Executive Session

Floor Speech

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Mr. GRASSLEY. Mr. President, I rise today to speak in opposition to one of President Obama's most controversial nominees, Mr. Jack McConnell, who has been nominated to be U.S. district judge for the District of Rhode Island.

He has dedicated his professional career, and enriched himself in the process, by bringing dubious mass tort litigation. I believe he has demonstrated a result-oriented view of the law. He has repeatedly demonstrated that he is highly partisan. And given his history of intemperate and highly partisan remarks, I do not believe he is capable of being an impartial jurist.

First, Mr. McConnell is an active partisan, a little more so than most nominees recently before the Senate. 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. Partisan political activity is not disqualifying on its own. My concern is that Mr. McConnell is so steeped in political activity and ideology that it may be impossible for him to be an impartial jurist--even if he earnestly believes that he can.

We can legitimately question whether his partisanship will influence his judicial philosophy. He has made a number of sharp partisan political statements, including one in which he indicated that only Democrats fight for ``economic and social justice and opportunity for all.'' He has called for a more ``active government'' and redistribution of wealth, and claimed that ``health care should be a right of citizenship.'' When Republican Gov. Lincoln Almond kept the Rhode Island government open during a snowstorm in 1996, Mr. McConnell commented to the press that the decision was ``typical of the cold-hearted Republican attitude of disregarding workers' needs.'' He went on to argue against the Governor's appeal to the cost efficiency of keeping agencies open by saying that ``[we] could bring child labor back, which would be cheaper, too.''

Mr. McConnell has often portrayed his mass tort cases as movements against societal injustices. He has said that these cases represent ``wrongs that need to be righted and that is how I see the law.'' He has said that he is ``an emotional person about injustice at any level--personal, societal, global.'' These statements indicate an activist viewpoint. This is not what I want in a Federal judge.

Second, Mr. McConnell has a view of the law that I believe is outside the mainstream of legal thought. Much of McConnell's career has been devoted to bringing some of the most controversial mass tort litigation of recent years. 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.''

The Rhode Island Supreme Court unanimously ruled against him in State v. Lead Industries Associates, Inc. In a well-reasoned opinion, the court found that there was no set of facts that he could have proven to establish that the defendants were liable in public nuisance.

Mr. McConnell's reaction to that opinion illustrates my third major concern--that he lacks appropriate judicial temperament. Although the opinion was based firmly in the law, Mr. McConnell saw fit to publicly and harshly criticize the court's decision in a Providence Journal editorial. But his criticism made little reference to points of law. Rather, his major complaint was simply that, in his view, ``justice was not served.'' His op-ed lambasted the court for ``let[ting] wrongdoers off the hook.'' Not only were these statements intemperate, even for an advocate, but they reflect a results-oriented view of judging. Mr. McConnell did not focus on the court's analysis or argue that it wrongly applied the law. He argued that the ``wrongdoers'' weren't punished. In other words, the result didn't fit with his notion of justice, so it was the wrong result.

Mr. McConnell was also deeply involved in State lawsuits against tobacco companies. However, beyond litigation, he has shown an open hostility to tobacco companies. He told the press in 1999 that he would ``like Congress to put the Cigarette makers out of business.'' He has even gone so far as to compare people who opposed smoking bans in restaurants to the supporters of racial segregation, saying ``some people might like having all-White restaurants so they don't have to sit with Blacks, but we don't allow it.''

A fourth concern relates to the manner in which Mr. McConnell conducts his business. I am not suggesting illegal or unethical behavior, but it is a bit unseemly. He and his firm, Motley Rice, have often brought these controversial mass tort litigations cases while representing State attorneys general on no-bid contingency fee contracts. According to an April 24, 2009, Wall Street Journal editorial:

Mr. McConnell and his firm helped pioneer the practice of soliciting public officials to bring lawsuits in which private lawyers are paid a percentage of any judgment or settlement. The law firms front the costs of litigation and are compensated if the suit is successful. But such contingency-fee arrangements inevitably raise questions of pay to play. And private lawyers with state power and a financial stake in the outcome of a case can't be counted on to act in the interest of justice alone.

There are numerous examples of campaign contributions by Mr. McConnell and/or his wife in States where he or his firm was conducting or soliciting litigation. These include Rhode Island, Ohio, Washington, Vermont, and North Dakota.

In another instance, as part of a settlement in the Rhode Island lead paint case, DuPont was to pay $2.5 million to the International Mesothelioma Program at a Boston hospital, which is run by a former Motley Rice expert asbestos witness, Dr. David J. Sugarbaker. According to press reports, the payment was intended to satisfy a $3 million pledge previously made by Motley Rice to Dr. Sugarbaker to secure a seat on the executive advisory board of the program.

My problem with this is the way the facts have dribbled out and the spin that Mr. McConnell has tried to put on this payment. Although both Rhode Island and DuPont claimed that the agreement was not a legal settlement, the agreement involved a commitment by DuPont to contribute over $12 million to charity and a commitment by the State of Rhode Island to dismiss the case against DuPont. DuPont refused to pay any attorneys' fees because they were disputing the permissibility of the State's use of private counsel on a no-bid contingency-fee contract. Nonetheless, DuPont agreed to make a sizeable donation to charity to settle the case.

