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May 5, 2011

Nomination of John McConnell

[Page: S2660]  GPO's PDF 


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]  GPO's PDF
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.

(Senate - May 4, 2011)

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