Senate Majority Leader Harry Reid, D-Nev., filed cloture on a controversial federal judicial nomination this week.
As a result, nominee Jack McConnell could received a vote on the Senate floor and was confirmed as a federal district judge in his home state of Rhode Island.
McConnell’s rating from the American Bar Association is mediocre. His chief qualification is the $800,000 he and his wife gave in donations to Democratic candidates and committees at the state and federal level — generosity made possible by his success in tobacco litigation.
There is no recent precedent for such massive donations by federal judicial nominees. The biggest donor among President George W. Bush’s 261 federal district court nominees (a former county party chairman from Ohio) gave just over $80,000. Most judicial nominees make few donations or none at all.
But McConnell is less famous for his partisan philanthropy than for his legal innovation. With the cooperation of Rhode Island’s attorney general — currently Democratic U.S. Sen. Sheldon Whitehouse — McConnell litigated a $2.4 billion lead paint lawsuit on behalf of the state.
Lead paint is a dangerous product, and those injured by it can sue negligent landlords who fail to abate it. But rather than engage in such unprofitable nickel-and-dime litigation, McConnell went for the deepest pockets available.
He argued that lead paint, having been applied voluntarily to walls everywhere, is not just a dangerous product but an actual “public nuisance.” He argued that national paint companies (some of whom had merely acquired former manufacturers of lead paint) must pay for removal of all lead-based paint from every building in Rhode Island — a multibillion-dollar task.
At stake for his firm, Motley Rice, was a contingency fee worth one-sixth of the judgment — hundreds of millions of dollars.
McConnell swayed an Ocean State jury in 2006 and won his case. For a brief moment, it looked like he would be able to buy his own fleet of yachts and throw a few more million to Democrats.
But the Rhode Island Supreme Court overturned the decision, noting with alarm that his theory “would lead to a widespread expansion of public nuisance law that never was intended.”
The court even quoted Edmund Burke’s adage that “bad laws are the worst sort of tyranny,” and forced Rhode Island to pay for part of the defendants’ expenses.
“Public nuisance” is a long-established legal doctrine reserved for cases in which someone interferes with the rights of the public — say, by polluting public lands, air or water; or by building a dam that causes floods. In such cases, the malefactors can be forced to remedy the problems they cause for the community.
But as the Rhode Island decision affirmed, public nuisance law was never intended as a cudgel against those who sell legal products — paint, guns or subprime mortgages. Unfortunately, partly as an offshoot of McConnell’s innovation, plaintiffs’ lawyers and money-hungry governments have teamed up all over America to sue businesses in these areas and others.
As did McConnell’s case, these lawsuits usually fail. (The lead paint case has failed spectacularly, as McConnell’s firm stands accused of stealing documents from one paint company.)
But put enough judges like McConnell on the bench, and that could soon change. If President Barack Obama wants to create new and massive legal vulnerabilities for businesses of all stripes, and new opportunities for gold-mining by trial lawyers, he has chosen the right nominee.
Columnist David Freddoso is The Washington Examiner online opinion editor.