McConnell is Unqualified to Sit on the Federal Bench in Rhode Island

Lisa A. Rickard
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Posted: May 26, 2010 1:55 PM
McConnell is Unqualified to Sit on the Federal Bench in Rhode Island

Since it was founded 12 years ago, the U.S. Chamber Institute for Legal Reform (ILR) has never opposed anyone nominated for a federal district court judgeship. That changed this month, when the chamber joined with other business organizations in recommending to the Senate Judiciary Committee that it reject the nomination of John J. “Jack” McConnell to serve a lifetime appointment on the U.S. District Court for Rhode Island.

The decision to weigh in on Mr. McConnell’s nomination is not one that was made lightly and nor was it based on the fact that Mr. McConnell is a plaintiffs’ lawyer.

If that were the case, we would have been busy opposing other nominees.

Instead, we are opposing Mr. McConnell because he has demonstrated unsound legal judgment and has a history of strong personal anti-business bias. He is also among the lowest-rated of all current federal judicial nominees, and if confirmed, would have a clear conflict of interest because of his generous deferred-compensation deal. Further, his elevation to the bench will draw many enterprising plaintiffs lawyers to the Rhode Island federal court.

Rush Limbaugh

In the late 1990s, following their massive (and massively lucrative) victory over the tobacco industry, Mr. McConnell and his partners at the South Carolina law firm Motley Rice looked for their next windfall, and concocted a novel concept to use an 800-year-old common-law theory known as public nuisance to sue national paint companies. The Providence Journal editorial board has called their theory a “ludicrous interpretation” of public-nuisance law and a “preposterous scheme to raid the coffers of paint companies.” Mr. McConnell himself initially referred to the concept as “a whacky idea” first thought up by one of his law partners.

But he soon changed his mind. In 1999, Mr. McConnell — then treasurer of the Rhode Island Democratic Party, the second biggest contributor to the campaign of then-state Atty. Gen. Sheldon Whitehouse — persuaded Mr. Whitehouse to hire Motley Rice to file their “public-nuisance” theory lawsuit against the paint companies on behalf of the state. Mr. McConnell and Mr. Whitehouse agreed to guarantee Motley Rice a nearly 17 percent share of the billion-dollar-plus award they hoped to recover — this in addition to the state paying for their litigation expenses.

The first trial ended in a hung jury. A second trial ended in a verdict for Mr. McConnell and the state, which was unanimously overturned two years later by the Rhode Island Supreme Court, which said that the case should never have gone to trial in the first place because the lawsuit was not based on fact or law.

In the meantime, Mr. McConnell and his partners were shopping public-nuisance lawsuits to state and local governments across America, hoping for huge paydays. But these cases were uniformly rejected, including by the highest courts of New Jersey, Missouri and Illinois. Some observers saw this as litigation run amok.

Following the Rhode Island Supreme Court’s repudiation of his misguided theories under the public-nuisance doctrine, Mr. McConnell attacked the court’s unanimous decision. But instead of basing his argument on the law, Mr. McConnell took a different tack, stating that the Rhode Island justices “got it . . . terribly wrong” by letting “wrongdoers off the hook.” This statement is troubling because it casts light on an activist judicial philosophy that appears more outcome-driven than based on interpreting and applying the law.

Mr. McConnell’s ability to render fair and impartial rulings from the bench are further impaired by the $2.5 million-to-$3.1 million-a-year payout he stands to receive over the next 15 years from an organization tied to his current employer, the Motley Rice firm. This amount stems from his share of attorneys’ fees from the massive tobacco settlement and possibly other lawsuit settlements.

At 51, Mr. McConnell would be a federal judge for quite a while receiving these payouts. We can think of no greater conflict of interest than to have him sitting in judgment on cases brought by some of the very plaintiffs’ firms that he partnered with to give him this multimillion-dollar windfall. To make matters worse, Mr. McConnell in his responses to the Senate questionnaire said that he, if confirmed, would “possibly” even entertain lawsuits brought by his current law firm.

Mr. McConnell has never been a judge. In their review of his qualifications, the American Bar Association’s 15-member judicial-rating committee gave him a mediocre or “substantial majority qualified, minority unqualified” rating — making him at the time one of only four of the Obama administration’s 69 judicial nominees to receive such a poor rating. For a practicing lawyer with 25 years of experience to obtain such a low rating speaks poorly of his legal abilities and likely means that he generated negative comments from judges whom he appeared and/or from lawyers who know him.

One thing that Mr. McConnell has excelled at far above his nominated peers is political giving. Since 1993, according to Federal Election Commission records, the 68 other individuals nominated by President Obama to the federal bench have donated an average of $3,371 to federal political candidates. Jack McConnell has given $253,660.

To be sure, political giving does not and should not disqualify someone from being confirmed to the federal bench. Neither does lack of prior judicial experience. But looking at this nominee’s entire career and qualifications — his lack of any judicial experience, a lackluster rating from the ABA, a history of advancing legal theories that belie any common understanding of the law, his public statements indicating a clear and consistent bias against business, his outsized political contributions that go way beyond those of any of his peers, and the clear conflict of interest regarding his future payments from work done with plaintiffs’ lawyers coming before his court — we believe it is the proper and responsible position to question whether Mr. McConnell is the best person to be nominated for a lifetime appointment to the federal bench.

Mr. McConnell should be rejected. His elevation to a lifetime appointment in Rhode Island federal court will inevitably attract a generation of enterprising personal-injury lawyers to flock to Mr. McConnell’s courtroom.

Those who will determine this question should ask themselves: If a lifelong defense lawyer were similarly nominated with all the questions Mr. McConnell brings to the table, would the plaintiffs’ lawyers be right to question his or her ability to serve on the federal bench? We think so.