[Congressional Record Volume 157, Number 58 (Tuesday, May 3, 2011)]
[Senate]
[Pages S2596-S2601]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      NOMINATION OF JACK McCONNELL

  Mr. CORNYN. Madam President, I rise to speak on a nomination that is 
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 for 
about 30-plus years, I believe it is imperative that I voice my strong 
concerns and, indeed, my objections to the nomination of Jack McConnell 
to become a U.S. district judge prior to the vote we will have tomorrow 
morning on a cloture vote.
  The reason I was attracted, like so many others, I think, to law 
school and the legal profession was because of the majesty of the 
notion of the rule of law, its importance to our democracy, the 
responsibilities that lawyers owe not just to themselves, to enrich 
themselves, but to their clients--the fiduciary duty that a lawyer has 
to represent a client. Then, of course, the ethical standards, which 
some might scoff at but which actually work pretty well. They keep 
lawyers, for the most part, accountable to the high ethical standards 
imposed by the legal profession.
  Unfortunately, and I am sorry to have to say this, but the hard truth 
is Mr. McConnell's record--which I will describe in a moment--is one of 
not upholding the rule of law but perverting the rule of law, ignoring 
the responsibilities he had to his client, and manipulating those 
ethical standards in order to enrich himself and his law partners.
  First, let me just say that Mr. McConnell, when he came before the

[[Page S2597]]

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: Regardless of who nominates an individual, 
party affiliation aside, I don't think the Senate, as an institution, 
should tolerate a nominee who essentially misrepresents the facts in 
the context of a confirmation process. This involved his participation 
in or involvement with a set of stolen confidential documents his law 
firm obtained in a lawsuit against the Sherman-Williams Company.

  In 2010, in his answers to written questions to the committee, Mr. 
McConnell told members of the committee: ``I would not say I was 
familiar with the documents in any fashion.'' Only a few months later, 
in September 2010, this same nominee gave a deposition in an Ohio 
court, where he testified 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 has 
unequivocally stood by his original statement to committee members.
  I reiterate, this body should not approve or confirm, for a lifetime 
appointment, 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 of Texas, I have come to respect lawyers who handle all 
sorts of cases--lawyers who prosecute criminal cases, lawyers who 
defend criminal cases, lawyers who 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 has advocated--it is clear from the evidence--a results-
oriented view of the law and manipulated it for his personal gain. 
These theories he has advanced, ostensibly on behalf of his client, 
have been rejected, not just by people like me but by a very broad 
range of people 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 longstanding 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 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 I will speak 
more on 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 that not only does he still adamantly believe in these 
radical, unprecedented legal theories, rejected by the highest court in 
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 he believed their decisions ``let the wrongdoers off 
the hook.'' In other words, Mr. McConnell made clear he believes the 
law should be manipulated to serve his agenda, not to uphold the rule 
of law, nor to respect the very bodies that are responsible under our 
system for interpreting law and rendering judgment.
  Mr. McConnell's outburst was not particularly surprising, given his 
public admission previously that he is ``an emotional personal 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 Jack McConnell would be, I am sorry to say: biased 
against a certain class of people and untethered to the rule of law.
  Mr. McConnell's practices also 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 attorneys general, first against tobacco companies and 
then lead-based paint manufacturers. Of course, I am not saying tobacco 
companies and other companies should not 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. The litigation he constructed and 
devised, the scheme 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 attorney's 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 ``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. 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 manipulate it in order to 
maximize their economic gain.
  Some of these lawyers, including Mr. McConnell's firm, have pocketed 
what amounts to hundreds of thousands of dollars 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 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 important, 
however, the outsourcing of suits to private trial lawyers on a 
contingent-fee basis creates both the opportunity and appearance for 
corruption by allowing State officials to reward their friends and 
campaign contributors.
  One reason I have 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 3 years in the 
Federal penitentiary for attempting to illegally channel millions of 
dollars in a tobacco settlement, money that was due to the State of 
Texas, but he steered it to a lawyer friend of his by trying to 
backdate 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, raise 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 
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

[[Page S2598]]

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 No. 4 campaign 
contributor to that organization.