In my view, the donation to the Boston hospital is highly suspect. Settlement money that was supposed to help reduce lead poisoning in Rhode Island in effect was diverted to offset a debt of Mr. McConnell's law firm. The chairman of the Rhode Island Republican Party described the problem as follows: ``McConnell's law firm had a $3 million obligation to a Boston hospital, and so as part of the settlement, $2.5 million of that obligation was paid by DuPont.''

Mr. McConnell does not dispute this characterization of the $2.5 million payment. Despite claims by Attorney General Lynch that the payment would not satisfy Motley Rice's obligation to the hospital, he said ``I don't see why it shouldn't, and I don't see anything nefarious or wrong with that.'' The controversy regarding the settlement intensified when attorneys from another firm who had worked on the case on a contingency fee basis disputed the payment, claiming it was a ``legal fee'' that they were not being allowed to share in.

Fifth, I am concerned that Mr. McConnell has approached this confirmation process with either a lack of diligence or a lack of candor. I am particularly troubled by the way Mr. McConnell handled himself before the committee. I believe Mr. McConnell, at best, misled the committee when he testified about his familiarity with a set of stolen legal documents that his law firm obtained during the lead paint litigation. When asked about these documents during his committee hearing, he testified that he saw the documents ``briefly,'' but that he was not familiar with them ``in any fashion.''

But several months after his hearing, Mr. McConnell was deposed, under oath, about those same documents. In his sworn deposition, Mr. McConnell testified that he was the first lawyer to receive the documents. He drafted a newspaper editorial citing information that came directly from those documents. He testified that he reviewed and signed a legal brief that incorporated the stolen documents. And, even though he told the committee that he was not familiar with the documents ``in any fashion,'' during his deposition he testified that he did not see any indication on the documents that they were confidential or secret. How could he know the documents were not confidential or secret, if, as he testified before the committee, he was not familiar with them ``in any fashion''? Given these facts, it is hard to square Mr. McConnell's testimony before the committee with his sworn deposition testimony a couple months later.

The litigation over these documents remains ongoing. We do not know how it will conclude. We do not know whether Mr. McConnell and his law firm will be held liable for the theft of these documents. But what is the Senate going to do if we confirm this individual, and at some later date he or his law firm is found liable for theft? At that point, it will be too late. Members will not be able to reconsider their votes. The Wall Street Journal recently opined that Mr. McConnell's ``changing story about his lead paint advocacy is enough by itself to disqualify him from the bench.'' I could not agree more.

In another instance, I asked in written questions the degree of awareness or notification that he or his law firm had regarding rallies that were held outside or near the Superior Court in Providence during the lead-paint trials in September 2002. He replied ``None.'' However, there is email traffic that indicates Mr. McConnell was, in fact, aware of the demonstrations. This email was produced in the lead paint litigation as part of Sherwin Williams's motion for a new trial. In other words, Mr. McConnell and his firm had this in their possession when he was asked about it by the committee.

Inconsistent answers were provided with regard to Mr. McConnell's relationship with the ACLU as well. In response to the question ``Did you, in fact, represent the ACLU in the matter?'' Mr. McConnell said ``I entered an appearance as counsel.'' Yet in response to another question regarding any matters in which he provided legal services to the ACLU or any affiliate thereof, he replied, ``I have never provided legal services to the ACLU or any affiliate thereof.'' I find this answer confusing at best.

These types of responses indicate, at a minimum, a careless approach in his response to the legitimate inquiries of this committee. They could also be viewed as indicating a lack of candor. Either way, they do not reflect the standard we should expect from an individual who seeks confirmation to the Federal judiciary.

These concerns lead me to believe this nominee is not qualified to serve as a U.S. district judge. Finally, I note Mr. McConnell received a low rating from the ABA--a rating of substantial majority qualified, minority not qualified.

My concerns are shared by the U.S. Chamber of Commerce, and I take their views very seriously because the Chamber only rarely takes positions on judicial nominations. In a letter to this committee, the Chamber wrote:

Mr. McConnell's actions during his career as a personal injury lawyer and past statements demonstrate his disregard for the rule of law, an activist judicial philosophy and obvious bias against businesses.

For the reasons I have articulated--one, his active partisanship which I believe he will carry with him into the judiciary; two, his legal theories being outside the mainstream; three, his lack of judicial temperament; four, his questionable business practices; and five, his lack of candor with the committee--and other concerns which I have not expressed today, I shall oppose this nomination.

I will conclude by saying this. I have supported the overwhelming majority of President Obama's judicial nominees. If it were up to me, I would not have nominated many of those individuals, but I supported them nonetheless. Mr. McConnell is in an entirely different category. I believe he misled the committee when he testified before us. For that reason alone, I do not think he should be rewarded with a lifetime appointment to the Federal bench. Even if I did not have that concern, I could not support this nominee.

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