[Congressional Record Volume 157, Number 59 (Wednesday, May 4, 2011)]
[Senate]
[Pages S2641-S2644]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
NOMINATION OF JOHN McCONNELL
Mr. WHITEHOUSE. Madam President, I rise to speak in support of the
nomination of John McConnell to be a U.S. district judge in my home
State of Rhode Island. I had the occasion yesterday to be on the floor
and to associate myself with the remarks of my senior Senator, Jack
Reed, but I wish to add some remarks of my own regarding how worthy an
addition to the Federal bench Jack McConnell will be and to urge my
colleagues to support his nomination and, in particular, to support an
up-or-down vote on his nomination.
The McConnell nomination has been reported on three separate
occasions by the Senate Judiciary Committee, each time with a
bipartisan vote. This bipartisan backing is not a surprise, given the
broad support his nomination has found across the political spectrum in
my home State of Rhode Island. I will not read all the quotes of
support from prominent Republicans back home, but let me just touch on
a few.
Republican former Chief Justice Joseph R. Weisberger, an
extraordinarily respected jurist of our State's supreme court, stated,
for example, that McConnell:
. . . would be superbly qualified to preside as a Federal
judge over the most challenging and complex cases. He is a
man of keen intelligence and impeccable integrity. He would
be a splendid addition to the distinguished bench of the
United States District Court of Rhode Island.
Republican former attorney general of Rhode Island Jeffrey Pine
provides equally glowing reviews:
Throughout his career, Jack has demonstrated the kind of
legal ability, integrity, dedication to his client, and
willingness to fight hard for the cause of justice that makes
him a truly outstanding candidate for the Federal judiciary.
. . . In my opinion, he would bring the kind of experience to
the Federal bench that would make him an outstanding judge
presiding at trials, and a fair and impartial arbiter for
those who come before him.
I would add that Attorney General Pines' Republican predecessor as
attorney general, Arlene Violet, has been equally complimentary.
John Harpootian, the former Republican Party vice-chair, has added:
One of the greatest characteristics that I admire about
Jack so much is that, despite political differences of
opinion, he never allowed those differences to become
personal or to cloud his judgment. As a result, we have
always enjoyed spirited conversation regarding political
issues, but have remained great friends. These
characteristics lead me to unqualifiedly support Jack's
confirmation to the United States District Court for Rhode
Island.
There has been similar support beyond the Republican Party from the
editorial board of our State's leading newspaper, The Providence
Journal, owned by the Alexis Belo Corporation. Despite disagreeing with
McConnell on major litigation he brought in private practice, the paper
wrote not one but two separate editorials supporting his nomination.
The paper opined, for example:
Jack McConnell, in his legal work and community leadership,
has shown that he has the legal intelligence, character,
compassion, and independence to be a distinguished jurist.
The Providence Chamber of Commerce has weighed in to praise him as a
``well-respected member of the local community.'' Jack certainly has
richly deserved that title with all his various community service
throughout the years, whether for Crossroads Rhode Island, the State's
largest homeless center, Providence's Trinity Repertory Theater, the
Providence Tourism Council or other organizations.
In sum, those who know Jack McConnell as a lawyer and as a person
recognize that he will be a great district court judge, with a proper
understanding of the limited judicial role. A native Rhode Islander and
a graduate of Brown University, McConnell will make his State proud in
his service on the Federal bench, particularly at a time when our court
is straining under the workload caused by the vacancy he would fill.
Unfortunately, out-of-State interest groups have politicized the
McConnell nomination. I am not going to spend time now rebutting every
argument these special interests and their well-paid lawyers have
concocted to attack this nomination. Suffice it to say that Jack
McConnell has answered all the questions posed to him by this body,
leaving no doubt about his legal skill or his integrity.
I will briefly make two points, however.
[[Page S2642]]
No. 1, yes, Jack McConnell brought lawsuits against powerful
industries, including tobacco, asbestos, and lead paint. There is
nothing wrong with that. There is no dishonor in representing poisoned
kids, lung cancer patients or the bereaved widow of a mesothelioma
victim. It should not disqualify McConnell or anyone from confirmation.
The most important measures of a judicial nominee are legal expertise,
strong character, and a proper understanding of the judicial role, and
those are qualities that Jack McConnell possesses in abundance.
