Le·gal In·sur·rec·tion

I have written numerous times about John J. "Jack" McConnell, Jr., who has been nominated to the federal District Court in Rhode Island.  The nomination was one of a handful on which Republicans drew a line in the sand last year, along with Goodwin Liu.

By way of background, McConnell was the first nominee to a District Court ever opposed by the U.S. Chamber of Commerce.  Ever, which should tell you something.

McConnell made a name for himself and a fortune -- including payouts for another decade -- from tobacco litigation.  McConnell also almost made a name for himself in lead paint litigation in Rhode Island, until the Rhode Island Supreme Court threw out the novel legal theory upon which McConnell prevailed in the trial court.

The issue with McConnell for the Chamber is his aggressive plaintiff's background, but that is not the most serious issue in my estimation.  More serious is the fact that McConnell has been the largest campaign donor ever nominated to the federal bench, having contributed over $700,000 to Democrats (including Sheldon Whitehouse, who nominated him) in recent years.  Considering McConnell received only mediocre ratings by the American Bar Association, this gives the appearance of McConnell having bought his way into a lifetime federal judgeship.

Additionally, a Rhode Island think tank, the Ocean State Policy Research Institute (OSPRI) has requested documents regarding the settlement of the lead paint litigation, which raise questions as to whether McConnell or his firm made misrepresentations to the court and the parties.  The litigation was settled by one of the defendants (prior to the Supreme Court throwing the case out) with the proviso that McConnell's firm not earn an attorneys fee.  McConnell agreed to this deal, and instead proposed a donation in lieu of fee to a hospital in Massachusetts.  It turned out, however, that the hospital credited the donation towards a pledge made by McConnell's firm -- so this arguably was a surreptitious way for McConnell's firm to earn a fee while representing to everyone it was not earning a fee. 

Questions regarding the lead paint litigation settlement never have been answered fully, and neither McConnell's firm nor other participants in the litigation (including the State of Rhode Island) never have produced the information requested by OSPRI.  McConnell did answer written Senate questions about the settlement, in which he denied any wrongdoing, but OSPRI's request for documents had not been satisfied and there has been no ability to question McConnell in person and others involved as to whether others knew that the donation would be used to satisfy the law firm's pledge.  Considering that this would be a lifetime appointment, these questions need to be answered.

There is a Judiciary Committee business meeting today in which there will be a vote on McConnell's nomination.  McConnell has passed the Committee before, but a similar vote on Liu has been postponed.

Unfortunately, it remains unclear if McConnell's nomination can be stopped again this year.  Unity among Republicans is key.  The deciding vote may be Lindsey Graham, who voted for McConnell in committee last year, and who is unlikely to joint a filibuster; if Graham joined in a filibuster, Republicans would have the votes on a cloture motion.

More on McConnell nomination at:

• The Washington Times, Lead Balloon.
• Point of Law, Senate Judiciary tries yet again on RI trial lawyer judge nominee

Update: You can watch the business meeting live here.

Sheldon Whitehouse not so obliquely suggested that what goes around comes around, and questioned his colleagues as to how they want their district court nominees considered in the future.  This is similar to Whitehouse's threat made last year during hearings.

Chuck Grassley made the point that McConnell was far more partisan than most nominees.  "My concern is that Mr. McConnell is steeped in political activity and ideology...."  Grassley noted comments in the past by McConnell attacking Republicans, including the statement when the Republican Governor kept state offices open during a snow storm that it was "typical of cold hearted Republican attitude of disregarding labor needs." 

Grassley also made the point about the lead paint settlement discussed above, saying he was distrubed by "the way the facts have dribbled out and the spin that has been put out by McConnell."

I will try to get the transcript of Grassley's statement, it is a devastating indictment of McConnell's political and legal activities and how they relate to his fitness to be a judge.

As promised, the text of Grassley's statement:

Statement of Chuck Grassley Re John J. McConnell Jr. Nomination 3-31-2011


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