The U.S. Senate voted narrowly today to cut off a threatened filibuster against one of President Barack Obama's judicial nominees, a trial lawyer who played a leading role in lead paint and tobacco litigation.
The vote likely ensures that the nominee, Motley Rice partner John “Jack” McConnell Jr., will be confirmed for U.S. District Court in Rhode Island. His supporters needed 60 votes to end debate on the nomination, and the vote was 63-33. A final confirmation vote is expected today or Thursday.
McConnell’s nomination has become a rallying point for industries upset over mass torts and over the tight relationships between some plaintiffs’ lawyers and state attorneys general. In an unusual move, the U.S. Chamber of Commerce openly opposed McConnell and told senators it would include votes about the nomination on its scorecard.
During a floor debate, senators traded views about the usefulness of mass tort cases like those against the tobacco and paint industries.
“We can expect that if Mr. McConnell finds himself confirmed as a federal judge, then in the future litigants will find a warm reception in his court to these legally dubious schemes,” said Sen. John Cornyn (R-Texas).
Democrats defended the cases. “The corporate lobby opposes him because he successfully represented plaintiffs,” said Sen. Patrick Leahy (D-Vt.), the chairman of the Senate Judiciary Committee. “You can support the lead-paint manufacturers, or you can support the children who were poisoned. I stand with the children.”
The vote doubled as a test of whether one of Obama’s most controversial judicial nominees could break a threatened filibuster. Two years ago, with as many as 60 members in their caucus, Democrats had the ability to push through many nominees over GOP opposition. But now, with 53 seats, they need the support of Republicans, many of whom were in the Senate to watch Democrats block nominees of President George W. Bush.
Senators said there have been only three other instances in which a nominee for federal district court needed to break a filibuster through what’s known as a cloture petition. All three of those were eventually confirmed.
“District court nominees have been filibustered, and it was Democrats who took the first step,” said Sen. Chuck Grassley (R-Iowa), the ranking Republican on the Judiciary Committee, who voted against ending debate.
Sen. Lamar Alexander (R-Tenn.) was among the Republicans who voted to end debate. He said it would be a “new and bad precedent” to allow filibusters against district court nominees, especially one who has the support of his two senators. “That is the way judges have always been selected. That is the way they should always be selected,” Alexander said.
As senators voted, Sen. Jack Reed (D-R.I.) personally lobbied Republicans, and afterward he said their support upheld a presumption that district court judges should get an up-or-down confirmation vote. “Today is not just a case of an individual nomination. I hope it sets the standard going forward, and again, a standard that we as Democrats must respect,” Reed said.
None of Obama’s judicial nominees has been successfully filibustered. One nominee who faced significant opposition, Robert Chatigny for the U.S. Court of Appeals for the 2nd Circuit, was not re-nominated in January.
McConnell, 52, has a long résumé of supporting Democratic causes, including the campaigns of Reed and Sen. Sheldon Whitehouse (D-R.I.). He was treasurer of Rhode Island’s Democratic state committee from 1995 to 2009. He was state chair for Bill Bradley’s presidential campaign in 1999-2000, and he was an elector for Obama in 2009.
As a lawyer, McConnell has been with Motley Rice or its predecessor firms since 1986. He represented plaintiffs in asbestos cases, and in the 1990s he was among the lawyers who led the states’ litigation against the tobacco industry over health-care costs. During the past decade, he and Motley Rice partnered with states and localities nationwide in suing paint companies over contamination from the long-ago use of lead paint.
Republicans seized on one piece of the lead-paint litigation as part of their closing argument against McConnell. In 2009, Sherwin-Williams Co. sued Motley Rice in state court in Ohio over an internal company document that the law firm obtained. The company said it was stolen, while Motley Rice said it came from a whistle-blower. GOP senators accused McConnell of not telling all he knew about the dispute, which is ongoing.
“I’m concerned that the ethical allegations made against Mr. McConnell and his law firm remain unresolved,” Cornyn said.
In response, Reed noted that McConnell is not a named party to the lawsuit, and he said the nominee has never been the subject of any ethics complaint. Sherwin-Williams’ Ohio lawsuit, he said, “is really retaliation by the company in order to express their anger at being sued in Rhode Island.”
The lead-paint suits were largely unsuccessful, and Rhode Island’s Supreme Court unanimously vacated one jury verdict. As a result of the tobacco litigation, however, McConnell is set to continue to receive payouts through 2024 of up to $3.1 million a year.