  There is nothing wrong with people contributing money to political 
candidates or parties or causes they believe in. But it is another 
matter when these contributions are made in connection with no-bid 
contracts or apparent political favors. It is 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 payout for his work 
in the tobacco litigation I mentioned a moment ago--$2.5 to $3.1 
million a year through 2024. For anyone who would praise Mr. McConnell 
for giving up a successful legal career in order to serve as a Federal 
judge, remember he would be reaping huge windfalls at the expense of 
taxpayers long into his tenure as a Federal judge.
  Some Senators will say that 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. I cannot agree 
and neither does, by the way, the U.S. Chamber of Commerce. They have 
taken an unprecedented step of opposing this nomination.
  I ask unanimous consent that letter be printed in the Record 
following my remarks.
  The PRESIDING OFFICER (Mr. Tester). Without objection, it is so 
ordered.
  (See exhibit 1.)
  Mr. CORNYN. The Chamber has taken this unprecedented step of opposing 
his nomination and declaring him ``unfit to serve.'' In fact, this is 
the first time in its 99-year history they have opposed a district 
court nominee.
  My colleagues have asked me whether I believe that Texas businesses 
and businesspeople 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 am saying or look for some 
proof, I would just say: Read the record. I am convinced you would have 
trouble looking your constituents in the eye and telling them you 
believe Mr. McConnell would be fair to all litigants in his courtroom 
and, in this case, especially businesses that 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 by saying: ``There are wrongs that need to be righted and 
that is how I see the law.'' That doesn't cite any applicable legal 
standard. It doesn't actually take into account law as we know it, just 
wrongs 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're sued and forced to by a jury.''
  Given his tendency to view lawsuits against businesses as a movement 
against societal injustice, it is difficult to see how Mr. McConnell 
could put those personal views aside and give all litigants in his 
courtroom a fair trial, a right which they are guaranteed under our 
Constitution and laws. I believe a vote to support Mr. McConnell's 
nomination is a vote to create yet another court where trial lawyers 
will repeatedly prevail in frivolous litigation against American 
businesses. That is something we ought not allow.
  Mr. McConnell's behavior during his career and confirmation 
procession demonstrates a lack of ethics and temperament necessary to 
serve as a Federal judge. I hope a President would never appoint 
someone such as Jack McConnell, but apparently everyone makes mistakes, 
including this nomination by this President. Instead of stubbornly 
digging in his heels, usually the President has agreed to withdraw 
nominees 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 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.
  I yield the floor.

