March 11, 2010

McConnell Joins Rogeriee

Marc Comtois

With their recommendations to President Obama to nominate local Democrat Party mega-donor lawyer Jack McConnell to the First Circuit Court of Appeals, we learn that Senators Reed and Whitehouse are proving to be unique evaluators of judicial talent. Apparently, McConnell has joined previous nominee O. Rogeriee Thompson as being one of the 4 nominees (out of 56) to receive a few "not qualified'' marks from the American Bar Association's judicial rating panel. Don't worry, though. It's not their fault!

Reed and Whitehouse have both expressed reservations about the ABA's system of rating candidates to the federal bench. Commenting on Thompson's ratings, Whitehouse said the ABA system tilts toward a "big-firm, corporate law" view of judges that "does not sufficiently value" her career of service. Reed has objected to the fact that the ABA discloses only its final grades on nominees, generally withholding any information about the interviews and other factors that led to the final grade.
Yeah, that's the ticket. Somehow the system routinely discriminates against Rhode Island's nominees (since Reed and Whitehouse started tag-teaming, anyway).

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"The A.B.A. reviewed prospective judges at the White House’s request for decades, until the [George W.] Bush administration — responding to conservative charges that the group had a liberal bias — stopped asking for its input.

Says the New York Times: Rather than being a result of bias, this disparity may reflect the degree to which recent Republican presidents put ideology ahead of excellence in selecting judges."

But you would expect that from the Times, wouldn't you?

Just sayin'

Posted by: Thomas Schmeling at March 11, 2010 6:57 PM

Assuming McConnell is a poor choice, let's recall that the RI federal bench has a unique history of truly awful federal appointments by both parties. Thankfully there's only so much damage these idealogues can do in the RI District Court.

I'd recommend that all should re-read Roger Williams Law School Professor Carl Bogus's courageous 2004 law review article "The Culture of Quiescence" about RI judges and the inept, emasculated, and sycophantic RI bar. A real eye-opener, sadly.

Posted by: Bill at March 11, 2010 8:06 PM


You're a person after my own heart. However, cite, please?


Posted by: Thomas Schmeling at March 11, 2010 8:14 PM

It really kind of reeks that McConnell contributed $700,000 more or less to one party in RI and then gets nominated for a Federal judgeship.
Prof.Schmeling,I am sure this appointment doesn't disturb you at all.You'll find some erudite way to endorse what amounts to a purchased position.
I'm not being partisan as I think Judge Thompson's appointment was a good one.
She can't sit on the RI Supreme Court because both her husband and brother in law are RI judges and she might have to recuse herself an inordinate number of times.

Posted by: joe bernstein at March 11, 2010 8:25 PM


I am quite sure that you have no idea what disturbs me and what doesn't.

Posted by: Thomas Schmeling at March 11, 2010 8:40 PM

Yes,I do, because you've made enough comments here to give me some idea.

Posted by: joe bernstein at March 11, 2010 9:14 PM


The Carl Bogus article was published in Vol. 9, pages 351-397 of the Roger Williams University Law Review (2004). I have a .pdf copy that I found on Google, I think from some obscure folder from the Projo's website, but the post doesn't seem to be there anymore.

Posted by: Bill at March 11, 2010 9:44 PM

Nice try, Joe, but I prefer to stick to the subject, which you don't seem to be able to do. In an attempt to get back to that:

Marc thinks that Whitehouse's point is that "Somehow the system routinely discriminates against Rhode Island's nominees"

Of course, that wasn't Whitehouse's point at all. It was that "the ABA system tilts toward a "big-firm, corporate law" view of judges". One can agree or disagree with this statement as one likes.

However, Marc's clear implication is that the Whitehouse's attack on the ABA committee is really an ideological attempt to deflect criticism of an unqualified nominee.

Is the claim that the ABA is really an objective, non-ideological evaluator of judicial quality?

