By Fred Lucas
(CNSNews.com) – Senate Democrats were able to confirm the former director of Planned Parenthood of Rhode Island to a lifetime federal judgeship after 11 Republicans voted to close debate on the nomination and allow it to come up for a final vote.
As a lawyer, the new judge was also involved in litigation against the tobacco industry and a failed lawsuit against former manufacturers of lead paint.
The cloture vote on the nomination of John J. “Jack” McConnell was 63 to 33 with 1 senator voting present and 2 senators not voting at all. Had 4 of the 11 Republicans who voted for cloture not done so, the nomination would have failed. A cloture vote requires 60 votes to succeed.
All 11 Republicans who voted for cloture—and thus to allow McConnell’s nomination to proceed—turned around and voted against the nomination itself on the final vote. That vote succeeded 50 to 44 and McConnell was confirmed.
The 11 Republican senators who voted for cloture and thus to permit McConnell to become a lifetime federal judge were: Lamar Alexander of Tennessee, Scott Brown of Massachusetts, Susan Collins and Olympia Snowe of Maine, Saxby Chambliss and Johnny Isakson of Georgia, Lindsey Graham of South Carolina, Mark Kirk of Illinois, John McCain of Arizona, Lisa Murkowski of Alaska and John Thune of South Dakota.
“I voted against the confirmation of John McConnell to be a U.S. District judge. I voted in favor of invoking cloture on his nomination only to allow the Senate to proceed to a final up-or-down vote on his confirmation,” Isakson told CNSNews.com in a statement.
Isakson, and other Republicans, said they did not want to duplicate the tactics of Senate Democrats who blocked numerous of President George W. Bush judicial nominees by refusing to support a cloture vote that would allow their nominations to come up for a final vote on the Senate floor.
“As I said repeatedly during the years President Bush was in office, I believe every president deserves an up-or-down vote on their judicial nominees,” Isakson said. “In addition, the U.S. Constitution says it is the Senate’s responsibility to give ‘advice and consent’ to the president’s judicial nominees, and the way to comply with the Constitution is to have an up-or-down vote on these nominees.”
McConnell, who was opposed by the U.S. Chamber of Commerce and other organizations for his long history as a trial lawyer, had been approved 11 to 7 in the Senate Judiciary Committee, where Sen. Patrick Leahy (D.-Vt.) serves as chairman.
The Chamber of Commerce cited McConnell’s less than average ranking by the American Bar Association of “substantial majority qualified, minority unqualified” as reason for opposing him.
“Sen. Collins voted against the confirmation of Mr. McConnell,” Collins spokesman Kevin Kelley told CNSNews.com. “She, along with ten of her Republican colleagues, voted for cloture because she believes that he deserved an up-or-down vote in the Senate. Senator Collins was a member of the so-called ‘Gang of 14’ that, in 2005, successfully averted a showdown in the U.S. Senate over the use of filibusters to block judicial nominations. The precedent is not to filibuster district court judges.”
Chambliss agrees that lower court nominees should get a straight vote, his spokesman Bronwyn Lance Chester said.
“Sen. Chambliss has been consistent in allowing district court judicial nominees an up-or-down vote if they come out of the Judiciary Committee,” Lance Chester told CNSNews.com.
Alexander, chairman of the Senate Republican Conference, is the third ranking Republican in the Senate. He called McConnell a “flawed nominee” for a judge, but defended his vote for cloture.
“I know that most of my Republican colleagues are going to register their opposition to Mr. McConnell by voting to deny an up-or-down vote. I respect their decision; I understand how they feel,” Alexander said on the Senate floor. “I also was outraged in 2003 when Democratic senators filibustered President Bush’s circuit court nominees simply because they disagreed with their philosophies. I made my first speeches on the floor of the Senate arguing against such a change in precedent.”
“On February 27, 2003, I said on this floor: When it comes time to vote, when we finish that whole examination, I will vote to let the majority decide,” Alexander said. “In plain English, I will not vote to deny a Democratic President’s judicial nominee just because the nominee may have views more liberal than mine. That is the way judges have always been selected. That is way they should be selected.’”
Alexander recalled that in 2005, the Republican majority became so frustrated with Senate Democrats blocking Bush judicial nominees through procedural measures, they considered eliminating the filibuster.
The battle prompted the “Gang of 14” deal in which seven Republicans and seven Democrats agreed to allow up or down votes on judicial nominees except for in undefined “extraordinary circumstances.”
Alexander said that the “Gang of 14” agreement was intended for appeals court and Supreme Court nominees, not district judge nominees.
“It is true that the ‘Gang of 14’ agreement did not explicitly distinguish between circuit and district judges, but the debate then clearly was only about Supreme Court and circuit judges and the Senate always has thought of district judges differently,” he said. “District Judges are trial judges. Circuit judges also must follow precedent but have broader discretion in interpreting and applying the law. Circuit judges’ jurisdictions are broader. Their attitudes and philosophies are much more consequential in the judicial process.”
Alexander later added, “That is why the Senate never has allowed a federal district court nomination to fail by denying cloture. According to the Congressional Research Service, in the history of the Senate, only three cloture motions have ever been filed on district judge nominations. In each case, the nomination eventually was confirmed.”
McCain, a member of the “Gang of 14,” said he voted for cloture because it was consistent with the agreement.
“As a member of the ‘Gang of 14’ in 2005, I agreed that ‘Nominees should be filibustered only under extraordinary circumstances,’” McCain said before the vote. “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 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.”
In a floor speech, Sen. Charles Schumer (D-N.Y.) called Jack McConnell and fine man and praised Republican senators for allowing the McConnell nomination to come to the floor.
Jack McConnell was the director of Planned Parenthood of Rhode Island from 1997 through 2000, an uncompensated position, according to his written responses to a questionnaire from the Senate Judiciary Committee. He also contributed $1,000 to Emily’s List in 2008, an organization that raises money for pro-abortion women candidates, according to the Center for Responsive Politics.
Jack McConnell has long been active in the Rhode Island Democratic Party and has been a heavy contributor to Democratic campaigns. In a Jan. 7, 2003 op-ed in The Providence Journal, he explained what it should mean to be a Democrat.
“We as Democrats should stand for an active government,” McConnell, then the treasurer of the Rhode Island Democratic State Committee wrote in the op-ed. “Sen. Ted Kennedy reminded us that ‘the mission of government is not to stand on the sidelines, but to be active in pursuing [the principles of fairness, opportunity, equal justice] for all people.’”
McConnell joined the Providence office of the South Carolina-based Motley Rice law firm in 1986. He led a trial team representing the state of Rhode Island in a suit against former manufacturers of lead paint. He also played a leading role in litigation against the tobacco industry. But the Rhode Island Supreme Court held that manufactures of lead paint could not be held liable for harm caused primarily from poor upkeep and aging buildings.
On the tobacco settlement, McConnell is reportedly scheduled to receive $2 million to $3 million per year in deferred compensation through 2024, according to The Washington Times.
Sen. Orrin Hatch (R.-Utah) voted “present” on the cloture motion for McConnell’s nomination and then against the nomination itself. Sen. Tom Coburn (R.-Okla.) did not vote on either the cloture motion or the nomination.