The Senate on Wednesday confirmed John “Jack” McConnell to the U.S. District Court for the District of Rhode Island, voting along party lines, 50-44.

McConnell’s confirmation was made possible when 11 Republicans earlier joined the Democrats in a 63-33 vote to invoke cloture. Those votes should be seen as a statement on the confirmation process, that is, trying to dial back the partisan conflict that afflicts consideration of judicial nominees.

Sen. Lamar Alexander (R-TN), who voted for cloture but against confirmation, made the case this way:

[The] Senate is a body of precedent. One important precedent is that never in Senate history has a President’s district court nomination reported by the Judiciary Committee been defeated because of a filibuster, that is, because of a cloture vote. Once a nominee for federal district judge has gotten to the floor, the majority of senators have made the decision in an up-or-down vote.

Therefore, I will vote today for cloture in order to allow an up-or-down vote on the President’s nomination of John McConnell. Then, I will vote “no” on confirmation because I believe he is a flawed nominee.

Flawed is a gentle description. McConnell is probably the worst judicial nominee that President Obama has put forward.
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Lots of blogospheric commentary about Energy Secretary Steven Chu telling his Nobel Prize-winning buddies in London that America’s roofs should be painted white to counter global warming. White roofs absorb less heat than dark roofs, just as concrete roads won’t be as hot as asphalt. As The Independent reports, Chu explained:

If that building is air-conditioned, it’s going to be a lot cooler, it can use 10 or 15 per cent less electricity. You also do something in that you change the albedo of the Earth – you make it more reflective. So the sunlight comes down and it actually goes back up – there is no greenhouse effect.

Makes intuitive sense. One of the reasons temperatures appear to have risen is urban areas, where measuring devices are placed, have become heat sinks because of pavement and buildings. It’s always five degrees warmer in D.C. than it is in Herndon.

And how do we get to this better, whiter future?  From the U.K. Times Online:

“I think with flat-type roofs you can’t even see, yes, I think you should regulate,” Professor Chu said.

Great, the federal government operating as a national condo association.

Do agents of the government never think about the real-world consequences of their good ideas? We like the prospect of paint manufacturers doing more business, but regulations equal dictates equal, “Oh, good afternoon. We’re from the Federal Office of Paint, Coating and Surface Monitoring.” We have to give those million of new government “volunteers” something to do.

James Lileks wrote about the dystopian potential at his blog today:

These things invariably lead to excitable public servants coming back – via jet, of course – from a really exciting convention where there was just a lot of positive energy about change, and then the officials commission a White Roof Study, which leads to someone commissioning a White Roof Commission, which leads to outreach, consciousness raising,  and a total of 145 white roofs in town –  and this leads to a newspaper story about the Growing Trend towards white roofs. A few city buildings are painted; the mayor is on hand for each. They look filthy after six months. One day in July passersby are treated to the site of city workers hosing down the roof in the middle of a drought.

The greatest danger we see? Ten, 20, 30 years down the road, some ambitious attorney general from a state like, oh, Rhode Island, will find a way to sue all the manufacturers who made the paint. Just because they had to have done something wrong.

From the AM Law Litigation Daily, “Judge Dismisses Cleveland’s Suit Against Subprime Lenders“:

Perhaps Cleveland mayor Frank Jackson scored points with his base when he announced back in January 2008 that the city was suing 21 financial institutions. Likening the banks’ activity to that of organized crime, the city claimed the banks had created a public nuisance by fueling subprime mortgages that left certain neighborhoods devastated by foreclosures. But the city’s legal reasoning has not impressed Cleveland federal district court judge Sara Lioi, who dismissed the case with prejudice on Friday.

The city sought to recover damages related to the costs of “monitoring, maintaining, and demolishing foreclosed properties” and “the diminution in the city’s property tax revenues caused by the depreciating effect foreclosures have had on the affected homes and surrounding properties,” according to Judge Lioi’s opinion. But Judge Lioi found, among other things, that Ohio state law preempts the city’s public nuisance claim and that the allegations did not sufficiently show that the defendants were the proximate cause of the alleged damages.

The city’s suit, like so many others, was always political grandstanding more than cogent law. A block of Cleveland is blighted because Credit Suisse First Boston securitized mortgages? You might as well sue the Mayor of Cleveland for promoting policies that undermine the city’s tax base that pay for police and city services. You might as well sue the people who trashed the buildings and actually, you know, created the blight.

Twisting public nuisance law to serve political purposes or to tap a new source of revenue has proved a dismal failure, as Rhode Island and Ohio’s lead paint lawsuits demonstrate. Time for candidates and voters to hold the elected officials who brought the suits accountable.

(Hat tip, Walter Olson, Point of Law, with much background at this post.)