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May 13, 2010

John J Jack McConnell Lifetime Job for Tobacco and Lead Paint Litigator

The Senate Judiciary Committee today will consider Jack McConnell 's nomination to be a federal district judge in Rhode Island. Given his underwhelming qualifications for that job, including an unimpressive ABA evaluation and his role in some of the more abusive litigation of the last 20 years, there are good reasons to question McConnell's qualifications for a lifetime job as a federal judge.

Rhode Island 's senators, Jack Reed and Sheldon Whitehouse, say McConnell has "a brilliant legal mind" and the "experience, intellect, and temperament" to be a good judge, but the ABA isn't so sure. In fact, nobody on the ABA committee that evaluated McConnell's qualifications saw him as "well qualified," a substantial majority rated him merely "qualified," and a minority considered him "unqualified."

As for Reed and Whitehouse, it 's probably no surprise that they have nice things to say about a major campaign contributor. McConnell gave $8,800 to Reed's 2008 re-election effort, $8,400 to Whitehouse's 2006 campaign, and another $3,500 since then to Whitehouse's PAC. And, it's not just his home-state senators; McConnell and his wife have contributed some $700,000 to Democratic campaigns over the past two decades, including the campaign of President Obama.       

As for McConnell 's legal qualifications, one of his claims to fame is the role that he played in negotiating the master settlement between the states and the tobacco companies in 1998. The litigation was unsightly for several reasons, being marred by opportunism, greed, and disrespect for the rule of law.

Cronyism, too: The state attorneys general gave very lucrative contracts to former law partners and other supporters. State officials and their lawyers fought about the fees that the lawyers would be paid in Kansas, Texas, Maryland and other states; the lawyers in several states received compensation substantially out of line with the risk they took on and the amount of work they did. In Maryland, Peter Angelos, the state 's hired gun, demanded a payment that would have given him $30,000 per hour, but later settled for less. States changed their laws to retroactively take away the defenses of the tobacco companies and smooth the path to a larger recovery.

Finally, the states used the proceeds of the litigation for anything but tobacco cessation programs; Rhode Island took its multi-year income stream of $1.19 billion and securitized it, accepting a one-time payment of $600 million that it spent in just three fiscal years to make up budget shortfalls and pay capital and operating expenses.

Another of McConnell 's claims to fame is the lead paint litigation in Rhode Island and Wisconsin. In Rhode Island, McConnell's law firm shopped a lawsuit against the former makers of lead paint to Whitehouse, when the latter was that state's Attorney General. Whitehouse's successor ratified a decision that Whitehouse made and contracted out the state's power to sue in the public interest to McConnell's law firm. In the lawsuit, which McConnell considers one of his most significant, the state sought an order directing the companies to abate lead pigment in all buildings in Rhode Island that were accessible to children on the ground that the buildings were a "public nuisance."

The Rhode Island Supreme Court recognized that lead poisoning was a serious public health problem, but declined to play the role of the legislature and create a new cause of action to address it, as McConnell 's lawsuit wanted it to do.

McConnell did better in Wisconsin, where another Obama administration nominee for a judgeship, Louis "Loophole Louie" Butler, was less averse to playing legislator. In a decision that Butler wrote, the Wisconsin Supreme Court held that a minor who complained of lead poisoning but could not identify the specific type of white lead carbonate that he ingested could still establish causation by showing that the defendant manufacturers produced or marketed white lead carbonate for use during the time the house was in existence. As one dissenter explained, the relaxed causation standard meant that the defendants could now be held liable "for a product they may or may not have produced, which may or may not have caused the plaintiff's injuries, based on conduct that may have occurred over 100 years ago when some of the defendants were not even part of the relevant market."

In the tobacco and lead paint litigation, McConnell encouraged courts to try to solve social problems by imposing massive damages on entire industries. The federal courts are not the place for such legal engineering. The members of the Judiciary Committee should make certain that McConnell understands the role of a federal district court judge before giving him a lifetime job on the bench.

John Park is a Visiting Legal Fellow in the Center for Legal and Judicial Studies at the  Heritage Foundation.

First appeared in The American Spectator

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