                               Exhibit 1

                                        Chamber of Commerce of the


                                     United States of America,

                                   Washington, DC, March 30, 2011.
     Hon. Patrick Leahy,
     Chairman, Committee on the Judiciary,
     U.S. Senate, Washington, DC.
     Hon. Charles Grassley,
     Ranking Member, Committee on the Judiciary,
     U.S. Senate, Washington, DC.
       Dear Chairman Leahy and Ranking Member Grassley: The U.S. 
     Chamber of Commerce, the world's largest business federation 
     representing the interests of more than three million 
     businesses and organizations of every size, sector, and 
     region, strongly opposes the nomination of John ``Jack'' 
     McConnell to serve on the United States District Court for 
     the District of Rhode Island.
       Mr. McConnell's past statements, conduct as a personal 
     injury plaintiffs' lawyer, and lackluster ABA rating raise 
     serious concerns about his fitness to be confirmed to a 
     lifetime appointment to the federal bench. Although the 
     Chamber has historically stayed away from debates surrounding 
     federal district court nominees, we believe that a response 
     is warranted in this circumstance given Mr. McConnell's 
     record.
       Our opposition begins with Mr. McConnell's mediocre 
     ``substantial majority qualified, minority unqualified'' 
     rating from the American Bar Association. For a practicing 
     lawyer with 25 years of experience to obtain such a low 
     rating speaks poorly of his legal abilities. It is likely 
     that he generated negative comments from judges before whom 
     he appeared and/or from lawyers who know him.
       Mr. McConnell's ABA rating should come as no surprise given 
     his past statements, which raise serious questions about 
     whether he will follow precedent and the rule of law. For 
     example, in 1999, Mr. McConnell was hired on a contingency 
     fee basis by the State of Rhode Island to sue paint companies 
     under theories of liability that exceeded the bounds of well-
     settled law. After nine years of protracted litigation, and 
     after millions of dollars spent by defendants, the Rhode 
     Island Supreme Court unanimously (4-0) rejected Mr. 
     McConnell's misguided interpretation of public nuisance law. 
     Mr. McConnell demonstrated little respect for the Supreme 
     Court's ruling and publicly attacked the decision in an op-ed 
     that he penned for The Providence Journal, claiming that the 
     justices ``got [the decision] terribly wrong'' by letting 
     ``wrongdoers off the hook.''
       Mr. McConnell's public criticism of the Rhode Island 
     Supreme Court's lead paint ruling should also give the 
     Committee pause because it casts light on a judicial 
     philosophy that appears to be outcome-driven rather than 
     based on interpreting and applying the law. Indeed, Mr. 
     McConnell has publicly affirmed his support for ``an active 
     government'' that should not ``stand on the sidelines'' and 
     that ``[he] see[s] the law'' as a mechanism to redress 
     ``wrongs that need to be righted.'' Considering these 
     statements together, a picture of a judicial nominee who will 
     legislate from the bench begins to emerge.
       The Chamber is equally concerned that Mr. McConnell lacks 
     the capacity to be an impartial jurist, especially against 
     business defendants who may appear before him. Mr. McConnell 
     has defined his career by suing business defendants. As his 
     own Committee questionnaire indicates, of the top ten cases 
     he views as the ``most significant'' litigations of his legal 
     career, all but two involve actions against businesses, and 
     none involved him representing or defending a business. Worse 
     still, when asked by the Columbus Post Dispatch in 2006 about 
     the possibility of future lead paint litigation, he said 
     that, based on history, he had ``absolutely no confidence'' 
     that defendant paint companies would do the right thing. He 
     added ``[t]he only time is when they're sued and forced to by 
     a jury.'' How could a business hope to receive an impartial 
     hearing in Mr. McConnell's courtroom when these statements 
     show that the deck is already stacked so heavily against 
     them?
       Moreover, Mr. McConnell's ability to render fair and 
     impartial rulings from the bench should be seriously 
     questioned in light of the potentially significant financial 
     windfalls that he stands to recover for the next 15 years. 
     According to Mr. McConnell's questionnaire, he is scheduled 
     to receive millions of dollars annually through 2024 from an 
     organization closely tied with his current employer, the 
     Motley Rice plaintiffs' firm. This has all the appearance of 
     a conflict of interest and it is difficult to see how Mr. 
     McConnell could render impartial judgments in matters 
     involving plaintiffs' law firms while simultaneously 
     receiving millions of dollars in compensation from another 
     plaintiffs' firm.
       Ultimately, we are concerned that Mr. McConnell's apparent 
     bias against business defendants, underlying judicial 
     philosophy, and questionable respect for the rule of law, 
     will lead to the multiplication of baseless lawsuits in his 
     courtroom with untold consequences to businesses large and 
     small

