yesterday,” Kennedy continued. “He doesn’t interview these guys. He has a staff do it. And he said, ‘Kennedy, I think you’re right.’”
Utah Sen. Orrin Hatch issued a statement expressing disappointment in Petersen’s withdrawal.
“While I respect Matt’s decision to withdraw from consideration, the docket of the U.S. District Court for the District of Columbia includes many regulatory matters and cases challenging agency action but very few criminal trials. Matt’s experience, therefore, was particularly relevant for the very jurisdiction to which he had been nominated to serve and he would have been a real asset to that court.
"Placing too much emphasis on a single category of legal practice, as some, including Judiciary Committee members have done recently, can be unfair to good nominees. As a former trial lawyer myself and the former chairman of the Judiciary Committee, I can attest that there is far more to being a good judge than having made oral arguments in a courtroom,” Hatch said.
Petersen will continue to serve on the FEC.