[Congressional Record Volume 157, Number 59 (Wednesday, May 4, 2011)]
[Senate]
[Pages S2660-S2661]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      NOMINATION OF JOHN McCONNELL

  Mr. McCONNELL. Mr. President, the Senate will shortly vote on the 
cloture motion on the Jack McConnell nomination. We have been working 
in good faith with our Democratic colleagues to confirm consensus 
judicial nominees in general and to fill judicial emergencies in 
particular. So it is disappointing that our Democratic friends have 
chosen to depart from this bipartisan practice and to press the 
McConnell nomination which would not fill a judicial emergency and is 
about as far from a consensus nomination as one could imagine.
  Mr. McConnell has described his judicial philosophy in this way:

       There are wrongs that need to be righted, and that's how I 
     see the law.

  In Mr. McConnell's eyes, the wrongdoers in America are invariably its 
job creators.
  His legal career has been marked by a pervasive and persistent 
hostility to American job creators. This bias against one part of 
American society is fundamentally antithetical to the rule of law, and 
it has led him to take a series of troubling actions that show his 
unfitness for a lifetime position as a fair and impartial judicial 
officer.
  For example, he has filed what his hometown newspaper described as a 
``ludicrous'' lawsuit against businesses. This case ended up costing 
not just the companies but Rhode Island taxpayers as well. After the 
State's supreme court unanimously rejected his frivolous legal theory, 
his clients--the taxpayers--had to pay a quarter of a million dollars 
in lawyers' fees.
  Rather than be contrite about the damage he had done, he lashed out 
at his State's supreme court, saying it let ``wrongdoers off the 
hook.'' He has made other intemperate statements as well that 
underscore his bias, such as when he insisted that one American 
industry only does ``the right thing'' when it is ``sued and forced to 
by a jury.''
  After such a long record of hostility toward one segment of American 
society, it is difficult to believe Mr. McConnell can now turn on a 
dime and ``administer justice without respect to persons,'' as the 
judicial oath requires. The business community does not think so, and 
it is easy to see why.
  In fact, the U.S. Chamber of Commerce has never before opposed a 
district court nominee in its 100-year history--not once. Yet it is so 
troubled by Mr. McConnell's clear disdain for the business community 
that it has taken the extraordinary step of opposing this nomination.
  Senator Cornyn pointed out yesterday that there are also serious 
ethical issues with Mr. McConnell's nomination. He pioneered the 
practice of ``pay to play'' lawsuits, where he solicited lucrative no-
bid, contingency fee contracts from public officials.
  He has given statements to the Judiciary Committee that are 
misleading at best and untrue at worst about his familiarity with a 
case involving stolen litigation documents. There is the outstanding 
matter of the stolen litigation documents themselves, over which his 
law firm and several unnamed ``John Doe'' defendants are being sued.
  In light of all the problems with the McConnell nomination, I have 
listened with interest to the admonishments by the chairman of the 
Judiciary Committee and other Democratic colleagues against opposing 
cloture on his nomination. I know my record of supporting up-and-down 
votes for controversial judicial nominees during the administration of 
President Clinton, and I am equally aware of the determined efforts by 
my Democratic colleagues ``to change the ground rules'' in the Senate 
confirmation process once there was a Republican President.
  My Democratic colleagues ultimately succeeded in their efforts by 
repeatedly filibustering President Bush's judicial nominees. I wish our 
friends had not succeeded and not set up that precedent. But they did. 
And the precedent is the precedent, and their buyer's remorse now that 
there is again a Democrat in the Oval Office will not change it.
  Over the years, there have been bipartisan concerns with judicial 
nominees, and cloture has been needed to end debate. Abe Fortas is a 
famous case. He was opposed by Senators from both sides of the aisle 
because of ethical issues, and his nomination did not even have 
majority support, let alone the votes needed to invoke cloture.
  But the partisan filibuster is a more recent development, and our 
Democratic colleagues have been the proud pioneers in this area. In 
1986, they mounted the first partisan filibuster against a judicial 
nominee. That nominee, by the way, was a district court nominee, Sidney 
Fitzwater.
  Also in 1986, they mounted the first partisan filibuster against a 
nominee to be Chief Justice. That was Chief Justice Rehnquist's 
nomination.
  In 1999, they mounted the first successful partisan filibuster of a 
judicial nominee. That too involved a district court nominee, Brian 
Stewart. Both the chairman of the Judiciary Committee and the senior 
Senator from Rhode Island voted to filibuster Mr. Stewart. I, and all 
Republicans, voted actually against filibustering him.
  Our friends' successful filibuster of this nominee is now 
inconvenient to their narrative about filibuster norms and propriety. 
They claim that filibuster does not count. I guess they are saying they 
only filibustered him to leverage floor votes on other judicial 
nominees, and once they got what they wanted, he was confirmed. I 
gather this is the ``coercion exception'' to the body of filibuster 
precedent they have created.
  In 2003, our friends mounted the first successful filibuster of a 
circuit court nomination. That would be Miguel Estrada's nomination. He 
was filibustered seven times, in fact. Our Democratic colleagues added 
to this record by filibustering nine other circuit court nominees, a 
total of 21 times. That is a record, too. The chairman of the Judiciary 
Committee and the senior Senator from Rhode Island participated in all 
of those filibusters as well.
  In 2006, led by President Obama himself, our Democratic colleagues 
mounted the first partisan filibuster of a nominee to be an Associate 
Justice of the U.S. Supreme Court. That would be the Justice Alito 
nomination. Our Democratic friends from Vermont and Rhode Island joined 
in that filibuster, too.
  I agree that filibusters of judicial nominees should be used 
sparingly. Unfortunately, our friends on the other side of the aisle 
have filibustered judicial nominees whenever it suited their purposes 
to do so, whether it was to defeat nominees such as Miguel Estrada or 
to leverage other nominees as with the Stewart nomination. Given their 
persistent enthusiasm for the judicial filibuster, I do not view our 
Democratic friends as the arbiters of filibuster propriety.
  In this case, I believe the McConnell nomination is an extraordinary 
one. He should not be confirmed to a lifetime position on the bench. I 
will oppose cloture, and I urge my colleagues to do the same.
  I yield the floor.
  Mr. McCAIN. Mr. President, during my 24 years in the U.S. Senate I 
have not once voted against cloture for a nominee to the district 
court, and I will not do so today. As a member of the ``Gang of 14'' in 
2005, I agreed that ``Nominees should be filibustered only under 
extraordinary circumstances.'' The nomination of Mr. McConnell does not 
rise to a level of ``extraordinary circumstances.''
  However, I am deeply troubled by Mr. McConnell's less than candid 
responses

[[Page S2661]]

to the Senate Judiciary Committee, his liberal judicial philosophy, 
including his public antipathy toward private enterprise, and his 
strong political activism. For these reasons, I will not support his 
nomination.
  Shaping the judiciary through the appointment power is one of the 
most important and solemn responsibilities a President has and 
certainly one that has a profound and lasting impact. The President is 
entitled to nominate those whom he sees fit to serve on the Federal 
bench, and unless the nominee rises to ``extraordinary circumstances,'' 
I have provided my constitutional duty of ``consent'' for most 
nominees.
  While I would not have chosen Mr. McConnell as a nominee to the 
Federal bench if I were in a position to nominate, I respect the 
President's ability to do so and therefore will vote for the cloture 
motion on Mr. McConnell's nomination, but will strongly oppose his 
nomination to the Federal bench.

                          ____________________