[[Page S2599]]

     across the country. Given the limited number of judges who 
     currently serve in the District of Rhode Island, it is not 
     hard to imagine a generation of enterprising personal injury 
     lawyers flocking to a new ``magnet jurisdiction'' at the 
     federal level with a chance to draw such a plaintiff-lawyer 
     friendly judge. State courts like those in Madison County, 
     Illinois have amply demonstrated the problems that can arise 
     from courts that accept plaintiffs' claims no matter their 
     merits. Finally, as most litigators understand, federal 
     judges exercise virtually unreviewable discretionary 
     authority in many circumstances, and the chance of the 
     appellate courts correcting every misstep is unrealistic. As 
     such, the Chamber must urge the Committee to resist the 
     confirmation of a lawyer with an animus against one type of 
     defendant.
       As Mr. McConnell has not demonstrated that he would provide 
     the kind of fair and impartial judicial temperament needed to 
     be a federal judge, as well as his demonstrated bias against 
     a clear class of litigants, the Chamber urges you to oppose 
     this nomination. Should Mr. McConnell's nomination be 
     considered on the Senate floor, the Chamber may consider 
     votes on, or in relation to, his nomination in our annual How 
     They Voted scorecard.
           Sincerely,
                                                  R. Bruce Josten.

  Mr. CORNYN. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. LEAHY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Mr. President, last night, Majority Leader Reid was forced 
to file another cloture petition on a Federal judicial nominee, the 
fifth required to be filed during President Obama's term. Among the 
highly qualified nominees being stalled is Jack McConnell, who is 
nominated to a vacancy on the United States District Court for the 
District of Rhode Island.
  I am concerned that we have to file cloture on nominations that 
should simply have an up-or-down vote. I hope we are not returning to 
the situation we had during the Clinton administration when my friends 
on the Republican side of the aisle pocket filibustered 61 of his 
nominees.
  We tried to change that in the 17 months I was chairman during the 
first 2 years of President Bush's first term when I moved 100 of 
President Bush's nominees through the Senate. In the remaining 2\1/2\ 
years, the Republicans were in charge, and the Senate confirmed another 
105. We tried to change what had been an unfortunate procedure. I hope 
we are not going back to that.
  Jack McConnell has the strong support of his home State Senators, 
bipartisan support from those in his home State, and his nomination has 
been reported favorably by a bipartisan majority of the Judiciary 
Committee multiple times. This nomination is one of many that have been 
stranded on the Senate's Executive Calendar for many months stalled by 
Republican objection to proceeding to debate and vote.
  Just a few years ago, Republican Senators argued that filibusters of 
judicial nominees were unconstitutional, and that every nominee was 
entitled to an up-or-down vote. They unsuccessfully filibustered 
President Obama's first judicial nominee, and have stalled many others. 
Cloture is now being required to overcome another in a series of 
Republican filibusters in order to vote up or down on a judicial 
nominee at a time when extensive, and extended, judicial vacancies are 
creating a crisis for the Federal justice system and all Americans.
  With these filibusters, the Senate's Republican leadership seems 
determined to set a new standard for obstruction of judicial 
nominations. I cannot recall a single instance in which a President's 
judicial nomination to a Federal trial court, a Federal district court, 
was blocked by a filibuster.
  When I came to the Senate, the President of the United States was 
Gerald Ford, whose statue we just unveiled in the Rotunda. We did not 
filibuster any of his Federal district court nominees. We did not 
filibuster any of President Jimmy Carter's district court nominees. We 
did not filibuster any of President George H. W. Bush's district court 
nominees.
  We did not filibuster on the floor any of President Clinton's or any 