Yes, Jack McConnell has been active in politics, much like he has
been active in many other aspects of Rhode Island public life. The
question, however, is not whether he has been politically engaged in
the past but, rather, whether he will put aside his political advocacy
when he goes on the bench. I know he will. My senior Senator, Jack
Reed, knows he will. Mr. McConnell testified before the committee that
he would. Consider what Judge Bruce Selya of the First Circuit Court of
Appeals, a Republican appointee, said when interviewed by The
Providence Journal:
It would be a terrible rule to say candidates should be
excluded if they donate to their political parties in a
perfectly legal fashion.
The paper continued, describing the interview with Judge Selya:
Selya said that when Senators weigh the credentials of
political contributors who are nominated to the Federal
bench, the proper question is not how much money did they
give, but rather, can they make the transition from partisans
to impartial jurists. The judge said he believes McConnell
can do that.
Judge Selya is not only a leading Republican jurist in Rhode Island,
he is also a man of impeccable integrity, and his vouching for Jack
McConnell is entitled to considerable weight among all those who know
Judge Selya.
We must not disqualify talented and successful advocates merely
because of their prior political or legal advocacy. Some of my
Republican colleagues may not like the suits McConnell chose to bring.
I do not share that view, but fair enough. We should remember, however,
that lawyers we disagree with can make the transition from advocate to
arbiter. Lawyers nominated by Republican Presidents who defended
corporations all their private practices simply do not have a monopoly
over the proper judicial mindset.
Let me make a last point before I close. The tradition of this body
has been to give up-or-down votes to district court nominations
reported favorably by the Judiciary Committee and who have the support
of both home State Senators. That is an important tradition in this
body. Cloture has not historically been required. The Congressional
Research Service reports that from 1949 to 2009--over six decades--only
three cloture motions were ever made on district court nominations and,
in each case, each nomination ultimately was confirmed without the 30
hours of postcloture time being used. For every other district court
nomination in that 60-year stretch, no cloture motion has been
necessary.
We have departed from that tradition in this case, and I fear it is a
consequential departure. The majority leader has been forced to file a
cloture motion on this nomination. I, nevertheless, hold out hope our
Republican colleagues will allow the motion to be withdrawn and grant
an up-or-down vote to be held in short order. Doing so would be the
proper course of action, in keeping with this institution's best
traditions and most conducive to future comity on nominations. Indeed,
it would be consistent with the clearly held and firmly stated views my
Republican colleagues have indicated in the past.
Once again, I urge my colleagues to support the nomination of John
McConnell to the U.S. District Court for the District of Rhode Island.
I urge them to give deference to the judgment of Senator Reed and
myself in this area and, at a minimum, to grant him the up-or-down vote
that is Senate tradition for district court nominees backed by both
home State Senators who have emerged, in this case in a bipartisan
fashion, from the Judiciary Committee with clearance from the ABA and
the FBI. Jack has proven himself to be an excellent lawyer and public-
minded citizen of the highest integrity and he will be a great district
court judge.
I thank the Acting President pro tempore and yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Rhode Island.
Mr. REED. Madam President, I rise to join my colleague, Senator
Whitehouse, in strongly supporting the nomination of Jack McConnell to
be a United States district court judge for the District of Rhode
Island. Indeed, as my colleague indicated, there is a big issue here
beyond Mr. McConnell; which is whether we are going to institute a new
threshold of cloture, which could be routinely applied to all district
court judge nominees. As my colleague indicated, this is an
extraordinary departure from the history of this Senate going back
decades.
We have long adhered to the tradition that local Senators and the
local legal community and the local civic community are the best judges
for a potential nominee, subject, obviously, to the President's action
and, quite importantly, to the review by the American Bar Association
and, quite importantly, the background checks of the FBI, and, quite
importantly and very, very importantly, to the deliberations of the
Judiciary Committee here in the Senate. This has been the process for
both Republicans and Democrats. It has extended over decades, and it is
something I hope we can respect today through our deliberations and the
conclusion of these deliberations.
Turning to Mr. McConnell, we are fortunate, I believe, to have an
individual of his talent and his character. Jack is a graduate of Brown
University and Case Western Reserve University Law School. He clerked
for a justice of the Rhode Island Supreme Court. He has received
numerous accolades and awards, such as the National Association of
Attorneys General President's Award and Case Western Reserve
University's Martin Luther King, Jr., Award. He has been named to
numerous lists of the best lawyers. He has the top rating in both
ethics and achievement from Martindale-Hubbell, which is the service
that reviews and lists, practically, every attorney in the United
States.
