John Kennedy’s Judicial Pop Quizzes Are Thirsty and Annoying
Only a former law professor could persuade himself that instant recall of law school trivia is an important skill for a federal judge.
Since his election to the U.S. Senate in 2016, Louisiana Republican John Neely Kennedy has carved out a very particular lane during judicial confirmation hearings. Kennedy, who previously taught at LSU’s law school, will occasionally use his allotted time for questioning to subject nominees to jurisprudential pop quizzes, pouncing imperiously if he senses hesitation or weakness. The effect is of an interrogator who sincerely believes John Houseman’s character in The Paper Chase is what peak law professor performance looks like.
Kennedy has repeated this ritual dozens of times since President Joe Biden took office. “What’s a penumbra?” he asked Deborah Boardman, a nominee to a district court seat in Maryland. “What is the appellate standard of review for a question of fact?” he asked Jessia Clarke, a district court nominee in New York. “Can the U.S. Supreme Court on its own admit a state to the union?” he asked Gustavo Gelpi, a Puerto Rico native and former Puerto Rico district court judge whom Biden sought to elevate to the First Circuit Court of Appeals. (I’m sure Kennedy’s pairing of nominee and question here was a coincidence.)
Some questions invite open-ended, essay-style final exam answers; others are closer to multiple choice; still others sound like fodder for the world’s most annoying game of Jeopardy!. “Tell me the holding in Marbury v. Madison,” Kennedy told Christine O’Hearn; “Explain the Erie doctrine to me,” he told Holly Thomas; “Explain to me the legal basis for a universal injunction,” he told Doris Pryor. He has asked about summary judgment, and specific SEC rules, and constitutionally suspect classifications, and the precise apportionment of responsibility for enacting criminal statutes. Earlier this year, Washington state district court nominee Charnelle Bjelkengren decided to withdraw her name from consideration after a painful few moments in which she was unable to define “purposivism” or describe the purposes of Articles II or V of the Constitution off the top of her head.
Kennedy became notorious for exchanges like these in 2017, when he, as a still-recently-elected senator, earned a burst of media attention for torpedoing the nomination of Matthew Peterson, a Trump nominee for a district court seat in Washington, D.C. During the hearing, Peterson admitted to Kennedy that he was unfamiliar with the Daubert standard, which judges use to assess the reliability of expert witness testimony, and motions in limine, which are pretrial requests to exclude certain pieces of evidence at trial, both of which seem like important concepts for someone on the verge of becoming a trial court judge to understand.
Peterson, who was a member of the Federal Election Commission at the time, went on to concede to Kennedy that he’d never tried a case to verdict, handled a jury trial, or argued a motion in state or federal court. If you look closely, you can see the exact moment Peterson realizes he is about to become briefly famous for all the wrong reasons.
Today, Kennedy says the practice is borne of his belief that judges should “know the law book from an L.L. Bean catalog,” one of many folksy-sounding aphorisms he’s grown fond of integrating into whatever Republican talking points he’s reciting at the moment. “I taught for 15 years, and these are the kinds of questions that I would expect my students to know the answer to,” he told Bloomberg Law’s Tiana Headley this week.
According to Headley, nominees who are already steeling themselves for the most nerve-racking hour of their professional lives are now incorporating the possibility of a Kennedy surprise attack into their preparation, to the extent that one can prepare to discuss a subject they may or may not have encountered in decades. A former Democratic lawyer to the Senate Judiciary Committee reports that every nominee these days is preoccupied with “trying to get ready for the Kennedy quiz,” a phrase I am sure his Judiciary Committee staffers have thought about printing on T-shirts.
Obviously, one hopes that aspiring judges are, broadly speaking, familiar with the law they are charged with upholding. But Kennedy’s putative method of making this determination, like that of many law professors who are obnoxiously bad at the Socratic method, confuses form for substance. Before her nomination, Bjelkengren spent six years as an administrative law judge and four more as a state trial court judge, presiding over 130 cases that went to verdict. Her performance over several years as an honest-to-God judge, I would think, would be a more useful metric for evaluating her fitness to be a federal court judge than the alacrity with which she can match constitutional powers to Roman numerals and/or whether she happened upon the right statutory interpretation flash card the night before.
Please do not mistake me for offering a defense of Matthew Peterson, who, again, was up for a life-tenured trial court judgeship despite having roughly as much trial court experience as I do. But also among Kennedy’s knockout-blow questions for Peterson was one about when he last read the Federal Rules of Civil Procedure and the Federal Rules of Evidence. “All the way through? Well, comprehensively, would have been in law school,” Peterson answered, the light in his eyes growing dimmer with each passing moment.
This, by my estimate, is the same answer you’d get from 98 percent of his colleagues in the legal profession, most of whom did not “comprehensively” read the Federal Rules of Evidence in law school, either. Even among practicing lawyers, the only people who sit down to “read” the Federal Rules of Evidence’s annual updates cover-to-cover are evidence professors, perverts, or some combination thereof. This is because the skills that are important to being a good lawyer, let alone a good judge, are not rote memorization of landmark cases or instant recall of pincites. As the Alliance for Justice’s Jake Faleschini put it to Headley, Kennedy’s conception of the law seems to ignore the fact that after their confirmations, judges will have access to things like libraries, clerks, WestLaw, and Google.
Any lawyer will tell you that they forget almost everything they learn for the bar exam, an antiquated institution that exists mostly to line the pockets of test prep company executives. Reproducing this dynamic in the Senate Judiciary Committee yields nothing other than the occasional viral video, which sort of betrays their real purpose: Kennedy, like all senators, enjoys attention, and roasting someone for not knowing chapter and verse is a low-effort way to get it. Terrified nominees who spend their time trying to game-theory his likeliest trivia question are not learning anything; they’re just studying to a meaningless test, or at least, what they imagine that meaningless test might look like.
Judicial confirmation hearings have long been more political theater than anything else. But Kennedy’s little stunts highlight just how silly and divorced from reality they’ve become. If a senator really cares about how a judicial nominee would perform if confirmed, there are better ways to figure this out that do not involve making someone squirm for the purpose of making someone squirm: questions about one’s judicial philosophy, for example, or about one’s values, or about how one views the role of a life-tenured judge in a political landscape in which life-tenured judges accrue more power with each passing year. Those questions would earn him fewer retweets, though; hence, more dumb gotcha bullshit instead.
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