[Congressional Record (Bound Edition), Volume 157 (2011), Part 5]
[Senate]
[Pages 6439-6440]
[From the U.S. Government Publishing Office, www.gpo.gov]




                    NOMINATION OF JOHN J. McCONNELL

  Mr. REED. Madam President, I rise today in support of the nomination 
of John ``Jack'' McConnell to serve as a district court judge in the 
State of Rhode Island. We have heard and we will hear a number of very 
strong statements about this nomination. I would argue very 
vociferously that many assertions that have been made are inaccurate at 
best and they are not shared by the legal and business community in 
Rhode Island. In fact, Jack McConnell is supported publicly and 
enthusiastically by the two former Republican attorneys general of 
Rhode Island, Arlene Violet and Jeffrey Pine. He is not opposed by the 
Greater Providence Chamber of Commerce, which knows him and has worked 
with him. He is supported by our legal community and our business 
community. He has received the strong endorsement of our leading 
newspaper, the Providence Journal, which has a record of moderation, 
indeed if not conservatism, in terms of their judgments about judicial 
candidates and some issues, but certainly moderation.
  Later, Senator Whitehouse and I will respond specifically about the 
assertions and concerns, but I think it is time at this juncture to 
make a few brief points about where we are at this Senate. We are at a 
point where we might be crossing a bridge from which we cannot return; 
that, unlike our previous history, district judges will be subject 
routinely to cloture motions because one faction or another decides, 
not on the merits but procedurally, they should not go forward.
  Let me make a few points. Senator Whitehouse and I recommended Mr. 
McConnell to the President after publicly seeking applicants, talking 
to attorneys throughout our State, interviewing almost every single 
applicant. We took this decision seriously, as you would expect. We 
know it is a reflection both upon ourselves and upon our State. From 
this pool of applicants we selected Mr. McConnell because we found him 
to be among the best attorneys of the State, a pillar of our community, 
one of the most generous philanthropists in our State--and in most 
cases anonymously--and in many cases not simply writing a check but 
standing in a soup line early in the morning handing out food to people 
who need it, without acclaim, without fanfare. This is the character of 
the individual, and character, I think, ultimately is the test of a 
judge. He has a true desire to serve this country.
  Indeed, Mr. McConnell has practiced law for decades. He has never 
been subject to an ethics claim, a malpractice claim, a rule 11 motion, 
and most importantly he has never had a motion for sanctions filed 
against him concerning his conduct in any litigation in which he has 
been involved. He has a spotless record.
  Moreover, we selected Mr. McConnell because we knew, based upon all 
of his personal background, his sworn testimony, that he will follow 
the precedents of the law and of the First Circuit Court of Appeals and 
of the United States Supreme Court. This is not something we take 
lightly and it is not something Mr. McConnell takes lightly. We know 
and he knows that when you step upon the bench you assume huge 
responsibilities. You have to not only appear to be impartial, you have 
to in every word and deed go the extra mile to demonstrate that 
impartiality, that you are not favoring anyone. He is prepared to do 
that. In fact, I think that is part and parcel of the nature of this 
gentleman.
  Now, we have to stop here and ask ourselves collectively, do we want 
to go ahead and take this step of cloture for district court nominees? 
Do we really want to add another front in the battle of partisan 
political ``gotcha''? Do they really want to cast aside, for example, 
the blue slip process which allows Senators from a home State, 
particularly with a district judge, to say yea or nay? It is a process 
that has been in the Senate, in the informal culture of the Senate for 
years and years. Do they want to deny a nominee who has been reported 
out of committee on a bipartisan vote three times, not once, an up-or-
down vote? I heard and I have heard for years--particularly under 
President Bush--many people coming to this floor and claiming everyone 
who is nominated and comes out of committee deserves an up-or-down 
vote, particularly a district court nominee, especially a district 
court nominee. So this is where we are poised--to reject all of them, 
to enter a new dimension of controversy and conflict in the Senate.
  We have a long history in the Senate of precedents and tradition when 
it comes to nominations, particularly district court nominations. In my 
State, my predecessors, men such as John Chafee and Claiborne Pell and 
Lincoln Chafee and John Pastore, clearly adhered to those standards. 
And we have a record--a strong record of judges in our State, and they 
have come from different backgrounds. They have come from the practice 
of corporate law. They have come from being a former Federal attorney. 
They have come from being a significant and principal attorney for a 
major insurance company. They have come from a vast array of legal 
backgrounds and professions. One thing they have had in common, and 
which is shared by Jack McConnell, is integrity and commitment to the 
law. And that we insist upon.
  We have long recognized that these district judges serve a critical 
role, and I think we all recognize, too, here as Senators that this is 
a special role of the home State Senator. We understand that at the 
circuit level, when judges have to consider issues of 
constitutionality, where major policies issues could be resolved--in 
fact, finally resolved, at least for that circuit--we understand there 
is another added dimension. But with district courts, we have 
traditionally recognized the judgment of not only the local Senators 
but the judgment of the local legal community. And once again, here, 
both the legal community in Rhode Island and, I cannot emphasis enough, 
two former Republican Attorneys General, who know him well, who have 
observed him closely, have come forward of their own volition and 
enthusiastically supported his candidacy. They know him as a lawyer. 
They know him as a man of integrity and honor and decency.
  There are a number of my colleagues on the other side who recognize 
this, and they have been very forthright in making the point about the 
precipice that we are on and how that is not a precedent we want to 
establish. I thank them for that. I thank them for their consideration. 
They have literally adhered to consistently--not just in the past but 
now--the notion that when a judge is given a qualified approval by the 
ABA, when a nominee goes through the committee, comes to this floor at 
the district level, that is when a vote should take place. And how you 
vote on final passage is a function of many things--your judicial 
philosophy versus their judicial philosophy, your view of the judgment 
they have and the responsibility a district judge has.
  Now, I think we have again been engaged in difficult debates, and 
they have been particularly difficult when it has come to the circuit 
court. I do think we recognize collectively that because of the nature 
of the circuit court, there is a difference. This is the gateway, and 
many times, the cases never go beyond the circuit court. Constitutional 
law, principles that apply to whole circuits are affirmed by these 
panels of judges, and there is a different standard. But we have never 
really applied that standard to the district court. We have relied--all 
my colleagues have--on the ability of home State Senators, together 
with their local lawyers, together with their local communities, to 
make recommendations to serve on the district court.
  Let me point out how extraordinarily unusual the vote tomorrow will 
be.

