Cornyn Outlines Objections to Nomination of Jack McConnell

Statement

U.S. Sen. John Cornyn, R-Texas, a member of the Senate Judiciary Committee, today spoke on the Senate floor outlining his objections to the nomination of Rhode Island federal judicial nominee Jack McConnell.

"Madam President, I rise to speak on a nomination that's pending before the Senate, and I do so with some degree of trepidation because, as someone who has been a member of the legal profession about 30-plus years, I really believe it's imperative that I voice my strong concerns and, indeed, my objections to the nomination of Jack McConnell to become a United States District Judge…a vote we'll have tomorrow morning on cloture.

"The reason I was attracted, like so many others, to law school and the legal profession was because of the majesty and the notion of the rule of law, its importance to our democracy, the responsibilities that lawyers owed not just to themselves to enrich themselves, but to their client -- the fiduciary duty that a lawyer has to represent a client and then, of course the ethical standards, which some might scoff at, but that work actually pretty well…that keep lawyers, for the most part, accountable to the high ethical standards imposed by the legal profession.

"But, unfortunately, and I -- I'm sorry to have to say this, but the hard truth is Mr. McConnell's record, which I will describe here in a moment, is one of not upholding the rule of law, but perverting the rule of law, ignoring the responsibilities that he had to his client and manipulating those ethical standards in order to enrich himself and his law partners.

"But, first, let me just say that Mr. McConnell, when he came before the Senate Judiciary Committee, intentionally misled the committee during the confirmation process.

"I don't know how I can say it any more gently--the fact is, he lied to the Senate Judiciary Committee during his confirmation process.

"And regardless of who nominates an individual, party affiliation aside, I don't think the Senate as an institution should tolerate a nominee that intentionally misrepresents the facts in the context of a confirmation process.

"This involved his participation in -- or involvement with -- a set of stolen confidential documents that his law firm obtained during a lawsuit against the Sherwin Williams Company.

"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.'

"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.

"I would reiterate, Madam President, this body should not approve or confirm a lifetime appointment for someone who wants to serve as a judge, in particular, but anyone who would lie to or at best intentionally mislead the senate by downplaying his role in a serious controversy involving, in this case, stolen confidential documents.

"During the time I practiced law and served on the state court bench in my state in Texas, I've come to respect lawyers who handle all sorts of cases…lawyers that prosecute criminal cases, lawyers that defend criminal cases, lawyers that defend citizens, including companies sued for money damages, and those who bring those lawsuits….constrained again by the rule of law, duty to the client and high ethical standards.

"But based on his long career as a lawyer, Mr. McConnell advocated, it's clear from the evidence, a results-oriented view of the law and manipulated it for his personal gain.

"These theories that he's advanced ostensibly on behalf of his client have been rejected not just by people like me, but by a very broad range of opinion in the legal community.

"For example, Mr. McConnell and his firm sued paint manufacturers based on an unprecedented theory of public nuisance that allowed them to circumvent long-standing legal doctrine and receive a huge jury award in a sympathetic judge's courtroom.

"Ultimately, the Rhode Island Supreme Court rejected unanimously this theory, declaring it "at odds with centuries of American law and antithetical to the common law,' to quote the court.

"As one Iowa attorney general who happens to be a Democrat said, Mr. McConnell's lead paint litigation was -- quote -- "a lawsuit in search of a legal theory.'

"Mr. McConnell's lead paint litigation scheme required the complicity unfortunately of state and local officials -- a practice that I'm going to speak on more in just a moment.

"But Mr. McConnell's reaction to the decision of the Rhode Island Supreme Court also demonstrates his lack of judicial temperament -- something very important particularly for a judge.

"It showed not only does he still adamantly believe in these radical unprecedented legal theories, rejected by the high court of Rhode Island, but he also lacks the temperament to serve on the federal bench. Instead of respecting the decision made by the highest court in the state, Mr. McConnell wrote a strident op-ed piece condemning the court and stating that he believed their decisions "let the wrongdoers off the hook.'

"In other words, Mr. McConnell made clear that he believes the law should be manipulated to serve his agenda, not to uphold the rule of law, nor to respect the very bodies under our system who are responsible for interpreting the law and rendering judgment.

"Mr. McConnell's outburst was not particularly surprising given his public admission previously that he is -- quote -- "an emotional person about injustice at any level, personal, societal or global,' as he put it.

"This lack of temperament and novel view of the law is indicative of the type of judge that Jack McConnell would be. I'm sorry to say - biased against a certain class of people and untethered to the rule of law.

"Mr. McConnell's practices also have existed under an ethical cloud throughout his career. He and his law firm made billions of dollars and a name for themselves through their pioneering practice of soliciting no-bid contingent fee contracts from state officials.

"For example, Mr. McConnell and his firm played a central role in litigating lawsuits brought by state attorney generals first against tobacco companies and then lead-based paint manufacturers.

"Of course I'm not saying that tobacco companies and other companies shouldn't be held accountable for harmful products, but the purpose of the law should be to compensate those people who have been aggrieved and to deter others from acting in the same fashion in the future.

"And the litigation that he constructed and devised, the scheme that he literally created, did none of that.

"The question is ultimately: Where did the money go?

"Under these contracts, Mr. McConnell and his partners have repeatedly sued American businesses, pocketing billions of dollars for themselves in attorneys' fees while leaving taxpayers on the hook for the resulting costs.

"In the word of one respected legal commentator, Mr. McConnell and lawyers like him have -- quote -- "perverted the legal system for personal and political gain at the expense of everyone else.'

"In several lawsuits Mr. McConnell and his partners received contingent-fee contracts from state officials to whom they later contributed tens of thousands of dollars.

