Karon Law Blog

What If Umpires Were Appointed Like Federal Court Judges?

Posted December 22, 2017

By Jonathan A. Karon

Suppose that baseball umpires had to be nominated by the President and confirmed by the Senate. Now imagine the following exchange at a confirmation hearing:

Senator: Have you ever played baseball?

Nominee: No

Senator: Have you ever held a bat?

Nominee: No

Senator: Have you ever played catch?

Nominee: Not to the best of my recollection.

Senator: How many innings are there in baseball?

Nominee: I don’t know.

Senator: How many outs does each side get?

Nominee: I’m sorry, it’s been a long time since I took phys ed.

Senator: What’s a walk?

Nominee: I don’t know.

Senator: Have you ever read the rules of baseball?

Nominee: I think I did once but it doesn’t have much to do with my job as a ski instructor.

Obviously that’s silly, but if you know what Federal District Court judges do, it’s no sillier than the recent viral video of Senator John Kennedy questioning judicial nominee Matthew Petersen. Mr. Petersen admitted that he had never tried a case, never argued a motion, never taken a deposition by himself, didn’t know the standard for admitting expert testimony or even that the phrase “motion in limine” referred to a request prior to trial for a ruling on whether evidence was admissible. In essence, Mr. Petersen admitted that he had never played the game and didn’t know the rules.

The position he was nominated for was Federal District Court judge. District Court judges are trial court judges. Their job consists of overseeing discovery in civil litigation and criminal cases and presiding over trials. “Discovery” refers to the process of obtaining information and documents from the other side. It can involve serving written questions, requests for documents, and taking depositions. This phase is crucial in every case. To a large extent, civil litigation is a battle for information. Similarly, in criminal cases, the defense is always trying to make sure they obtain any exculpatory information. When the parties can’t agree, one of them will present a motion (a written request for the Court to enter an order) seeking the information. Sometimes the law is straightforward but many times it requires a more complex analysis. It may require analyzing complex privilege claims. I expect my auto mechanic to have some experience working on cars. Similarly, we should expect a trial court judge to have some experience with these issues.

Even more importantly, a Federal District Court judge presides over trials. This requires a knowledge of the Federal Rules of Evidence, which is the law of what testimony the jury is allowed to hear and what exhibits they are allowed to see. The rules are designed to allow all parties to receive a fair trial. Appointing a judge who is isn’t familiar with the rules, really is like appointing an umpire who doesn’t know the rules of baseball.

This is not a partisan rant. I want to point out that Senator Kennedy, whose questioning revealed Mr. Petersen’s lack of qualifications, is a Republican. Which is my point. We don’t ask if umpires are Democrats or Republicans, we just want ones who know the rules and will apply them fairly.