Court Vacancies

Floor Speech

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Mr. GRASSLEY. Madam President, I rise to oppose the cloture motion on Jack McConnell, who has been nominated to be U.S. district judge for Rhode Island.

In the first few months that I have been ranking member of the Judiciary Committee, I have worked in good faith to move forward with consensus nominees. We have taken positive action on 68 percent of the judicial nominees submitted in this Congress. Despite my efforts, friends on the other side of the aisle and the President's top lawyer continue to claim we are not moving fast enough. There are additional consensus nominees the Senate could turn to. We could confirm additional district judge vacancies, as we have been doing. But rather than continuing to move forward with consensus nominees, the majority leader chose to throw up a detour and proceed to one of the President's most controversial nominees, Mr. McConnell. It seems no good deed goes unpunished.

Before turning to Mr. McConnell's record, I want to say a few words about the use of extended debate in considering judicial nominations. My friends on the other side have made some comments on this issue that are pretty difficult to understand given the record there.

First, with respect to district court nominees, and contrary to what my colleagues have suggested, there have been in the past filibusters of district court nominees. Most recently, the Democrats successfully filibustered a district court nominee in 1999, Mr. Brian Stewart by a vote of 55 to 44. Judge Stewart was ultimately confirmed.

But the fact of the matter is that district court nominees have been filibustered, and it was Democrats who first took the step. On circuit court nominees, the record is far worse. I would note that I do not necessarily like to vote against cloture on judicial nominees. I do not take these votes lightly. But these are the rules that the other side instituted.

Under the precedent and threshold that the Democrats first established, Members must decide whether they believe they should move forward to a vote on confirmation of this nominee. By any fair measure, Mr. McConnell qualifies as a very extraordinary circumstances. I have reached this conclusion based on a number of factors. I want to discuss a couple of these reasons now.

I am particularly troubled by the way Mr. McConnell handled himself before the committee. I believe Mr. McConnell at best misled the committee when he testified about his familiarity with a set of stolen legal documents that his law firm obtained during the lead paint litigation. When asked about these documents during his committee hearing, he testified that he saw the documents ``briefly'' but that he was not familiar with them ``in any fashion.''

But several months after his hearing, Mr. McConnell was deposed under oath about those same documents. In his sworn deposition, Mr. McConnell testified that he was the first lawyer to receive the documents. He drafted a newspaper editorial citing information that came directly from those documents. He testified that he reviewed and signed a legal brief that incorporated the stolen documents. And even though he told the committee that he was not familiar with the documents ``in any fashion,'' during his deposition he testified that he did not see any indication on the documents that they were confidential or secret.

How could he know the documents were not confidential or secret if, as he testified before the committee, he was not familiar with them ``in any fashion?''

Given these facts, it is hard to square Mr. McConnell's testimony before the committee with his sworn deposition testimony a couple of months later.

The litigation over these documents remains ongoing. We do not know how it will conclude. We do not know whether Mr. McConnell and his law firm will be held liable for the theft of these documents. But what is the Senate going to do if we confirm this individual but at some later date he or his law firm are found liable for theft? At that point, it will be too late. Members will not be able to reconsider their votes.

The Wall Street Journal recently opined that Mr. McConnell's ``changing story about his lead paint advocacy is enough by itself to disqualify him from the bench.'' I could not agree more.

There are other aspects of Mr. McConnell's record that concern me a great deal, which I will outline later. I will just conclude by saying this. I have supported the overwhelming majority of President Obama's judicial nominees. If it were up to me, I would not have nominated many of those individuals. But I supported them nonetheless. Mr. McConnell is in an entirely different category. I believe that he misled the committee when he testified before us. For that reason alone, I do not think he should be rewarded with a lifetime appointment to the Federal bench. But even if I did not have that concern, I could not support this nominee.

I yield back the time that was allotted to me.

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