But I do not simply want to repeat Jack's extraordinary resume of
hard work and success. I want to share some of my personal judgments.
He is fundamentally and extraordinarily a decent and honest person. He
started out from very humble beginnings. He has worked hard for
everything he has accomplished in his life. Through his hours of not
just legal work but pro bono work and volunteer work, he has
contributed more to the community than anyone I can think of in my home
State of Rhode Island. And he has done it without fanfare. He has done
it without self-promotion.
He was raised by his late father, who served in Korea with the U.S.
Marine Corps and continued to serve in the Marine Corps Reserve. His
mother Jane was a teacher. They demonstrated to him the values of hard
work and integrity and decency and honesty that have been the hallmark
of his efforts and career.
While he was also juggling a very demanding legal career and a family
and children, he took the time, early every Monday morning, to go to
Amos House, which is a soup kitchen in Providence. It is where the
poorest of the poor go simply to get some food for the day. He would
quietly and anonymously serve breakfast, without publicity, without
fanfare, because he saw this as being part of the community--someone
responsible not just for personal success, but for contributing back
because he has been fortunate in his life.
He was a Big Brother to a young man in the west end of Providence, a
poor neighborhood. He has taught first communion classes in his parish
for years. He has been a volunteer attorney at homeless legal clinics
in Providence and Pawtucket--two of our central cities. He has served
on numerous boards--Crossroads Rhode Island, the biggest and largest
homeless service in the State of Rhode Island. He has been there
working hard, tirelessly. He has chaired the Providence Tourism
Council, which has worked with the Greater Providence Chamber of
Commerce to promote the city of Providence.
These are the types of attributes, experiences, life experiences,
that form a person and also provide the basis for being a judge.
Because the quality I
[[Page S2643]]
think we all have to look for in a person, who is sitting in judgment
of complicated civil cases, serious criminal cases, but ultimately
cases involving men and women, is that they feel that this person
understands them and will be fair to them, regardless of whether they
are a large corporation or a poor person before the district court. I
am convinced Jack McConnell will do that--impartially, deliberately,
and carefully. These are the qualities he has exemplified throughout
his career.
Jack enjoys strong support and broad support throughout the State of
Rhode Island, and it is a reflection of his work not just as an
attorney but as a civic leader. I have heard from members from the
business community, the Rhode Island judiciary, the legal community,
Republican and Democratic elected officials, members of the clergy, as
well as individuals from Rhode Island's nonprofit sector and academic
sector. All of them have submitted letters for the record, but I want
to highlight a few.
The Greater Providence Chamber of Commerce called Mr. McConnell ``a
well-respected member of the local community, leading important civic,
charitable and economic development institutions including Crossroads
Rhode Island, the Providence Tourism Council and Trinity Repertory
Theatre.'' They do not oppose his nomination. If I were looking at the
business community, I would look at the local business community, not
the national, organized efforts, whose agenda is sometimes very far
removed from the needs of the small business men and women of Rhode
Island.
The Providence Journal, as my colleague has cited, has repeatedly
editorialized in favor of his nomination. He has received emphatic and
consistent endorsements. In May of 2010, they said:
Providence lawyer John J. McConnell Jr., whom President
Obama has nominated to serve on the U.S. District Court for
Rhode Island, is a very able attorney. He has also
demonstrated much civic commitment and leadership as a very
generous philanthropist and board member of various nonprofit
organizations in our area.
Furthermore:
Jack McConnell, in his legal work and community leadership,
has shown that he has the legal intelligence, character,
compassion and independence to be a distinguished jurist.
After no action was taken on Mr. McConnell's nomination by this body
in the previous session, the Providence Journal wrote, in November
2010, that Mr. McConnell is:
one of America's most able and successful litigators, and
has been a very energetic and generous leader in
philanthropies and other parts of community life. His
character and deep love of the law suggest strongly that he
will function as a disinterested judge--one able to look at
the facts of each case in the light of a close and rigorous
reading of statutory and constitutional law and precedent.
Indeed, his legal work and community leadership suggest that
he would be a distinguished jurist.
He is a man of tremendous character, recognized by community leaders.
The Institute for the Study & Practice of Nonviolence--an innovative
organization on the south side of Providence--their executive director,
Teny Gross, wrote in strong support.