"Now I think there are a lot of very important public policy reasons why state officials should not be able to outsource their responsibilities to private lawyers based on a contingency fee where their only incentive is one of a profit motive, untethered by the sorts of checks and balances that elected or other appointed government officials would ordinarily have.

"Our system of justice relies on financially disinterested officials who take an oath to uphold the law--and not those whose sole motive is not to uphold the law but to twist it and to manipulate it in order to maximize their economic gain.

"Some of these lawyers, including Mr. McConnell's firm, pocketed what amounts to hundreds of thousands of dollars per hour -- per hour -- for their work in lawsuits against tobacco companies.

"Mr. McConnell and lawyers like him are the big winners in these lawsuits, taking home large sums of money that rightfully belong to the taxpayer--the client that I mentioned at the outset.

"Imagine if these billions of dollars were spent on cancer research or improving public health instead of lining the pockets of a few politically well-connected lawyers.

"More importantly, however, the outsourcing of suits to create private trial lawyers on a contingency fee basis creates both the appearance and the opportunity for corruption by allowing state officials to reward their friends and campaign contributors.

"Now one reason, Mr. President, that I've taken such a strong personal interest in this issue is because of my service as Attorney General of Texas following that of Dan Morales, my predecessor. Mr. Morales served over three years in the federal penitentiary for attempting to illegally channel millions of dollars in a tobacco settlement that was due to the State of Texas, but he steered it to a lawyer friend of his by trying to back-date a contract, to make it appear to be something it was not.

"The actions of Mr. McConnell and his partners by funneling tens of thousands of dollars into campaign accounts of state officials who hired them raises concerns about pay-to-play dealings.

"In the state of Washington, for example, Mr. McConnell and members of his small South Carolina-based law firm contributed $23,200 to the reelection of the attorney general in the state of Washington.

"By the way, that was the very same lawyer who hired them on a contingency fee basis to represent the state.

"In North Dakota, Mr. McConnell and his wife contributed $30,000 to the gubernatorial campaign of the attorney general who appointed him as "special assistant attorney general for purposes of representing that state in tobacco litigation.'

"Mr. McConnell and his law firm contributed an additional $73,000 to that same attorney general's state political party during the campaign cycle, making them the number-four campaign contributor to that organization.

"Now, there's nothing wrong with people contributing money to political candidates or parties or causes that they believe in, but it's another matter when these contributions are made in connection with no-bid contracts or apparent political favors.

"It's no small matter that Mr. McConnell has a lucrative ongoing financial arrangement as a product of his previous work as a trial lawyer.

"In fact he will receive $2.5 to $3.1 million a year through 2024 as part of his payoff for his work in the tobacco litigation that I mentioned a moment ago. $2.5 to $3.1 million a year through 2024.

"For anyone that would praise Mr. McConnell for giving up a successful legal career in order to serve as a federal judge, remember that he would be reaping huge windfalls at the expense of taxpayers long into his tenure as a federal judge.

"Now some senators will say whatever his past, Mr. McConnell deserves the benefit of the doubt, and that he would be an impartial judge if confirmed by the senate to this lifetime appointment.

"Mr. President, I cannot agree, and neither does, by the way, the United States Chamber of Commerce.

"They have taken an unprecedented step of opposing this nomination and Mr. President, I would ask unanimous consent that that letter be made part of the record following my remarks.

"The multiple controversies surrounding Mr. McConnell are so extraordinary that the Chamber has taken this unprecedented step of opposing his nomination and declaring him "unfit to serve.'

"This is the first time in its 99-year history that they've opposed a district court nominee.

"My colleagues have asked me whether I believe that Texas businesses and business people would get a fair shake in Jack McConnell's courtroom and I absolutely do not believe they could.

"To my colleagues who may doubt what I'm saying or look for some proof, I would just say read the record.

"I'm convinced that you would have trouble looking your constituents in the eye and telling them that you believe that Mr. McConnell would be fair to all litigants in his courtroom, and in this case especially businesses who may be sued for money damages as he did throughout his legal career.

"In fact, Mr. McConnell, during the Judiciary Committee deliberations, described his legal philosophy as saying -- quote -- "there are wrongs that need to be righted, and that's how I see the law.'

"Well, that doesn't cite any applicable legal standard, and it doesn't take into account law as we know it, but just wrongs that he believes need to be righted.

"Similarly, Mr. McConnell has said that based upon his experience, he has absolutely no confidence that certain industries will ever do the right thing and that they will only do the right thing when they are sued and forced to by a jury trial.

"Now, given his tendency to view lawsuits against businesses as a movement against societal injustice, it's difficult to see how Mr. McConnell could put those personal views aside and to give all litigants in his courtroom a fair trial, a right to which they are guaranteed under our Constitution and laws.

"And I believe a vote to allow Mr. McConnell's nomination is a vote to create yet another court where trial lawyers to repeatedly prevail in frivolous litigation against American businesses and that is something we ought not to allow.

"Mr. McConnell's behavior during his career demonstrates a lack of ethics and temperament necessary to serve as a federal judge.

"I would hope a president would never appoint someone like Jack McConnell, but apparently everyone makes mistakes, including this nomination by this President.

"Instead of stubbornly digging in his heals, usually the President has agreed to withdraw nominations whose confirmation process produces extraordinary controversy.

"But since he has failed to do so here, the President has forced me and others to stand our ground and to fight Mr. McConnell's appointment to the federal bench.

"Based on his deeply troubling ethical record and poor judicial temperament, and the fact that he intentionally misled, if not lied, to the Judiciary Committee during his confirmation process, I believe we must fight this nomination with every tool at our disposal.

"Mr. President, I yield the floor."

Source