Le·gal In·sur·rec·tion

I have written several times before about the controversial nomination of John J. "Jack" McConnell, Jr. to an open federal court seat in Rhode Island.  It appears that Democrats will use the lame duck session to force through McConnell's nomination, which has been stalled for most of this year.

McConnell, who made a fortune in the tobacco litigation and led a failed effort against paint companies in Rhode Island, donated several hundred thousand dollars to Democratic lawmakers, including to McConnell's primary sponsor, Sheldon Whitehouse (D-RI).  As reported by The Providence Journal last March:

During the 2008 campaigns, the McConnells gave almost $160,000 to elect Democrats, including $77,000 to national party organizations that helped to finance the campaigns of presidential, Senate and House candidates, according to the Washington-based CRP. The McConnells gave a total of $15,500 to the individual presidential campaigns of Mr. Obama; now Vice President Joseph R. Biden Jr.; Secretary of State Hillary Rodham Clinton; former Sen. John Edwards and New Mexico Gov. Bill Richardson.

The McConnells gave $8,800 to [RI Senator Jack] Reed’s reelection campaign. They gave $3,000 to reelect Rep. James R. Langevin and $4,600 to reelect Rep. Patrick J. Kennedy, plus $5,000 more to the political-action committee Kennedy operates to give money to fellow Democratic candidates. McConnell gave $8,400 to Whitehouse’s 2006 election campaign and has since given $3,500 to his PAC fund.

The Politico has noted that McConnell's campaign donations dwarfed contributions by any other Obama or George W. Bush judicial nominee.  And it wasn't even close.  Few other nominees even broke the $10,000 mark.

While Whitehouse repeatedly points to bipartisan support for McConnell in Rhode Island, the fact is that McConnell has curried local goodwill not through his legal talents, but through donations to various community groups.  As reported by The Providence Journal last April:

Reed’s office provided specific totals and descriptions of charitable giving by McConnell’s family, including $1 million to Trinity Repertory Company in Providence “to keep the doors open and the bills paid” during the recession; $625,000 to the Roger Williams University Law School to establish a loan forgiveness program for needy students that go into public service law; $157,500 to help the Institute for the Study and Practice of Non-Violence erect a building in Providence; $127,000 to Crossroads R.I. in Providence for work with the homeless; and $60,000 each to St. Michael Church and St. Francis Church in Warwick for their capital needs. Reed’s office listed several dozen other beneficiaries of the McConnells.

A 2007 profile of McConnell in The Boston Phoenix (Rhode Island's Billion-Dollar Man), noted how McConnell had used his wealth to gain political power:

McConnell’s success has given him the time and resources to become an important player in liberal politics, both nationally and in Rhode Island.

Besides being treasurer of the state Democratic Party, he’s undertaken key roles in the campaigns of Providence Mayor David N. Cicilline [my note - just elected to Congress in RI-01], three-time gubernatorial candidate Myrth York, and US Representative Patrick J. Kennedy. Thousands have been raised for national figures, including presidential frontrunner Hillary Rodham Clinton, during fundraisers at McConnell’s East Side home. He also is chairman of Trinity Repertory Theater and serves on the board of Crossroads Rhode Island, which combats homelessness. 

“For progressive causes, for the Democratic Party, Jack McConnell has been a godsend,” says Robert A. Walsh Jr., executive

McConnell is so keyed into Rhode Island Democratic Party politics that he recently was hired by Providence Mayor (and Congressman-elect) David Cicilline to pursue litigation for the City against the non-profit library system after the library system refused accede to the City's demands to turn over its properties.  The library released a press release complaining:

When the Library refused, Providence Mayor David Cicilline, like a petulant child who doesn’t get his way, retained Democratic contributor Jack McConnell to file a baseless harassing lawsuit against the Library.

If McConnell were a superbly qualified nominee with great intellectual accomplishments, perhaps the spreading of his money around could be excused as irrelevant to the nomination.  But McConnell received a less than stellar evaluation by the American Bar Association:

President Obama’s choice for the open seat on the state’s federal district court — Providence lawyer John J. McConnell Jr. — received a mixed review from the American Bar Association’s judicial rating panel.

The ABA’s 15-member judicial rating committee gave McConnell a majority grade of “qualified,” its second-best mark, while a minority of either one or two panelists deemed him “not qualified;” three members abstained from voting on his qualifications to sit on the federal court.

McConnell is the first District Court nominee ever to be opposed by the U.S. Chamber of Commerce.  McConnell and his law firm also have refused to release records relating to McConnell's handling of lead paint litigation brought on behalf of the State of Rhode Island (he was hired by then Attorney General Whitehouse) and whether McConnell's firm improperly obtained a legal fee in the lead paint litigation.

As reported by The Providence Journal, Harry Reid and Whitehouse are going to use the lame duck session to try to push through McConnell's nomination:

U.S. Sen. Sheldon Whitehouse said Wednesday that the parliamentary process has been set in motion for a Senate floor vote this year on President Obama's controversial nomination of Providence lawyer John J. McConnell Jr. to the United States District Court in Rhode Island.

McConnell, a prominent plaintiff's lawyer, is the most generous federal campaign contributor among nominees to the U.S. courts since the late 1980s. He is one of a handful of candidates for the federal bench who have drawn strong opposition from the GOP.

Because Republicans are the minority party in the Senate, they lack the votes to kill the nomination of McConnell -- a Democratic activist suggested to Mr. Obama by Rhode Island Democratic U.S. Senators Jack Reed and Whitehouse. Therefore, the opposition has resorted to delaying tactics for McConnell and a few other nominees.

While a few other nominees will be part of the group being pushed through, it is clear that McConnell's nomination is taken very personally by Whitehouse.  During McConnell's appearance before the Senate Judiciary Committee, Whitehouse reacted with thinly veiled threats of retaliation against future Republican nominees if McConnell were filibustered.

Republicans are right to oppose McConnell's nomination, but not primarily because of his mass tort litigation history.  We nominate plenty of defense lawyers to the federal bench, and so long as the person can be impartial, there is no reason to exclude plaintiffs lawyers.  In this case, however, the Chamber of Commerce can point to a number of factors which might call McConnell's ability to be impartial into question, including disparaging comments McConnell made after the Rhode Island Supreme Court threw out the lead paint lawsuits.

McConnell bought this nomination, plain and simple. There is no way McConnell would have been nominated had he not bought political favor over several years, both at the state and federal level. 

The Rhode Island federal court is small (only three non-senior status Article III judges), so an appointment to the federal court does not come along often and is quite coveted in local legal circles.  Having practiced in Rhode Island, I can assure you that there are plenty of talented and accomplished lawyers -- and yes, liberal lawyers at that -- who could have been nominated without creating the appearance that the judgeship was for sale.

It is bad enough when large campaign donors get ambassadorships or other short-term rewards.  The McConnell nomination is so much worse. 

To reward a huge campaign donor with a lifetime federal judgeship makes a mockery of our judiciary. 

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