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Controversial judicial nominee clears key Senate confirmation hurdle

By Bill Mears, CNN Supreme Court Producer
  • John McConnell is nominated to serve as a district judge in Rhode Island
  • Republicans oppose McConnell, questioning his testimony regarding a lawsuit
  • Some Republicans joined Senate Democrats to break a filibuster on the nomination

Washington (CNN) -- Senate Republicans have failed to block a floor vote for a controversial judicial nominee labeled as anti-business.

The 63-33 vote Wednesday broke a filibuster on the nomination of John McConnell to serve as a district court judge in Rhode Island. An up-or-down vote will follow. Eleven Republicans joined all Senate Democrats to vote for cloture, ending efforts to stall final consideration of the nominee.

The public-interest lawyer and prominent Democratic political donor from Providence faced a heated campaign against his nomination by the U.S. Chamber of Commerce and other groups for his work bringing a state lawsuit against paint manufacturers over lead content.

McConnell was first nominated in March 2010. Several Senate Republicans had suggested he lied or offered contradictory sworn statements about internal documents allegedly stolen from paint company Sherwin-Williams during the lead-paint litigation.

"I don't know how I can say it any more gently," said Sen. John Cornyn, R-Texas, during floor debate. "The fact is, he lied to the Senate Judiciary Committee during his confirmation process."

McConnell had testified that the trial judge in the lead-paint case had allowed the documents in question to be presented to the jury. His judicial nomination had been championed by his home-state senators, Jack Reed and Sheldon Whitehouse, both Democrats.

As the state's attorney general in the 1990s, Whitehouse had hired McConnell's law firm in the paint lawsuits. McConnell has been quoted viewing his job as a private lawyer, saying, "There are wrongs that need to be righted, and that's how I see the law."

Financial disclosure records required of judicial nominees show McConnell and his wife donated nearly $700,000 to Democratic candidates over the past two decades. President Barack Obama, as well as Reed and Whitehouse were among recent campaign cash recipients.

Republicans in the Senate had promised that Obama's "consensus" judicial nominees would receive swifter consideration in the new Congress.

As of May 1 there were 92 vacancies in the 857 federal district and appeals court judgeships, amounting to about 11 percent. Just 61 names have been currently put forth by Obama in the new Congress, many of them renominated -- but never confirmed -- from the past two years. Seventeen candidates have received confirmation since January. The administrative office of the U.S. courts predicts at least 23 more vacancies this year.

Republicans had been criticized for delaying floor votes on many nominees in the president's first two years in office, but the White House, too, has come under fire for not moving quickly to fill growing bench vacancies.

Some moderates from both parties have long lamented threats of delays and filibuster attempts of most presidential appointments. They say ongoing unfilled vacancies have created a crisis in many federal courts, with bulging dockets being handled by too few judges.

Senate Minority Leader Mitch McConnell -- no relation to the nominee -- said this choice was outside the mainstream. "We have been working in good faith with our Democrat colleagues to confirm consensus judicial nominees in general and to fill judicial emergencies in particular," said the Kentucky Republican. "So it is disappointing that our Democrat friends have chosen to depart from this bi-partisan practice and to press the McConnell nomination, which would not fill a judicial emergency and is about as far from a consensus nomination as one could imagine."

But Democrats said partisan politics was standing in the way of a qualified nominee. "I support the right of this attorney to bring legal claims based on the poisoning of children by the lead in paint and to hold those responsible accountable. That is what Mr. McConnell did," said Sen. Patrick Leahy, D-Vermont, chairman of the Judiciary Committee.

"That is why the business lobbies oppose him. No senator should oppose Mr. McConnell for doing what lawyers do and vigorously representing his clients in lawsuits," Leahy said.

The Rhode Island lawsuits were aimed at companies that had once manufactured lead-based paints, which has been shown to cause a variety of medical problems in children who accidentally ingest paint chips.

Another controversial judicial nominee is still waiting for a floor vote, and Republicans have been even more adamant in their opposition.

Goodwin Liu has been tapped to fill set on the U.S. Court of Appeals for the 9th Circuit in San Francisco. The law professor at the University of California-Berkeley had offered outspoken opposition to many of the legal policies and judicial nominees of the second Bush administration, earning him conservative wrath. If confirmed he would be only the second Asian-American currently on the federal appeals bench, and many liberals see Liu as a potential candidate for the Supreme Court some day.