Nomination of John J. McConnell

NOMINATION OF JOHN J. McCONNELL

Mr. REED. Madam President, I rise today in support of the nomination of John ``Jack'' McConnell to serve as a district court judge in the State of Rhode Island. We have heard and we will hear a number of very strong statements about this nomination. I would argue very vociferously that many assertions that have been made are inaccurate at best and they are not shared by the legal and business community in Rhode Island. In fact, Jack McConnell is supported publicly and enthusiastically by the two former Republican attorneys general of Rhode Island, Arlene Violet and Jeffrey Pine. He is not opposed by the Greater Providence Chamber of Commerce, which knows him and has worked with him. He is supported by our legal community and our business community. He has received the strong endorsement of our leading newspaper, the Providence Journal, which has a record of moderation, indeed if not conservatism, in terms of their judgments about judicial candidates and some issues, but certainly moderation.

Later, Senator Whitehouse and I will respond specifically about the assertions and concerns, but I think it is time at this juncture to make a few brief points about where we are at this Senate. We are at a point where we might be crossing a bridge from which we cannot return; that, unlike our previous history, district judges will be subject routinely to cloture motions because one faction or another decides, not on the merits but procedurally, they should not go forward.

Let me make a few points. Senator Whitehouse and I recommended Mr. McConnell to the President after publicly seeking applicants, talking to attorneys throughout our State, interviewing almost every single applicant. We took this decision seriously, as you would expect. We know it is a reflection both upon ourselves and upon our State. From this pool of applicants we selected Mr. McConnell because we found him to be among the best attorneys of the State, a pillar of our community, one of the most generous philanthropists in our State--and in most cases anonymously--and in many cases not simply writing a check but standing in a soup line early in the morning handing out food to people who need it, without acclaim, without fanfare. This is the character of the individual, and character, I think, ultimately is the test of a judge. He has a true desire to serve this country.

Indeed, Mr. McConnell has practiced law for decades. He has never been subject to an ethics claim, a malpractice claim, a rule 11 motion, and most importantly he has never had a motion for sanctions filed against him concerning his conduct in any litigation in which he has been involved. He has a spotless record.

Moreover, we selected Mr. McConnell because we knew, based upon all of his personal background, his sworn testimony, that he will follow the precedents of the law and of the First Circuit Court of Appeals and of the United States Supreme Court. This is not something we take lightly and it is not something Mr. McConnell takes lightly. We know and he knows that when you step upon the bench you assume huge responsibilities. You have to not only appear to be impartial, you have to in every word and deed go the extra mile to demonstrate that impartiality, that you are not favoring anyone. He is prepared to do that. In fact, I think that is part and parcel of the nature of this gentleman.

Now, we have to stop here and ask ourselves collectively, do we want to go ahead and take this step of cloture for district court nominees? Do we really want to add another front in the battle of partisan political ``gotcha''? Do they really want to cast aside, for example, the blue slip process which allows Senators from a home State, particularly with a district judge, to say yea or nay? It is a process that has been in the Senate, in the informal culture of the Senate for years and years. Do they want to deny a nominee who has been reported out of committee on a bipartisan vote three times, not once, an up-or-down vote? I heard and I have heard for years--particularly under President Bush--many people coming to this floor and claiming everyone who is nominated and comes out of committee deserves an up-or-down vote, particularly a district court nominee, especially a district court nominee. So this is where we are poised--to reject all of them, to enter a new dimension of controversy and conflict in the Senate.

We have a long history in the Senate of precedents and tradition when it comes to nominations, particularly district court nominations. In my State, my predecessors, men such as John Chafee and Claiborne Pell and Lincoln Chafee and John Pastore, clearly adhered to those standards. And we have a record--a strong record

of judges in our State, and they have come from different backgrounds. They have come from the practice of corporate law. They have come from being a former Federal attorney. They have come from being a significant and principal attorney for a major insurance company. They have come from a vast array of legal backgrounds and professions. One thing they have had in common, and which is shared by Jack McConnell, is integrity and commitment to the law. And that we insist upon.

