Earlier today, the Senate broke a GOP filibuster on district court nominee Jack McConnell by a vote of 63-33, despite a scorched earth campaign by the U.S. Chamber of Commerce, which objects to the fact that McConnell spent much of his legal career trying to hold lead paint companies and the tobacco industry accountable to their consumers. No one worked harder to promote the corporate lobby’s smear campaign on McConnell than Sen. John Cornyn (R-TX). Indeed, Cornyn even had the audacity to accuse McConnell of perjuring himself before the Senate Judiciary Committee:
I don’t know how I can say it any more gently—the fact is, he lied to the Senate Judiciary Committee during his confirmation process. [...]
This involved his participation in – or involvement with – a set of stolen confidential documents that his law firm obtained during a lawsuit against the Sherwin Williams Company.
In 2010, in his answers to written questions from the committee, Mr. McConnell told members, that ‘I would not say I was familiar with the documents in any fashion.’
Only a few months later, in September of 2010, this same nominee gave a deposition in an Ohio court where he testified that he was the first attorney at his firm to review the documents in question…that he had drafted a newspaper editorial citing information that had come from those documents and that portions of those documents were incorporated in a brief filed under his signature.
First of all, Cornyn’s claim that McConnell’s firm obtained “stolen confidential documents” is credulous at best. McConnell’s firm obtained 34 pages of Power Point slides that were presented to paint company Sherwin-Williams’ board regarding the lead paint cases. Sherwin-Williams claims they were somehow obtained illegally, McConnell’s firm believes that they came from a whistle-blower within Sherwin-Williams, and a lawsuit that will resolve this question is still pending in Ohio court.
More importantly, Cornyn’s claim that McConnell “lied to the Senate Judiciary Committee” is, well, a lie. Despite Cornyn’s accusation that McConnell denied any knowledge of the documents in question, here’s what McConnell actually told the Judiciary Committee:
[Question:] Were you familiar with these documents, prior to this suit being filed in Ohio? Please explain your answer.
Response: I saw the documents prior to suit being filed in Ohio. I briefly saw them when they were first faxed to our firm and then again a few years later, I saw them when we submitted one page of the documents to the court in Rhode Island. I would not say I was familiar with the documents in any fashion.
So, while McConnell did utter the words “I would not say I was familiar with the documents in any fashion” he also unambiguously stated that he saw the documents on two occasions. This testimony before the Judiciary Committee is entirely consistent with the deposition testimony where Cornyn accuses McConnell of contradicting himself:
- On page 42 of the deposition McConnell explains that the documents were faxed to the attention of another attorney in his office named Fidelma Fitzpatrick, McConnell explains that a secretary asked what she should do with the documents right after they arrived, and McConnell “leafed through the 34 pages and said, oh, this must have come from the whistle-blower, call Fidelma and see what she wants you to do with it.”
- On pages 33-37 of the deposition, McConnell describes an incident when he reviewed a legal filing that had one of the 34 pages attached to it.
In other words, McConnell said exactly the same thing in both his deposition and his response to the Committee.
It’s sad that Cornyn was willing to give the Chamber an effective veto over McConnell’s nomination — but it is utterly inexcusable that a senator would falsely accuse a future judge of lying despite no evidence whatsoever supporting this claim.