Plaintiffs attorney should be kept from federal judgeship, WSJ says

John O'Brien Apr. 18, 2011, 3:26pm


WASHINGTON (Legal Newsline) - The Wall Street Journal does not believe plaintiffs attorney Jack McConnell is fit to be a federal judge and says Democrats should not be surprised if his nomination leads to a Republican filibuster.

The nomination of McConnell, a major Democratic donor who works at the law firm Motley Rice, has been a source of debate since last year when President Barack Obama, on the advice of two Rhode Island senators, made it. A recent 11-7 vote by the Senate Judiciary advanced McConnell's nomination to the full Senate.

An editorial published Saturday in the Wall Street Journal noted that Sen. John Cornyn, R-Texas, said a filibuster may be coming - "That would be a rarity for a district court nominee, but Mr. McConnell is not an ordinary nominee," the piece says.

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.

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.

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.

Through the years, he and his wife have given more than $600,000 to the Democratic Party and its candidates, including Obama. Obama nominated him in March 2010.

The WSJ piece says new questions were raised about a possible scandal at Motley Rice concerning the theft of confidential documents in a lead paint case against Sherwin Williams, which has sued the firm.

"In response to written questions from Arizona Senator Jon Kyl in May 2010, Mr. McConnell told the committee he wasn't very involved in the lead paint case, was not familiar with the documents in question and had no reason to believe he'd be one of the defendants in the Ohio lawsuit. In deposition testimony in September 2010, however, his memory was suddenly refreshed," the editorial says.

"He was the first lawyer in his office to review the documents, signed a brief which incorporated portions of them and even helped write an article about the information."

Because of his "changing story," the WSJ doesn't feel he is worthy of a spot on the bench.

"Judicial vacancies are unfortunate, but the seat to which Jack McConnell has been nominated is not even among the 35 so-called federal judicial emergencies," the editorial says. "Senators Whitehouse and Reed also didn't mind keeping the same vacancy open when they helped to block President Bush's nominee, Lincoln Almond, for two years. Mr. Almond never was confirmed.

"Our view is that judicial nominees deserve a vote on the Senate floor, but Democrats and liberals shouldn't be surprised if Republicans conclude that the only way to stop Democrats from filibustering GOP nominees is to do the same to President Obama's."

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.

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