******************** THIS BLOG HAS MOVED TO WWW.LEGALINSURRECTION.COM ********************

This blog is moving to www.legalinsurrection.com. If you have not been automatically redirected please click on the link.

NEW COMMENTS will NOT be put through and will NOT be transferred to the new website.

Wednesday, May 4, 2011

Senate To "Go To War" Today Over Jack McConnell Nomination

So reports The Providence Journal regarding the nomination of John J. "Jack" McConnell, Jr. for an open seat on the Rhode Island federal District Court.

The reason this has become a "war" is that Sheldon Whitehouse (D-RI) has threatened to block future nominees under Republican presidents, as reported by the ProJo:
Whitehouse has warned the Republicans that if they filibuster such local U.S. trial court nominations — a patronage arena in which home-state senators of both parties have traditionally enjoyed wide latitude — their judicial picks will likewise be blocked under a future Republican president.
One Republican, who plans to vote with the Democrats on cloture for McConnell, explained his decision in just those terms. “I don’t want to create a Mideast environment over District Court nominees,” said Sen. Lindsey Graham of South Carolina.
Whitehouse has been making these threats for the past year, and has dug his heels in on McConnell, the largest campaign donor -- by far -- ever nominated by either party.  Whitehouse and McConnell have a long relationship.  McConnell was a donor to Whitehouse's campaign, and Whitehouse hired McConnell when Whitehouse was Rhode Island Attorney General to pursue ill-fated lead paint litigation on behalf of the state.

For more background, see the my prior post, Dems Go To The Filibuster Mat For John J. "Jack" McConnell, Jr..

The key battle will come today at around noon, when there will be a vote on a cloture petition unexpectedly filed by Harry Reid.

John Cornyn (R-TX), who believes that judicial nominees are entitled to an up or down vote except in extraordinary circumstances, believes that McConnell's nomination is an extraordinary circumstance.

Cornyn issue a blistering letter yesterday to fellow Senators asking them to vote against cloture.  The letter reads in part:
"I write to urge you to oppose cloture on the nomination of John J. "Jack" McConnell to be a U.S. District Judge for the District of Rhode Island. Very few judicial nominees have Mr. McConnell's troubling ethical record and poor temperament.
First, Mr. McConnell intentionally misled the Judiciary Committee during his confirmation process. Mr. McConnell was asked about his familiarity with a set of stolen legal documents that his law firm obtained during their case against lead paint manufacturers. In his May 2010 response, Mr. McConnell indicated that he saw the documents "briefly" but was not familiar with them "in any fashion." Only a few months later, Mr. McConnell testified in a deposition that he was the first lawyer to receive the documents in question, had drafted a newspaper editorial citing information that came from the documents, and reviewed and signed a legal brief incorporating the stolen documents....
Mr. McConnell's involvement in contingent-fee litigation raises the appearance of impropriety and "pay-to-play" dealings. In 2000, Mr. McConnell and his law firm colleagues contributed $23,200 to the campaign of Washington Attorney General Christine Gregoire after she had hired them to represent the state in mass tort litigation against tobacco companies. Of that total, Mr. McConnell and his wife personally contributed $2,200. He and his wife also personally contributed a total of $30,000 to the 2000 gubernatorial campaign of North Dakota Attorney General Heidi Heitkamp, who had appointed Mr. McConnell to be a Special Assistant Attorney General "for purposes of representing the State of North Dakota in tobacco litigation. During that same election cycle, Mr. McConnell and his law firm partners donated an additional $75,000 to the North Dakota Attorney General's state political party, making them the fourth-largest aggregate donor to that organization. Of that $75,000, Mr. McConnell himself donated $40,000. It should be noted that, for his role in the tobacco litigation, Mr. McConnell will receive at least $2.5 million annually through 2024 from an organization closely tied with his law firm....
A series of other controversial remarks further call into question Mr. McConnell's judicial temperament. For example, Mr. McConnell publicly compared opponents of smoking bans to proponents of racial segregation, "arguing that some people might like having all-white restaurants so they don't have to sit with blacks, but we don't allow it." Additionally, in 1996 Mr. McConnell said the Rhode Island Governor's decision to keep certain state agencies open during a winter storm was "typical of the cold-hearted Republican attitude of disregarding workers' needs," and continued to compare the Governor's appeal to the cost efficiency of keeping agencies open by saying that '[w]e could bring child labor back, which would be cheaper too."))....
This marks the first time in its 99-year history that the [U.S.] Chamber of Commerce has opposed a United States District Court nominee. Personally, I cannot look my constituents in the eye and tell them that I believe their businesses will get a fair shake in Mr. McConnell's courtroom. If you read the record, I am convinced that you will reach the same conclusion."
The vote is at noon today, which itself is an interesting ploy. 