of President George W. Bush's nominees. Somehow the rules have changed 
for President Obama.
  This is troubling as chairman of the Judiciary Committee, but also 
troubling to the Federal judiciary nationwide. So I did a little 
research. Looking back over the last six decades, I found only three 
district court nominations--three in over 60 years--on which cloture 
was even filed. For two of those, the cloture petitions were withdrawn 
after procedural issues were resolved. For a single one, the Senate 
voted on cloture and it was invoked. All three of those nominations 
were confirmed. I trust that the nomination of Jack McConnell will also 
be confirmed.
  From the start of President Obama's term, Republican Senators have 
applied a heightened and unfair standard to President Obama's district 
court nominees. Senate Republicans have chosen to depart dramatically 
from the long tradition of deference on district court nominees to the 
home State Senators who know the needs of their States best. Instead, 
an unprecedented number of President Obama's highly qualified district 
court nominees have been targeted for opposition and obstruction.
  That approach is a serious break from the Senate's practice of advice 
and consent. Since 1945, the Judiciary Committee has reported more than 
2,100 district court nominees to the Senate. Out of these 2,100 
nominees, only five have been reported by party-line votes. Only five 
total in the last 65 years. Four of these five party-line votes have 
been against President Obama's highly qualified district court 
nominees. Indeed, only 19 of those 2,100 district court nominees were 
reported by any kind of split rollcall vote at all, and five of those, 
more than a quarter, have been President Obama's nominees, including 
Mr. McConnell.
  Democrats never applied this standard to President Bush's district 
court nominees, whether in the majority or the minority. And certainly, 
there were nominees to the district court put forth by that 
administration that were considered ideologues. All told, in 8 years, 
the Judiciary Committee reported only a single Bush district court 
nomination by a party line vote. Somehow President Obama is being 
treated differently than any President, Democratic or Republican, 
before him.
  That was the controversial nomination of Leon Holmes, which Senators 
opposed because of the nominee's strident, intemperate, and insensitive 
public statements over the years. Judge Holmes argued that ``concern 
for rape victims is a red herring because conceptions from rape occur 
with the same frequency as snow in Miami,'' and called concerns about 
pregnant rape victims ``trivialities.'' He suggested that it was 
correct to say that slavery was just God's way of teaching White people 
the value of servitude. He wrote that he did not believe the 
Constitution ``is made for people of fundamentally differing views.'' 
We opposed Judge Holmes nomination, strongly, but we did not block it 
from consideration by the Senate. He was not filibustered. His 
nomination was confirmed without the need for a cloture vote.
  With judicial vacancies at crisis levels, affecting the ability of 
courts to provide justice to Americans around the country, we should be 
debating and voting on each of the 13 judicial nominations reported 
favorably by the Judiciary Committee and pending on the Senate's 
Executive Calendar. No one should be playing partisan games and 
obstructing while vacancies remain above 90 in the Federal courts 
around the country. With one out of every nine Federal judgeships still 
vacant, and judicial vacancies around the country at 93, there is 
serious work to be done.
  Regrettably, Senate Republicans seem intent on continuing with the 
practices they began when President Obama first took office, engaging 
in narrow, partisan attacks on his judicial nominations.
  These unfair attacks started with President Obama's very first 
judicial nomination, David Hamilton of Indiana, a 15-year veteran of 
the Federal bench. President Obama nominated Judge Hamilton in March 
2009, after consultation with the most senior and longest-serving 
Republican in the Senate, Senator Dick Lugar of Indiana, who then 
strongly supported the nomination. Rather than welcome the nomination 
as an attempt by President

