The Senate Judiciary Committee today voted 11-7
on party lines to approve the nomination of John "Jack" McConnell for the U.S. District Court, District of Rhode Island. Whether the Motley Rice trial attorney and Democratic contributor ever gets a final confirmation vote on the Senate floor is another matter. (Updated Friday, 9 a.m.: Sen. Lindsay Graham (R-SC) joined the Democrats in supporting McConnell.)
Sen. Charles Grassley (R-IA), the committee's ranking member, read a lengthy and strongly worded statement in opposition to McConnell's nomination. Excerpt:
Mr. McConnell has a view of the law that I believe is outside the mainstream of legal thought. Much of Mr. McConnell's career has been devoted to bringing some of the most controversial mass tort litigation of recent years. He has pursued the manufacturers of asbestos, tobacco, and lead paint, whose actions he believes to be "unjust." In bringing many of these cases, Mr. McConnell has often stretched legal argument beyond its breaking point. An example is the "public nuisance" theory he pursued in the Rhode Island lead paint case. Well-respected attorneys have said Mr. McConnell's theory "just [did not] mesh with centuries of Anglo-American law" and a former attorney general called the lead-paint cases "a lawsuit in search of a legal theory."
The Rhode Island Supreme Court unanimously ruled against him in State v. Lead Industries Associates, Inc. In a well-reasoned opinion, the court found that there was no set of facts that he could have proven to establish that the defendants were liable in public nuisance.
Mr. McConnell's reaction to that opinion illustrates my third major concern - that he lacks appropriate judicial temperament. Although the opinion was based firmly in the law, Mr. McConnell saw fit to publicly and harshly criticize the court's decision in a Providence Journal editorial. But his criticism made little reference to points of law. Rather, his major complaint was simply that, in his view, "justice was not served." His op-ed lambasted the court for "let[ting] wrongdoers off the hook." Not only were these statements intemperate, even for an advocate, but they reflect a results-oriented view of judging. Mr. McConnell did not focus on the court's analysis or argue that it wrongly applied the law. He argued that the "wrongdoers" weren't punished. In other words, the result didn't fit with his notion of justice, so it was the wrong result.
Sen. Grassley was also sharply critical of the "pay for play" appearances of McConnell making campaign contributions and then winning the contracts from elected official to conduct contingency-fee lawsuits on behalf of the state.
The Judiciary Committee voted McConnell's nomination out of committee twice in 2010, both times to see a final confirmation vote blocked. In his statement today, Chairman Patrick Leahy (D-VT) said, "I have every confidence that Majority Leader Reid will bring the nomination before the Senate this year and if some insist on filibustering the nomination, I expect there will be a cloture petition to bring the matter to a vote."
The U.S. Chamber's Institute for Legal Reform issued a statement, "McConnell Unqualified for Federal Bench." Blog of the Legal Times covered the vote, "Republicans Renew Criticism of Motley Rice Partner."
The committee also postponed, again, a vote on the nomination of Goodwin Liu to the Ninth Circuit Court of Appeals.
UPDATE (9 a.m. Friday): Coverage ...
Providence Journal, " Senate panel endorses McConnell for R.I. judgeship"
Wall Street Journa Law Blog, " Rhode Island Judicial Nominee Takes on More Partisan Fire"