Court Vacancies

COURT VACANCIES

BREAK IN TRANSCRIPT

Mr. CORNYN. I regret that the Senator from Louisiana is unwilling to cooperate and provide everybody a chance to be heard, but I will proceed.

I wish to speak to the nomination of Jack McConnell to the Federal district bench. I spoke on this nomination yesterday. I have authored an op-ed piece in the Washington Times expressing my concern. I wish to summarize my concerns for my colleagues' benefit and their consideration.

I serve as a member of the Judiciary Committee, as does the Senator from Iowa, Mr. Grassley. Before the Senate Judiciary Committee, this nominee was asked about allegations of theft of corporate documents arising out of some lead paint litigation that his law firm was pursuing in the State of Rhode Island. That has been the subject of some discussion.

I will ask unanimous consent to have several documents printed in the Record at this time.

First, I ask unanimous consent that after my comments, the complaint of the Sherwin Williams Company v. Motley Rice and others be printed in the Record.

The ACTING PRESIDENT pro tempore. Without objection, it is so ordered.

(See exhibit 1.)

Mr. CORNYN. I ask one further unanimous consent, and that would be that an article from Legal Newsline about a discovery dispute still delaying the resolution of the theft case against Motley Rice be printed in the Record.

The ACTING PRESIDENT pro tempore. Without objection, it is so ordered.

(See exhibit 2.)

Mr. CORNYN. What I think these documents demonstrate is that not only did Mr. McConnell intentionally mislead the Senate Judiciary Committee with regard to his possession of these stolen documents, but now there has been for some years--even after the lead paint cases have been essentially dismissed by the Rhode Island Supreme Court with the State and Mr. McConnell and his law firm having lost--ongoing litigation by one of the defendants in that case suing for tortious interference with their property; also conversion--in other words, theft, as the Presiding Officer knows--of their private, proprietary documents, including their litigation strategy, including their trade secrets and the like.

The article, dated April 21, 2011, that I have made part of the record shows that dispute over the theft of these documents remains unresolved. In other words, Mr. McConnell and his law firm's participation in this ongoing dispute remains unresolved. I don't know why the majority leader would choose to bring up a nomination of somebody for a lifetime appointment to the Federal bench when serious allegations about his law firm's participation and his personal participation in the theft of corporate documents in pursuit of litigation remains unresolved. I think it is a terrible mistake.

I know the Senator from New York suggests we ought to just go ahead and vote on cloture because he knows then that because our Democratic friends control 53 votes in the Senate, Mr. McConnell will be confirmed. But I am concerned that because the ethical allegations made against Mr. McConnell and his law firm remain unresolved, this is a terrible time for us to be voting on a lifetime tenure. If he were to be confirmed and we find out later on that the court actually finds he did participate in this conspiracy to steal these corporate documents, what would that say about the Senate and about this process, our deliberative process? I think it would be a scandal. It would be a scandal.

Finally, let me say I have expressed my concerns previously about the scheme that a group of very smart trial lawyers have dreamed up to sue legal industries for huge amounts of money by making alliances with State attorneys general and then suing in the name of the State but then in the end settling these cases for billions of dollars--in some cases, hundreds of billions of dollars--and these lawyers reaping a windfall of billions of dollars in attorney's fees. That is something Stuart Taylor--I think one of the more level-headed commentators about legal matters--has said, that this has indeed morphed the rule of law into the rule of lawyers, and ultimately consumers will have to pay more in terms of higher prices and the lawyers reap a windfall.

The very same lawyers who are hired through these no-bid, noncompete contracts are indeed the political supporters of these very same attorneys general, raising at least the appearance of impropriety and a pay-to-play system of providing litigation opportunities to these lawyers from which they reap billions of dollars and after which they funnel campaign contributions back to the very same State officials who have, in fact, authorized them to sue on behalf of the State. This is unseemly, to say the very least about it.

Finally, I would say Mr. McConnell continues by his own admission to be eligible to receive up to $3.1 million a year in one of these shakedown-industry lawsuits where these trial lawyers have worked with State attorneys general to sue on behalf of the State, not in cases that were actually tried but were actually settled under an existential threat to these businesses and these industries.

At a time when we are talking, as Senator Portman did, about job creation, the idea that we would be confirming a lawyer to a lifetime appointment to the Federal bench where he could then serve as a venue, given the venue shopping that frequently goes on in this type of litigation, we can expect, if Mr. McConnell finds himself confirmed as a Federal judge, that in the future litigants will find a warm reception in his court to these ethically dubious schemes.

I think it is an extraordinary circumstance according to the standards set by the so-called Gang of 14. It is not something we will be doing often. But when an ethically flawed nominee such as this nominee is proposed by the President of the United States on three different occasions, and Senator Reid, the majority leader, as is his right, tries to slip this stealth nominee through when people are paying attention to other things, and we have not had adequate time to debate and expose in the record so Senators can make a good judgment about the facts and do their duty as individual Senators, I think it is a terrible shame.

I intend to vote against cloture, and I hope my colleagues will so we can have additional time to review this nominee's credentials and make a good-faith assessment on behalf of all of our constituents.

BREAK IN TRANSCRIPT

Exhibit 2
[From Legal Newsline.com, Apr. 21, 2011]

Discovery Dispute Delaying Theft Case Against Motley Rice
(By John O'Brien)

CLEVELAND (Legal Newsline)--The court battle over the alleged theft of confidential documents by plaintiffs firm Motley Rice is stagnant as Sherwin-Williams attempts to make the firm respond to its discovery requests.

According to the online docket for the Cuyahoga County Court of Common Pleas, Sherwin-Williams has filed a motion to compel the firm to respond to written discovery deposition requests. Motley Rice, which filed lawsuits against Sherwin-Williams and other paint companies over lead-based paint, allegedly obtained privileged documents stolen by the company from a former employee.

According to a Jan. 31 order, Sherwin-Williams is filing a supplemental brief in support of its motion to compel Motley Rice's answers. Some of the case, which could have an impact on the pending nomination of Motley Rice attorney Jack McConnell to a federal judgeship in Rhode Island, has been filed under seal.

The Wall Street Journal mentioned the case in a recent editorial. McConnell's nomination was recently approved by an 11-7 vote of the Senate Judiciary Committee, and the matter will now go to the full Senate.

``In response to written questions from Arizona Senator Jon Kyle 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.

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.

Along the way, Sherwin-Williams claims, Motley Rice obtained a PowerPoint presentation given by the company's attorney's to its board of directors. The presentation outlined litigation costs and possible coverage by its insurers.

The company said the presentation was protected by attorney-client privilege, but Stephen Walker met with Motley Rice at Cleveland Hopkins Airport in 2006 to hand over the presentation. Walker had been laid off from his job in 2005 and had formerly assisted company officers, attorneys and executives with technical and design aspects of PowerPoint presentations.

Motley Rice did not notify Walker that it could not receive documents protected by privilege, the company says.

A trial was scheduled for last year but it was postponed. No new trail date has been set.

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 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 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 attorney 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.

BREAK IN TRANSCRIPT

Source