[[Page S2600]]

Obama to step away from the ideological battles of the past, Senate 
Republicans ignored Senator Lugar's support, caricaturing Judge 
Hamilton's record and filibustering his nomination. The Senate was not 
able to have an up-or-down vote on his nomination until we overcame a 
Republican filibuster 8 months after he was nominated. After rejecting 
the filibuster with an overwhelming vote of 70 to 29, Judge Hamilton 
was confirmed.
  Republican Senators who just a few years ago protested that such 
filibusters were unconstitutional, Republican Senators who joined in a 
bipartisan memorandum of understanding to head off the ``nuclear 
option'' and agreed that nominees should only be filibustered under 
``extraordinary circumstances,'' abandoned all that they said they 
stood for and joined together in an attempt to prevent an up-or-down 
vote on President Obama's very first judicial nominee.
  In other words, the standard they said should be applied to every 
single President in the history of this country suddenly was changed 
when this President came in. They chose to ignore their own standards 
outlined in a letter sent to President Obama not long after he took 
office, and before he had made a single judicial nomination, in which 
Senate Republicans threatened to filibuster any nomination made without 
consultation. Of course, President Obama did consult with the senior-
most Republican Senator on a nomination to fill a vacancy in his home 
State, but still they filibustered. In fact, he has consistently 
consulted with home State Senators, both Republicans and Democrats. It 
makes you wonder what it is about President Obama which makes 
Republicans want to change the rules for him, rules that existed for 
every President prior to him.
  Since the filibuster of Judge Hamilton, Senate Republicans have 
required the majority leader to file cloture on three more highly 
qualified circuit court nominees. This is a far cry from Republican 
insistence that every nominee is required by the Constitution to have 
an up-or-down vote, or even from the ``extraordinary circumstances'' 
Republican Senators now claim to be the basis for a filibuster.
  The PRESIDING OFFICER. The Senator has used his 10 minutes.
  Mr. LEAHY. Mr. President, I ask unanimous consent for 5 minutes more. 
I know there are other Senators waiting to speak.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. No Senator could claim the circumstances surrounding the 
filibusters of President Obama's circuit court nominations to be 
extraordinary. Republicans filibustered the nomination of Judge Barbara 
Keenan, a nominee with nearly 30 years of judicial experience, and who 
had the distinction of being the first woman to hold a number of 
important judicial roles in Virginia. She was ultimately confirmed 99-0 
as the first woman from Virginia to serve on the Fourth Circuit. Senate 
Republicans filibustered the nomination of Judge Thomas Vanaskie, whose 
16 years of experience as a Federal district court judge in 
Pennsylvania are now being used in service to the Third Circuit Court 
of Appeals, after his overwhelming confirmation. Senate Republicans 
filibustered Judge Denny Chin of the Second Circuit, another nominee 
with 16 years of experience as a Federal district court judge. He is 
now the only active Asian Pacific American judge to serve on a Federal 
appellate court, after being confirmed unanimously.
  In addition, the Republicans' across-the-board practice of refusing 
consent and delaying consideration of even nominations with unanimous 
support has led to a steady backlog of pending nominations. The refusal 
of Republicans to give consent to consideration meant that 19 judicial 
nominations were stranded on the Senate's Executive Calendar at the end 
of last Congress. There are 13 judicial nominations now on the calendar 
that Democrats are prepared to consider.
  Each of these nominations should be considered without unnecessary 
delay. If we do that, we can reduce the judicial vacancies to 80 for 
the first time since July 2009. Yet we are forced to overcome 
filibusters even to have a debate and vote on district court 
nominations.
  These filibusters stand in stark contrast to the views of Republican 
Senators about the role of the Senate in considering judicial nominees 
when the President was from their own party. In 2005, when the 
Republican majority threatened to blow up the Senate to ensure up-or-
down votes for each of President Bush's judicial nominations, Senator 
McConnell, then the Republican whip, said:

       Any President's judicial nominees should receive careful 
     consideration. But after that debate, they deserve a simple 
     up-or-down vote. . . . It's time to move away from advise and 
     obstruct and get back to advise and consent. The stakes are 
     high . . . . The Constitution of the United States is at 
     stake.

  Other Republican Senators made similar statements back then. Many 
declared that they would never support the filibuster of a judicial 
nomination. Others subscribed to the standard that the so-called gang 
of 14 formulated that they would only filibuster in ``extraordinary 
circumstances.'' The only extraordinary circumstance in this case is 
the judicial vacancies crisis that has prompted the President, the 
Chief Justice, the Attorney General, bar associations and many others 
to call for prompt consideration and confirmation of judicial nominees.
  Yet rather than applying consistent standards and debating and voting 
on judicial nominations favorably reported by the Judiciary Committee, 
we see Republican Senators adopting a double standard and engaging in a 
dramatic break from the Senate's tradition by filibustering this 
district court nomination.
  Jack McConnell is an outstanding lawyer. President Obama has 
nominated him three times to serve as a Federal district court judge in 
Rhode Island. With more than 25 years of experience as a lawyer in 
private practice, Mr. McConnell has the strong support of both Rhode 
Island Senators, Senator Reed and Senator Whitehouse. He has been 
reported by a bipartisan majority of the Judiciary Committee three 
times.
  Individuals and organizations from across the political spectrum in 
that State have called for Mr. McConnell's confirmation. The Providence 
Journal endorsed his nomination by saying

