Despite concern, Judiciary Committee approves lawyer's nomination

John O'Brien Mar. 31, 2011, 4:35pm



WASHINGTON (Legal Newsline) - The Senate Judiciary Committee moved the controversial nomination of Rhode Island plaintiffs attorney Jack McConnell ahead to the full Senate Thursday with an 11-7 vote.

McConnell's nomination has been in this position before, but the Senate recessed without taking action on a previous 13-6 committee vote that approved McConnell. In January, President Barack Obama - one of the beneficiaries of McConnell's generosity with campaign contributions - renominated him.

Sen. Chuck Grassley, a Republican from Iowa who serves as his party's ranking member on the committee, started the hearing with a lengthy message detailing his concern with McConnell's nomination.

"First, Mr. McConnell is an active partisan, perhaps more so than any other nominee recently before this committee," Grassley said. "Mr. McConnell and his wife have donated at least $700,000 to elect Democrats (over $160,000 in 2008 alone). He has served as Treasurer of the Rhode Island Democratic State Committee. He is a member of Amnesty International USA, and has served as a Director at Planned Parenthood of Rhode Island.

"I would not argue that partisan political activity is disqualifying on its own. My concern is that Mr. McConnell is so steeped in political activity and ideology that it will be impossible for him to be an impartial jurist - even if he earnestly believes that he can."

Sens. Sheldon Whitehouse and Jack Reed recommended McConnell to fill a vacancy in U.S. District Court in Rhode Island last year. Whitehouse is a member of the Judiciary Committee.

"Jack McConnell is a brilliant legal mind and an outstanding community leader. We believe he possesses the experience, intellect, and temperament to be a great judge on the U.S. District Court for Rhode Island," a statement released by the senators said.

Whitehouse, then the attorney general, hired McConnell and his firm Motley Rice to file a lawsuit against the former makers of lead paint in 1999.

The state Supreme Court unanimously struck down a verdict for the plaintiffs in 2008, turning back a legal theory that said the companies created a public nuisance by making lead-based paint, even before its effects were known and the federal government banned it in 1978.

Grassley says McConnell's view of law is outside the mainstream.

"Much of Mr. McConnell's career has been devoted to bringing some of the most controversial mass tort litigation of recent years," Grassley said. "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.'"

That former attorney general was Bonnie Campbell, who held that position in Iowa. She made the remark while spokesperson for the companies being sued by McConnell.

After Whitehouse left the Attorney General's Office, McConnell and his wife pumped $12,600 into his campaign fund. Whitehouse took office in 2007.

Since 2001, the McConnells have given Reed $13,200, including $8,800 for his 2008 re-election campaign.

The Washington Examiner, a conservative publication, has written that McConnell is trying to buy a federal judgeship.

"Among the beneficiaries of this campaign largesse were Obama, four members of the Senate Judiciary Committee that approved his nomination, and the Democratic Senatorial Campaign Committee," the editorial says.

McConnell also represented some states in their lawsuits against the tobacco industry. His work, and the work of other private attorneys, led to the 1998 Tobacco Master Settlement Agreement. It has an estimated worth of $246 billion over its first 25 years and allows for annual payments made to the attorneys who litigated the case.

A post by Judicial Watch says McConnell will receive between $2.5 million and $3.1 million annually until 2024 as a result of the settlement.

A year ago, the American Bar Association gave a less-than-enthusiastic thumbs up to McConnell.

Voting results showed a substantial majority (at least 10) of the 12 voting members said McConnell was qualified, the second-highest of three possible ratings. One or two voted not qualified, and none voted well-qualified.

Sixteen of Obama's 25 nominees in 2010 had received the well-qualified rating at that point. Of his 54 total nominees at the time, McConnell was one of only four who received not qualified votes.

The Institute for Legal Reform, an affiliate of the U.S. Chamber of Commerce, is also opposing McConnell's nomination. The ILR owns Legal Newsline.

From Legal Newsline: Reach John O'Brien by e-mail at

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