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Key Vote Letter Opposing the Nomination of John J. "Jack" McConnell, Jr. to Serve on the United States District Court for the District of Rhode Island

Monday, May 2, 2011 - 8:00pm

TO THE MEMBERS OF THE UNITED STATES SENATE:

The U.S. Chamber of Commerce, the world’s largest business federation representing the interests of more than three million businesses and organizations of every size, sector, and region, strongly opposes the nomination of John J. “Jack” McConnell, Jr. to serve on the United States District Court for the District of Rhode Island.

Mr. McConnell’s past statements, conduct as a personal injury plaintiffs’ lawyer, and lackluster ABA rating raise serious concerns about his fitness to be confirmed to the federal bench. Although the Chamber has never before opposed a federal district court nominee, we believe that a response is warranted in this circumstance given Mr. McConnell’s record.

Our opposition begins with Mr. McConnell’s mediocre “substantial majority qualified, minority unqualified” rating from the American Bar Association. For a practicing lawyer with 25 years of experience to obtain such a low rating speaks poorly of his legal abilities. It is likely that he generated negative comments from judges before whom he appeared and/or from lawyers who know him.

Mr. McConnell’s ABA rating should come as no surprise given his past statements, which raise serious questions about whether he will follow precedent and respect the rule of law. For example, in 1999, Mr. McConnell was hired on a contingency fee basis by the State of Rhode Island to sue paint companies under theories of liability that exceeded the bounds of well-settled law. After nine years of protracted litigation, and at great expense to defendants, the Rhode Island Supreme Court unanimously rejected Mr. McConnell’s misguided interpretation of public nuisance law. Mr. McConnell demonstrated little respect for the Rhode Island Supreme Court’s ruling and publicly attacked the decision in an op-ed that he penned for The Providence Journal that claimed the court “got [the decision] terribly wrong” by letting “wrongdoers off the hook.”

Mr. McConnell’s public criticism of the Rhode Island Supreme Court’s lead paint ruling should also give the Senate pause because it casts light on a judicial philosophy that appears to be outcome-driven rather than based on interpreting and applying the law. Indeed, Mr. McConnell has publicly affirmed his support for “an active government” that should not “stand on the sidelines” and stated that “[he] see[s] the law” as a mechanism to redress “wrongs that need to be righted.” Considering these statements together, a picture of a judicial nominee who will legislate from the bench begins to emerge.

The Chamber is equally concerned that Mr. McConnell lacks the capacity to be an impartial jurist, especially with regard to business defendants who may appear before him. Mr. McConnell has defined his career by suing business defendants. As his own Committee questionnaire indicates, all but two of the ten matters he views as the “most significant” of his legal career were actions against businesses. None involved him representing or defending a business. Worse still, when asked about lead paint litigation by the Columbus Post Dispatch in 2006, he said that, based on history, he had “absolutely no confidence” that defendant paint companies would do the right thing. He added “[t]he only time is when they’re sued and forced to by a jury.” How could a business hope to receive an impartial hearing in Mr. McConnell’s courtroom when these statements show that the deck is already heavily stacked against them?

Moreover, Mr. McConnell’s ability to render fair and impartial rulings from the bench should be seriously questioned in light of the significant payment that he stands to receive for the next 14 years. According to Mr. McConnell’s questionnaire, he is scheduled to receive approximately $3 million a year, through 2024, from an organization closely tied to his current employer, the Motley Rice plaintiff’s firm. This appears to present a conflict of interest, and it is difficult to see how Mr. McConnell could render impartial judgments in matters involving plaintiffs’ law firms while simultaneously receiving millions of dollars in compensation from Motley Rice.

Ultimately, we believe that Mr. McConnell’s apparent bias against business defendants, underlying judicial philosophy, and questionable respect for the rule of law will lead to the multiplication of baseless lawsuits in his courtroom with untold consequences to businesses, large and small, across the country. Given the limited number of judges who currently serve in the District of Rhode Island, we are concerned that enterprising personal injury lawyers will flock to Rhode Island in an attempt to draw such a plaintiff-lawyer friendly judge. As most litigators understand, federal district court judges exercise virtually unreviewable discretionary authority in many circumstances. State courts like those in Madison County, Illinois have amply demonstrated the problems that arise when courts accept plaintiffs’ claims no matter their merits, and the Senate should be wary of creating a similar “magnet jurisdiction” at the federal level.

Finally, Mr. McConnell’s answers to questions posed by members of the Judiciary Committee appear to be less than forthright. A paint manufacturer has sued Motley Rice to recover confidential company records that were allegedly stolen by the firm. Motley Rice has refused to return these documents and the litigation is currently pending. Although McConnell initially told the Committee that he had “no involvement” with the suit and “would not say [he] was familiar with the documents in any fashion,” he offered contradictory testimony during a later deposition. He admitted he was the first Motley Rice lawyer to review the documents, that he drafted his Providence Journal public opinion piece assailing the Rhode Island Supreme Court using information from the documents, and that he signed a court brief that both incorporated information from the documents and attached portions as an exhibit. Mr. McConnell’s answers to the Committee were misleading at best and lacked the candor rightly expected of judicial nominees.

As Mr. McConnell has not demonstrated that he would provide the fair and impartial judicial temperament needed to serve on the federal bench, and in light of his demonstrated bias

against a clear class of litigants, the Chamber urges you to oppose both his nomination and any related procedural votes.

The Chamber will consider votes on, or in relation to, Mr. McConnell’s nomination– including votes on cloture – in our annual How They Voted scorecard.

Sincerely,

R. Bruce Josten