[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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