       in his legal work and community leadership [he] has shown 
     that he has the legal intelligence, character, compassion, 
     and independence to be a distinguished jurist.

  Leading Republican figures in Rhode Island have endorsed his 
nomination. They include First Circuit Court of Appeals Judge Bruce 
Selya; Warick Mayor Scott Avedisian; Rhode Island Chief Justice Joseph 
Weisberger; former Rhode Island Attorney General Jeffrey Pine; former 
Director of the Rhode Island Department of Business, Barry Hittner; 
former Rhode Island Republican Party Vice-Chair John M. Harpootian; and 
Third Circuit Court of Appeals Judge Michael Fisher.
  Some oppose him because he successfully represented plaintiffs, 
including the State of Rhode Island itself, in lawsuits against lead 
paint manufacturers. Some here in the Senate may support the lead paint 
industry. That is their right. I support those who want to go after the 
people who poison children. That is what Mr. McConnell did. But nobody 
should oppose Mr. McConnell for doing what lawyers do and vigorously 
representing his clients in those lawsuits.
  The Senate has finally begun to debate this nomination, and some have 
wasted no time in coming to the Floor and distorting, I believe, Mr. 
McConnell's testimony before the committee. I disagree with Senator 
Cornyn's characterization of Mr. McConnell's testimony. As chairman, I 
take seriously the obligation of nominees appearing before the 
Judiciary Committee to be truthful. I would be the first Senator to 
raise an issue if there were any legitimate question as to the accuracy 
of Mr. McConnell's testimony. But there is not.
  The accusation stems from Mr. McConnell's recent testimony as a 
witness deposed in a lawsuit brought by one of the paint companies 
engaged in litigation with Mr. McConnell's client. That lawsuit alleges 
that Motley Rice, the law firm where Mr. McConnell is employed, 
improperly obtained a 34-page confidential company document from one of 
the lead paint companies. Mr. McConnell is not a party to the lawsuit, 
but was deposed last September only as a witness. His answers at his

[[Page S2601]]

deposition concerning his knowledge of the confidential document were 
the same as his responses to written questions from Senator Kyl 
following his hearing nearly a year ago, and the same as his responses 
to Senator Lee in written questions this February. At no time has there 
been a suggestion of wrongdoing by Mr. McConnell in this lawsuit.
  Far from establishing that Mr. McConnell was untruthful with the 
committee, the deposition transcript obtained by the Committee after it 
was unsealed by the Court only further validates Mr. McConnell's 
account of his knowledge of this document. To believe that Mr. 
McConnell was untruthful with the committee, some Senators would have 
to disbelieve not just his answers to written questions from committee 
members, but also Mr. McConnell's sworn testimony as a witness being 
deposed in a lawsuit. Some Senators may feel strongly that Mr. 
McConnell and his firm were wrong to sue lead paint companies, but 
there is simply no basis believing that Mr. McConnell was untruthful 
with the committee. I reject those conclusions.
  These Republican filibusters of district court nominations are 
unprecedented. The consequences for the American people and their 
access to justice in our Federal courts are real. I urge the Senate to 
reject these efforts and reject this filibuster.
  Mr. President, I appreciate the courtesy of my colleagues in giving 
me the extra time, the distinguished senior Senator from Delaware and 
the distinguished Senator from Connecticut.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Delaware.
  Mr. CARPER. Mr. President, I am always happy to yield a little more 
time to the chairman of the Judiciary Committee.

                          ____________________