Rhode Island Supreme Court Justice Joseph Weisberger, one of the most
respected jurists in the history of Rhode Island, said of his
nomination:
His great experience as a litigator has given him
exceptional knowledge of the intricacies of the rules and
practice and procedures of federal courts. He would be
superbly qualified to preside as a federal judge over the
most challenging and complex cases. He would be a splendid
addition to the distinguished bench of the United States
District Court of Rhode Island.
Justice Weisberger is a former Navy veteran and a 45-year veteran of
the Rhode Island bench, and he is a man who commands enormous respect
in Rhode Island.
The Republican mayor of Rhode Island's second largest city, Scott
Avedisian, has said:
Jack is a man of integrity, a strong sense of community,
and a very fair and forward-thinking individual.
This is a Republican elected official: ``a very fair and forward-
thinking individual.''
Business executive Merrill Sherman, an avowed believer in the free
market, a very successful entrepreneur and banker, concluded Mr.
McConnell ``has the temperament, demeanor and capacity to be an
excellent federal trial judge.''
So if Mr. McConnell is so bad for business, why are business leaders
in the State reflecting on his qualities and giving him accolades and
predicting he will be a distinguished jurist?
John Harpootian, another major Republican attorney in the State, a
distinguished attorney, stated:
In my view, however, the most important attribute is
integrity. Time and again, Jack has proven that he is a man
of great principle and integrity. While being a vigilant
advocate for his clients and the causes that he has taken up
during his professional career, Jack has always conducted
himself in the most ethical and professional manner; a trait
unfortunately sometimes not found among lawyers today.
One of the greatest characteristics that I admire about
Jack so much is that despite political differences of
opinion, he never allowed those differences to become
personal, or to cloud his judgement.
I am hard pressed, again, to believe the suggestions that have been
made that in some way Mr. McConnell is not a completely ethical person
because every bit of evidence from Rhode Island--Republicans,
Democrats, lawyers, business leaders--from a lifetime of observation
suggests that he is ethical.
But perhaps the most compelling words are the words of former Rhode
Island Republican Attorney General Jeff Pine. As Jeff concluded:
There is no question in my mind that Jack would be an
honest, principled, ethical, and fair judge. He would be a
credit to our state and judiciary. I enthusiastically support
his candidacy for the position on the federal bench.
This is our former Republican attorney general.
If that judgment is not sufficient, let me render another judgment.
This is in the form of a colleague, a former Pennsylvania Attorney
General, a Republican, who is now a member of the U.S. Court of Appeals
for the Third Circuit. This body, at the recommendation of the
Pennsylvania Senators, years ago, under President George W. Bush,
confirmed unanimously D. Michael Fisher to serve--after distinguished
service as a Republican attorney general in Pennsylvania--as a circuit
judge. Here is what Judge Fisher said:
I met and worked with Mr. McConnell when I was the elected
Attorney General of Pennsylvania from 1996 to 2003. We worked
very closely together on the national tobacco litigation . .
. and worked closely with Mr. McConnell. . . . We spent
considerable time together in New York and at meetings
elsewhere and I had the unique opportunity to assess Mr.
McConnell's legal abilities and his character which were both
outstanding. . . . John J. McConnell Jr. is an outstanding
nominee to serve on the U.S. District Court for the District
of Rhode Island, and I enthusiastically support his
nomination.
These are the words of a Federal circuit court judge, nominated by
President George W. Bush and confirmed unanimously by this Senate.
Again, I implore my colleagues to listen to what people who know Jack
McConnell have said and the words they have used: integrity, honesty,
character, independence, impartiality. Those are the words used by
people who know him, and that is the truth.
I urge not only on the merits, but also in terms of the traditions of
the Senate that we allow this vote to come to a final vote and that we
vote for Mr. McConnell.
But let my turn briefly to the claims made by some. Frankly, I am a
little bit leery to address these supposed criticisms, but they have
been leveled and I think there should be some response.
The first claim seems to be that Mr. McConnell is anti-business.
Well, outside of the support he has received from business leaders from
Rhode Island and the Providence Journal, which has a historic
reputation going back several years of being a prominent supporter of
business in Rhode Island, I think it is also good to reference the fact
that two insurance industry trade associations--the National
Association of Mutual Insurance Companies and the Property Casualty
Insurers Association of America--originally signed a letter in 2010
that stridently attacked Mr. McConnell.
