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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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. (continue reading…)

From Stuart Taylor, National Journal, Feb. 19, 2003, “Perverting the Legal System: The Lead-Paint Rip-Off.”

[Attorney General Sheldon] Whitehouse signed an unusual “retainer agreement” with Ness Motley and another firm. It not only guaranteed the lawyers a contingent fee of 16.67 percent of any money recovered, plus all litigation expenses; it also gave them considerable control over whom to sue, what to claim, whether to settle, and on what terms. In other words, Whitehouse delegated a share of the state’s sovereign power to a law firm whose best-known partner, Ronald L. Motley, had vowed that he would bring the paint industry to its knees within three years or give up his 156-foot yacht.

And here’s the Themis, docked at Hilton Head, April 15th, 2008 (Recorded by the blogger dlauderdale at the Island Packet online.)

Mr. Motley’s yacht was ranked No. 99 in the America’s top 100 largest yachts, 2007, from Power and Motoryacht magazine. The shipbuilder, Trinity Yachts, has a wonderful site devoted to the vessel, with lovely photos.

For more on the R.I. Supreme Court’s ruling on contingency fee arrangements between the state and private attorneys — they’re OK, but watch out! — see this post at PointofLaw.com.

That’s the headline on today’s Wall Street Journal editorial marking the Rhode Island Supreme Court’s ruling in the lead paint litigation as a good day for justice.

Below we note the similarity of denunciations coming from R.I. Patrick Lynch and the attorneys as Motley Rice. Shared interests, shared rhetoric…

The lead paint as “nuisance” theory was ginned up by Motley Rice, the South Carolina firm famous for its tobacco shakedowns. The law firm found a partner in then-Rhode Island Attorney General (and now U.S. Democratic Senator) Sheldon Whitehouse, who brought the first lead nuisance suit in the country. The theory was picked up by current AG Patrick Lynch, who has worked hand-in-wallet with Motley Rice and others, dishing them a contingency contract worth 16.67% of any settlement.

Yesterday’s decision should deny them that jackpot injustice. But the cost of fighting these suits over nearly a decade has still been steep for the three paint company defendants. Sherwin-Williams Co. saw its stock plummet after the 2006 verdict, erasing about $1.8 billion in market cap, a third of its value at the time. The British “loser pays” rule is designed to deter precisely this kind of legal abuse by making the loser pay for bringing frivolous cases.

The Journal’s ending paragraph is as clear a statement we’ve seen characterizing the developments in Rhode Island:

Yesterday’s ruling is good news for paint makers and consumers, and even better news as a rebuke to the plaintiffs bar and its political patrons. Industries that make lawful products should not be held hostage to bogus legal theories whose only purpose is looting honest companies.

The Law and More blog, the go-to place for coverage of the long and painful history of the lead-paint litigation. Lots of commentary and insider insight from Jane Genova. We especially liked this observation from one of her regular legal sources:

Inside the Beltway Attorney, off the record:

“The Chief Justice’s quote from learned U.S. Supreme Court Justice Benjamin Cardozo is very telling about the perception of Judge Silverstein’s apparent bent in this protracted case:

“‘The judge … is not to innovate at pleasure.  He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness.  He is to draw his inspiration from consecrated principles.  He is not to yield to spasmodic sentiment, to vague and unregulated benevolence.  He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of order in the social life.’

“Now, unburdened with the distraction of this case, Rhode Island can get on with the serious business of reducing its current 651 annual cases of childhood lead poisoning to zero.  That would be the true pursuit of goodness.”

And there’s more at Point of Law.com here and here.

UPDATE (4:08 p.m.): A statement from Karen Harned, executive director of the NFIB Small Business Legal Center:

Today’s decision by the Rhode Island Supreme Court is a major victory for all business owners. The court rejected the attempt of trial lawyers to dramatically expand tort liability for business owners by imposing a new ‘public nuisance’ theory of liability. In this case, trial lawyers were trying to hold paint manufacturers liable for lead paint exposure despite the fact that at the time the lead paint was being made and sold, it was a lawful product. This was a clear attempt by trial lawyers to attack manufacturers for unfortunate consequences far beyond the manufacturers’ control. The Rhode Island Supreme Court rightfully rejected this reasoning and reaffirmed that in order to hold a business liable, there must be at minimum a causal connection between actions taken by a business defendant and the harm caused to the claimants.

UPDATE (5:35 p.m.): Ted Frank has more commentary and links at Overlawyered.com, here. He remarks:  “Attorney General Patrick Lynch is unhappy about the legal setback to his campaign contributors constituents.” Also worth noting: “Existing abatement efforts already required of landlords under Rhode Island law mean that lead paint exposure is at an all-time low in the state–evidence that was excluded at trial.”

From our Legal Beagle search engine:

On January 30, the NAM and other business groups filed an amicus brief urging the Rhode Island Supreme Court to reverse the verdict because the trial court improperly rewrote the law of public nuisance. Our brief argues that public nuisance law should never be used to replace product liability law. Traditional standards of public nuisance law require that there be an injury to a common public right, that there must be some conduct by the defendants that created a public nuisance, and not merely injury, and that the defendants must have some control over the nuisance, both for imposing liability and for providing a remedy of abatement. The lower court also ignored the need to show proximate cause between a particular manufacturer’s actions and an injury.

Allowing this suit would create unpredictable liability for manufacturers in situtations where they have no control over the ultimate use and/or maintenance of their products,a nd constitutes regulation by litigation. The NAM has been very active in opposing the attempted expansion of the public nuisance theory of liability by plaintiffs’ lawyers who are attempting to avoid the straightforward requirements of product liability law. Similar cases have been brought against manufacturers of firearms, cigarettes, automobiles, gasoline additives, chemicals and electricity. Many of these have been rejected.

Related Documents:
NAM brief (1/30/2008)
Press release (1/30/2008)

The other amici were the Coalition for Litigation Justice, Inc., the National Federation of Independent Business Legal Foundation, the American Chemistry Council, the American Insurance Association, National Association of Mutual Insurance Companies, and American Tort Reform Association.