A Top Judicial Candidate with No Experience on the Bench

By May 12, 2010Briefly Legal

No, not Elena Kagan. It’s Jack McConnell, a top trial lawyer from Rhode Island who wants to serve as a U.S. District Court judge.

The Senate Judiciary Committee holds a hearing on judicial nominees Thursday, including McConnell, a partner with Motley Rice who has distinguished himself for suing tobacco companies and paint manufacturers and for being a major campaign contributor.

Forbes senior editor Daniel Fisher writes on McConnell’s candidacy in his On the Docket  column:

McConnell’s the guy who, as a contingency-fee gun for hire, pursued expensive but ultimately unsuccessful lawsuits against the paint industry on behalf of Rhode Island.

McConnell also cashed in on the biggest tort bonanza in history, the tobacco settlement. According to financial statements he filed with Congress as part of this nomination, the Motley Rice attorney anticipates “deferred compensation for work performed and completed of approximately $2.5 million to $3.1 million each year through 2024.”

The litigation against the paint manufacturers sought to pervert public nuisance law, creating through the courts a second form of all-purpose product liability law. And the state’s hiring of Motley Rice to run its lawsuit in hopes of a huge payout was a class example of the “pay to sue” business that has undermined the integrity of the U.S. judicial system.

Walter Olson gave a good summary of McConnell’s background when his nomination to the judgeship was being bandied about in April 2009. (President Obama actually nominated McConnell in March 2010). From Point of Law:

As I noted eight years ago (see also this update from David Nieporent and this summary from Jim Copland), an investigation by Forbes found that after McConnell opened a Motley branch office in Providence, the firm quickly established itself as Rhode Island’s largest political contributor for the 2000 elections, and McConnell himself became treasurer of the state party (and a key donor ever since, including to campaigns of [Jack] Reed and [Sheldon] Whitehouse). Whitehouse (as state AG) then proceeded to hire the Motley firm to conduct the state’s much-publicized lawsuit seeking to assign the costs of lead paint cleanup to companies that produced the paint many decades earlier. That suit would have yielded enormous returns (and legal fees) had it succeeded, but in the event proved to be too drastic a stretch of legal principles for the courts to accept. For McConnell, though, at least, if not for many of the others involved, the whole episode seems to have resulted in a happy ending.

Well, maybe not.

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