[[Page 6440]]

From our reference, talking to the Congressional Research Service and 
the Senate Library, as far as we can consider, there have been only 
three cloture votes on Senate nominees for district courts in the 
history of the Senate--three times. Tomorrow will be the fourth. Oh, by 
the way, all three of those individuals ultimately received 
confirmation. It appears from our reconstruction that they were caught 
up in a procedural discussion of who should go first; this person 
should not go first until others had been considered. All three, after 
the procedural votes on cloture, were confirmed.
  But it is quite clear that at least on the part of some, this cloture 
vote tomorrow is designed to stop and end the confirmation of Mr. 
McConnell. That would be a first as far as we know in our 
reconstruction of the history of the Senate.
  So we are facing this question, the question of whether we want to 
establish this precedent, whether we want to disregard the record of 
this individual, who is a man of integrity and honor, who is strongly 
supported by our local business community, who is strongly supported by 
Republican officeholders as well as Democratic officeholders, who has 
gained the trust and the respect of those who know him best, and who 
will serve with distinction and integrity on the District Court for the 
District of Rhode Island.
  That is the big issue we face tomorrow. Later, we will come down and 
we will respond to those issues of specific detail. But I can recall 
not too long ago when there was a group of Republicans and Democrats 
who came together and decided that these types of decisions should not 
be subject to procedural defeats, but they should be based on the 
merits. That was the Gang of 14's work on trying to pull together a 
consensus on judges. I also know that both Senator Reid and Senator 
McConnell are working with a group of people on a bipartisan 
understanding regarding executive nominations--not judicial nominations 
but executive nominations. These are very hopeful and positive signs. I 
hope we can build on that process and not tomorrow take a step which I 
think historically is atypical, unique, in fact, a step in the very 
wrong direction.
  We will come back again, and we will talk about the specifics of Mr. 
McConnell's nomination and these assertions. But all of these 
allegations cast, again, not only a cloud upon Mr. McConnell but on the 
ABA process which looks very carefully at a candidate in terms of their 
judicial skill but also their character, their integrity, their ability 
to serve, and the process here in the Senate through the committee 
process.
  So I would hope that we can favorably consider--in fact, I would 
hope, as is typical, that we would move quickly to a final passage 
vote, as we do with 99 out of 100 district court nominees.
  But this is a serious issue. I fear we are on the precipice of taking 
a step that will come back repeatedly to haunt us and undercut a custom 
and a tradition and a sense of this Senate which is necessary to 
maintain, not to abandon.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Rhode Island.
  Mr. WHITEHOUSE. Madam President, I know I am in Senator Landrieu's 
time. I appreciate my friend's willingness to allow me just a moment to 
associate myself with the eloquent and thoughtful remarks of my senior 
Senator and to urge all of my colleagues, before we steer this body off 
the precipice to which he referred, to give his words their very 
careful and objective consideration.
  I thank the distinguished Senator from Louisiana.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Louisiana.

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