UPDATE: Senate affirms trial lawyer's nomination to federal judgeship

John O'Brien May 4, 2011, 12:21pm


WASHINGTON (Legal Newsline) - After more than a year, the controversial nomination of trial lawyer Jack McConnell by President Barack Obama has been confirmed by the U.S. Senate.

A 50-44 vote makes McConnell a federal judge in a Rhode Island district court. A measure to bring the vote passed the Senate earlier Wednesday with a 63-33 vote.

Sen. Harry Reid, D-Nev., brought the motion to invoke cloture Tuesday and the vote came after several senators took the floor Wednesday morning to debate. One Republican, Tennessee's Lamar Alexander, said he planned to vote to invoke cloture but still planned to vote against McConnell, a heavy campaign donor to Democrats who works at the Rhode Island office of Motley Rice.

Other Republicans said a vote was premature, considering a lawsuit filed against Motley Rice by Sherwin-Williams over an alleged theft of documents is still pending. Republican senators also say McConnell misled the Senate Judiciary Committee about his involvement during a hearing.

New York's Chuck Schumer, a Democrat, urged the Senate not to block cloture - "if you think he's not qualified, vote against him."

The two Rhode Island senators who recommended him - Sheldon Whitehouse and Jack Reed - expressed gratitude after the vote.

The alleged theft of documents stems from McConnell's involvement in a lead paint lawsuit brought by the Rhode Island Attorney General's Office, which hired Motley Rice to pursue the case. The case was unsuccessful, and Sherwin-Williams has sued the firm in an Ohio court because it says Motley Rice attorneys stole privileged documents with the help of a former Sherwin-Williams employee.

Sen. John Cornyn, R-Texas, says McConnell lied when he was questioned about the situation by the Senate Judiciary Committee.

"In 2010, in his answers to written questions from the committee, Mr. McConnell told members, that 'I would not say I was familiar with the documents in any fashion,'" he said Tuesday.

"Only a few months later, in September of 2010, this same nominee gave a deposition in an Ohio court where he testified that he was the first attorney at his firm to review the documents in question...that he had drafted a newspaper editorial citing information that had come from those documents and that portions of those documents were incorporated in a brief filed under his signature.

"Despite this obvious contradiction and given an opportunity to correct his misleading statement, Mr. McConnell unequivocally stood by his original statement to committee members."

Cornyn noted that the lawsuit against Motley Rice is still pending. He also says that if McConnell is made a judge, then those who wish to skew the law in actions against businesses will seek out his courtroom for favorable rulings.

Reed, though, defended his choice, saying McConnell has never had an ethics complaint against him and that he was "appalled" that McConnell's integrity was being questioned.

McConnell and Motley Rice's Rhode Island office represented several states and municipalities in the lead paint litigation, which alleged paint companies had created a public nuisance by manufacturing lead paint before its federal ban in 1978. Public nuisance claims have no statute of limitations, like product liability claims do. The suits were largely unsuccessful.

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. Sherwin-Williams says Motley Rice produced the part of the PowerPoint presentation concerning litigation costs when the company argued the plaintiffs should be liable for its attorneys fees.

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

From Legal Newsline: Reach John O'Brien by e-mail at jobrienwv@gmail.com.

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