Fine, but if so, one has to explain why G.W.Bush's criticism of the ABA is notideological.

I hope Marc will answer this,

Posted by: Thomas Schmeling at March 11, 2010 9:47 PM

It may be worth mentioning that many, and I suspect a majority, of lawyers in the US do not belong to the ABA -- and many former members have quit. Once considered fairly impartial politically and otherwise, many see the ABA in recent years as having lost that impartiality.

Posted by: Bill at March 11, 2010 9:56 PM

It is common knowledge in the legal community that the ABA is extremely liberal/Democratic, on social issues at least.

The ABA rules of professional conduct are just ridiculous. A judge can be sanctioned simply for eating in an establishment that discriminates against gays/women for example. Obviously I don't agree with discrimination, but you see my point.

Posted by: Dan at March 11, 2010 10:49 PM

Dan says, " A judge can be sanctioned simply for eating in an establishment that discriminates against gays/women for example."

Not to disagree, but do you have a cite for that proposition?

Posted by: Thomas Schmeling at March 11, 2010 11:21 PM


A second look with Google found a .pdf copy of the Bogus article:

Posted by: Bill at March 11, 2010 11:39 PM

Thanks for the link, Bill.

I look forward to reading Bogus' article.


Posted by: Thomas Schmeling at March 12, 2010 12:24 AM

"Not to disagree, but do you have a cite for that proposition?"

Code of Judicial Conduct:
"Canon 2. A Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities
C. A judge shall not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion or national origin."

That's the governing rule. I realize that it does not explicitly state what I have asserted, but the exact same hypothetical I gave was on this fall's MPRE exam, and the 2009 BARBRI MPRE prep book had a very similar hypothetical and answer explaining that regular attendance or dining could be construed as impropriety, and individous discrimination can cover sexual orientation. I cannot cite to either source for copyright and license reasons, unfortunately.

Posted by: Dan at March 12, 2010 1:19 AM

Tom-this is an open forum,not a class.
I can't answer anything abot the ABA Committee in any event since I wouldn't know.
I believe the level of contributions alone is enough to give the wrong appearance to this appointment.
Given Whitehouse's recent severe criticism of the Supreme Court,it stands to reason this support of McConnell is ideological in his case at least.I don't think money plays a role there because McConnell financed Myrth York's campaign against Whitehouse,which she won.
Reed,as senior Senator oriiginated the nomination,and given Reed's questionable practices about accepting money,it's not a reach to think it plays a role here.

Posted by: joe bernstein at March 12, 2010 3:21 AM

It's really a sad commentary but no surprise that both nominees are viewed as lightweights.
Look who nominated them.
Liberalism = mediocrity and Little Jack and Wheldon Shitehouse are as liberal as the come.
For the record Jack McConnell is a certifiable nutjob. A sad commentary on this crumbling Republic that such an unstable political hack can actually buy a Federal judgeship.

Posted by: Tim at March 12, 2010 7:45 AM

I'm not talking about ideology at all, you're making that assumption based on your assumption of what I think Whitehouse is trying to do. Cripes, KISS, Tom, KISS.

I get Whitehouse's point, which was particular to Thompson at the time...."the ABA system tilts toward a 'big-firm, corporate law' view of judges". OK, fine. Hey, maybe he's right.

But now we have another nominee--one who would seem to have some ties to big law btw (tobacco, lead paint)--from RI who ALSO gets some NQs. I don't think the big law firm thing flies in this case.

Like I said, KISS: I think it's reasonable to question why RI is unique in having not just 1 of 3 nominees with NQs but now 2 of 4 with NQs. Most other Senators have managed to nominate people who don't get the NQs, much less 2. So why are our Sen's 2 for 2 in getting some NQs? Are they so unique in their judicial judgement that they get it right and every other senator (and senatorial staff) is wrong? I think it's a reasonable question and doesn't require delving into codes and the ideology of the ABA, etc.