Eric Holder is scheduled to appear at 10 a.m. before the Senate Judiciary Committee, an appearance long in coming.  Holder is expected to receive tough questioning on a variety of topics, but the hearing will have to recess, possibly for the rest of the day, for Senators to attend the noon cloture vote. If I were a cynic, I'd think that the unexpected cloture filing had something to do with the Holder appearance.

The cloture vote is going to be close.  Key Republican Senators to contact this morning are:

Scott Brown – 202-224-4543 / e-mail
Mark Kirk - 202-224-2854 / e-mail
Marco Rubio - 202-224-3041 / e-mail

Also consider contacting these three Democrats in red states:

Ben Nelson - 202-224-6551 / e-mail
John Tester - 202-224-2644 / e-mail
Claire McCaskell - 202-224-6154 / e-mail

Added:  Jack Reed, the other Senator from Rhode Island and someone who is not prone to heated rhetoric unlike Whitehouse, is echoing Whitehouse's threats:
But Sen. Jack Reed, Rhode Island Democrat, on Tuesday called Mr. McConnell a “pillar of our community” with a “spotless record.” The senator added he fears the GOP’s attempt to block a vote on Mr. McConnell would set a bad precedent in the Senate.

“This is a serious issue,” Mr. Reed said. “I fear that we are on the precipice of taking a step that will come back to repeatedly haunt us and undercut the customs and traditions and a sense of this Senate, which is necessary to maintain, not to abandon.”
Whitehouse and Reed need to get educated on the history of District Court nominees.  The threat of a filibuster has been used to block nominees.  One of those nominees who withdrew when Democrats threatened to block his nomination was none other than Jeff Sessions (R-Ala), a member along with Whitehouse of the Senate Judiciary Committe:
"U.S. Sen. Jeff Sessions of Alabama, the ranking Republican on the committee, told reporters after the hearing that then-Sen. Joseph R. Biden Jr., Democrat of Delaware, threatened to filibuster his nomination to a U.S. District Court seat in Alabama. Sessions later requested that then President Reagan withdraw his nomination."
Posts elsewhere:  David Freddoso, Mr. Lead Paint gets a Senate confirmation vote

McConnell's rating from the American Bar Association is mediocre. His chief qualification is the $800,000 he and his wife gave in donations to Democratic candidates and committees at the state and federal level -- generosity made possible by his success in tobacco litigation.
There is no recent precedent for such massive donations by federal judicial nominees. The biggest donor among President George W. Bush's 261 federal district court nominees (a former county party chairman from Ohio) gave just over $80,000. Most judicial nominees make few donations or none at all.
Follow me on Twitter, Facebook, and YouTube
Visit the Legal Insurrection Shop on CafePress!
Bookmark and Share


  1. Good deal Professor Jacobson! Staying up late to get the word out and the job done! I salute you.

  2. Thanks for heads up. Have emailed my very own Junior Senator, Scott Brown.

  3. This is the sort of foxhole battle that is so important to the future of the country but gets mostly overlooked (seemingly by design in this case). Hopefully there's still enough time to make a difference. I'll post a link to this right away and try to help get the word out.

  4. Let the good people of RI have the judge selected by their duly elected Senator. The designee is a successful tort attorney---so what?? He is at the district level -- cannot do damage to Sen Cornyn's constituents across the country.

  5. Gary, this is a District Court judge, and the consequences of his rulings will be felt far more widespread than just RI. He very well can do damage to Senator Cornyn's constituents across the country. This is why the Senate was granted Advise and Consent powers over federal judicial nominations. There is merit to the arguments of those opposed to his nomination, so let the good Senators from all across the nation have their say in this matter.

  6. Hi professor
    Six more calls via skype. Most were able to take calls, but Nelson's phone just kept ringing.

    Also, in case some people don't realize it, federal court judges are appointed for life and the distrticts are large. Multi county districts are not unheared of. These judges really do shape and sway the law - and they can be appointed to a higher court still. They are giving opinions on federal law and their opinions matter nationwide.

  7. You refer to Senator Sessions as a Republican... but you listed him as "Jeff Sessions (D-Ala)" Beware, this may lead to a public flogging by the most overpaid Freelance Editors in the business. ;)

  8. @mmorelock2 - Thanks, fixed. And no, you don't get a commission :-)