We have long recognized that these district judges serve a critical role, and I think we all recognize, too, here as Senators that this is a special role of the home State Senator. We understand that at the circuit level, when judges have to consider issues of constitutionality, where major policies issues could be resolved--in fact, finally resolved, at least for that circuit--we understand there is another added dimension. But with district courts, we have traditionally recognized the judgment of not only the local Senators but the judgment of the local legal community. And once again, here, both the legal community in Rhode Island and, I cannot emphasis enough, two former Republican Attorneys General, who know him well, who have observed him closely, have come forward of their own volition and enthusiastically supported his candidacy. They know him as a lawyer. They know him as a man of integrity and honor and decency.

There are a number of my colleagues on the other side who recognize this, and they have been very forthright in making the point about the precipice that we are on and how that is not a precedent we want to establish. I thank them for that. I thank them for their consideration. They have literally adhered to consistently--not just in the past but now--the notion that when a judge is given a qualified approval by the ABA, when a nominee goes through the committee, comes to this floor at the district level, that is when a vote should take place. And how you vote on final passage is a function of many things--your judicial philosophy versus their judicial philosophy, your view of the judgment they have and the responsibility a district judge has.

Now, I think we have again been engaged in difficult debates, and they have been particularly difficult when it has come to the circuit court. I do think we recognize collectively that because of the nature of the circuit court, there is a difference. This is the gateway, and many times, the cases never go beyond the circuit court. Constitutional law, principles that apply to whole circuits are affirmed by these panels of judges, and there is a different standard. But we have never really applied that standard to the district court. We have relied--all my colleagues have--on the ability of home State Senators, together with their local lawyers, together with their local communities, to make recommendations to serve on the district court.

Let me point out how extraordinarily unusual the vote tomorrow will be. From our reference, talking to the Congressional Research Service and the Senate Library, as far as we can consider, there have been only three cloture votes on Senate nominees for district courts in the history of the Senate--three times. Tomorrow will be the fourth. Oh, by the way, all three of those individuals ultimately received confirmation. It appears from our reconstruction that they were caught up in a procedural discussion of who should go first; this person should not go first until others had been considered. All three, after the procedural votes on cloture, were confirmed.

But it is quite clear that at least on the part of some, this cloture vote tomorrow is designed to stop and end the confirmation of Mr. McConnell. That would be a first as far as we know in our reconstruction of the history of the Senate.

So we are facing this question, the question of whether we want to establish this precedent, whether we want to disregard the record of this individual, who is a man of integrity and honor, who is strongly supported by our local business community, who is strongly supported by Republican officeholders as well as Democratic officeholders, who has gained the trust and the respect of those who know him best, and who will serve with distinction and integrity on the District Court for the District of Rhode Island.

That is the big issue we face tomorrow. Later, we will come down and we will respond to those issues of specific detail. But I can recall not too long ago when there was a group of Republicans and Democrats who came together and decided that these types of decisions should not be subject to procedural defeats, but they should be based on the merits. That was the Gang of 14's work on trying to pull together a consensus on judges. I also know that both Senator Reid and Senator McConnell are working with a group of people on a bipartisan understanding regarding executive nominations--not judicial nominations but executive nominations. These are very hopeful and positive signs. I hope we can build on that process and not tomorrow take a step which I think historically is atypical, unique, in fact, a step in the very wrong direction.

We will come back again, and we will talk about the specifics of Mr. McConnell's nomination and these assertions. But all of these allegations cast, again, not only a cloud upon Mr. McConnell but on the ABA process which looks very carefully at a candidate in terms of their judicial skill but also their character, their integrity, their ability to serve, and the process here in the Senate through the committee process.

So I would hope that we can favorably consider--in fact, I would hope, as is typical, that we would move quickly to a final passage vote, as we do with 99 out of 100 district court nominees.

But this is a serious issue. I fear we are on the precipice of taking a step that will come back repeatedly to haunt us and undercut a custom and a tradition and a sense of this Senate which is necessary to maintain, not to abandon.

I yield the floor.

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