However, in December of 2010, both of these associations, which
represent companies that scrupulously work for their shareholders,
withdrew their opposition because they stopped and looked at the facts.
They spoke to their Rhode Island insurance company members. They
examined the Republican support for Mr.
[[Page S2644]]
McConnell. They listened to what the Greater Providence Chamber of
Commerce had to say. To quote from the National Association of Mutual
Insurance Companies' letter:
Upon further consideration and consultation with our member
companies in Rhode Island, and after evaluating support for
Mr. McConnell from the local business community and former
Rhode Island Attorneys General Arlene Violet and Jeffrey
Pine, NAMIC withdraws its opposition to his nomination. . . .
Again, those who have carefully considered Jack McConnell have
acknowledged that he will bring no personal agenda to the courtroom, as
he has testified truthfully and accurately.
Another insinuation is that Mr. McConnell has not comported himself
in an ethical manner. This is a serious charge. If any Senator is going
to level this kind of assertion, they have to have clear and compelling
facts on their side.
Indeed, in his over two decades of practice, Mr. McConnell has never
had an ethics complaint alleged or filed against him. He has never had
a malpractice claim alleged or filed against him. He has never had a
rule 11 motion filed against him.
The ACTING PRESIDENT pro tempore. The Senator's time has expired.
Mr. REED. Madam President, I ask unanimous consent for 2 more
minutes.
Mr. ALEXANDER. Madam President, reserving the right to object, then
we would need to add 2 minutes to the Republican side, and I ask
unanimous consent for that.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. REED. There is a third claim against Mr. McConnell regarding the
State of Rhode Island's lawsuit against a number of companies which, at
one time, manufactured lead paint. Let me state for the record that
this process had its start under a Republican Attorney General, Jeffrey
Pine, and then continued under two succeeding attorneys general.
The lawsuit had precedent under Rhode Island law. While it was a
lengthy and difficult trial, Judge Silverstein, a State superior court
judge who oversaw this trial and was responsible for the court's
business calendar, had nothing but praise for Mr. McConnell's
involvement and that of his opposing counsels. Again, Judge Silverstein
is one of our most respected judges by all sides and by the entire
Rhode Island bar for his judgment, integrity, and his skill. He had
nothing but praise for Mr. McConnell's involvement.
A fourth claim is an insinuation that Mr. McConnell received some
kind of favoritism when the state selected a legal firm to bring the
lead paint lawsuit. The facts are again different from the claim.
First, Mr. McConnell and former Attorney General Pine discussed this
issue within the context of the global tobacco litigation. Attorney
General Pine then asked Mr. McConnell to provide a legal memo on this
matter. Attorney General Pine reviewed the materials and believed the
case was solid but did not want to undertake the case due to the end of
his term. In 1999, AG Pine's successor, who happened to be Senator
Whitehouse, asked to be briefed on the matter. Then Attorney General
Whitehouse, asked another firm, DeCof and DeCof, to review the case,
and this firm found the merits of the case to be factually and legally
sound under Rhode Island law. The case was then actively litigated by
the state under AG Whitehouse's tenure. It was then reviewed by AG
Whitehouse's successor, who decided after much deliberation to continue
the case. So there you have it. A Republican Attorney General chose Mr.
McConnell more or less and his Democratic successors retained his firm.
I am also told this proposed arrangement was submitted to the court,
the court reviewed it, and did not object to it. I am also told by
Senator Whitehouse that, indeed, the judge had the final approval of
any type of payments made. That is the type of arrangement I think is
well within the consistency and ethics of procedures within Rhode
Island and across the Nation.
I could go on and on. I conclude by saying this: This is an
individual of integrity, character, decency, education, talent, and
skill. Today, we are on the verge, I hope, of confirming a district
court judge nominee. If we reject this person through a cloture fight,
we are setting up an extraordinarily dangerous precedent that in the
future could be used to prevent individuals of character and talent
from serving on the bench.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Tennessee.
Mr. ALEXANDER. Madam President, I ask unanimous consent that over the
next 30 minutes Republican Senators led by the Senator from Ohio, Mr.
Portman, and including the Senator from Wyoming, Mr. Barrasso, Senator
Cornyn from Texas, Senator Hoeven from North Dakota, and myself be
permitted to engage in a colloquy.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
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