Posted by: Marc at March 12, 2010 8:49 AM

Look, I consider myself very conservative politically and legally, and it would probably be very difficult for me to find common ground with Jack McConnell or Judge Thompson on very many points.

But anyone who says that either one is not highly qualified to serve in their respective prospective positions is, in my view, way out of line.

I say this as one who has appeared before numerous U.S. District and Circuit judges.

With regard to Judge Thompson, she brings a much-needed perspective to the First Circuit: that of a judge who has served for many years in two very, very busy state trial courts. This has been sorely lacking in that court for a number of years (I think Justice Souter may be the last former state trial judge to sit there).

I suspect that the A.B.A. process is biased in favor of large firms, Ivy schools, and A.U.S.A.s for a variety of reasons.

As for the ideological leanings of these nominees -- it's just another example of the notion that elections have consequences. I might not nominate either one based on those leanings, but I don't get that choice. My plan for dealing with that is to vote against the person who nominated them

As to their legal abilities? Both are outstanding and deserve confirmation.

Posted by: brassband at March 12, 2010 9:28 AM

Brass-I don't believe Thompson will be an ideologue on the court and McConnell will-and doesn't an average of $70,000 a year for 10 years to one party give you a little pause?

Posted by: joe bernstein at March 12, 2010 1:18 PM

Coincidence, Joe. Pure coincidence.

Posted by: Dan at March 12, 2010 1:25 PM

Joe --

Why should political contributions give me pause?

McConnell has made a lot of money and he has used it to support the causes in which he believes. I suspect that he's given quite a lot to charity, as well, not just to political candidates.

And $70,000 per year to one party is quite a lot, but frankly I'm much more skeptical about those folks who give the max to both sides.

I don't think that Jack McConnell would be the first U.S. District Judge in R.I. history whose political/fundraising ties helped him along. Can you name one who got there without some connection to a U.S. Senator?

Let's not kid ourselves, federal judges are -- and always have been -- products of the political process.

For the most part the system has worked as well as any humanly administered process can.

Posted by: brassband at March 12, 2010 9:38 PM

Well,I just don't see him as a good judge for any reason.He's also a staff attorney for the ACLU,and that organization has become an adjunct to foreign terrorists-just check out their John Adams Project.
I really have nothing to lose by saying what I want to-after all,I'm not an attorney who may have to appear before him.I know you use a pseudonym,but I'm also sure his acolyte,Matt Jerzyk probably knows who you are.
After I heard McConnell speak,I realized where Matt got his syntax from.It turns out he has worked for McConnell.
I'm not naive enough to be unaware that judgeships are political patronage.
Considering some of the counterintuitive decisions I've seen,I'm not sure the system works very well at all.

Posted by: joe bernstein at March 13, 2010 12:40 AM

Joe --

I would never nominate an ACLU attorney to a judgeship, nor would I vote for a Senator who recommends one or a President who appoints one.

But I don't get to nominate. The people voted for Reed, Whitehouse, and Obama so they get to pick judges who conform to their ideological leanings and legal philosophies.

As an attorney attempting to evaluate the "qualifications" of those nominees, I try to reason as I hope they would do as judges; look beyond my own (and their) ideological and philosophical views and measure them based on their learning, intelligence, and character.

Would I prefer conservative nominees who believe, as I do, that the Constitution should be interpreted in a manner consistent with its original understanding?

Yes, I would.

That's why I don't vote for candidates like Obama, Whitehouse, or Reed (and why I would -- if I could afford to -- donate the type of money to their opponents that McConnell has donated to his preferred candidates).

Posted by: brassband at March 13, 2010 7:17 AM

I know where you stand,if all the posts you've written here and elsewhere reflect your true attitude.And I'm sure they do.No need to explain.
I was only saying that I'm unecumbered by any possible retaliation,however subtle.

Posted by: joe bernstein at March 13, 2010 1:35 PM
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