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Senate Proceeding on May 4th, 2011 :: 7:13:00 to 7:34:10
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John Cornyn

7:12:57 to 7:13:17( Edit History Discussion )

John Cornyn: yield the floor. mr. cornyn: the presiding officer: the senator from texas. mr. cornyn: thank you, mr. president. earlier today we had a cloture vote on the nomination of jack mcconnell to be a united states district judge for rhode island, and 63 senators voted to cut off debate and to move then

John Cornyn

7:13:00 to 7:34:10( Edit History Discussion )
Speech By: John Cornyn

John Cornyn

7:13:18 to 7:13:41( Edit History Discussion )

John Cornyn: to a final vote on confirmation, which will occur i'm told around 5:30, shortly. but first i wanted to come to the floor and expand a little bit on some of my earlier comments with regard to this nomination and why i am so strongly opposed to it.

John Cornyn

7:13:42 to 7:14:02( Edit History Discussion )

John Cornyn: and just to make a few other comments. 33 years ago -- i counted -- i became a lawyer, a member of the legal profession. while i have heard as many lawyer jokes as a person can stand in a lifetime, i am actually proud of the legal profession and what tracted me to it -- and what attracted me

John Cornyn

7:14:03 to 7:14:24( Edit History Discussion )

John Cornyn: to it was its study of the larks the rule of law, and the majesty of law being made by elected representatives of the american people speaking for the american people themselves. a profession that observes a rule of ethics, that is not just who is can get the most the

John Cornyn

7:14:25 to 7:14:45( Edit History Discussion )

John Cornyn: fastest but one that actually requires lawyers to practice according to a standard of ethics, and then third, the obligation and the responsibility that comes with representing a client. in other words, it's not the lawyer who is speaking on their own behalf but the lawyer who is

John Cornyn

7:14:46 to 7:15:07( Edit History Discussion )

John Cornyn: speaking on behalf of a client whether they have been arrested around charged with a crime, whether they have been injured in an accident and seeking compensation for some wrongdoing, and to deter future acts -- similar acts in the future, or it is a commercial dispute over contract or some

John Cornyn

7:15:08 to 7:15:29( Edit History Discussion )

John Cornyn: other relationship. i really, really believe that it is the rule of law and our adherence to ethical standards and the fact that the legal profession serves the interest of clients who need help, many of whom don't have a voice themselves or certainly the capability of representing themselves, who needs somebody who can help them.

John Cornyn

7:15:30 to 7:15:52( Edit History Discussion )

John Cornyn: but i have to tell you that it is because of my respect for, add admiration for the legal profession that it makes me angry when i see people making mockery out of the foundational principles i just mentioned. the rule of law, ethics and the

John Cornyn

7:15:53 to 7:16:13( Edit History Discussion )

John Cornyn: fiduciary duty owed to a client. i had, after i practiced law for awhile, i had the great honor of being elected to and serving as a district judge in my home city of san antonio. not only did i represent clients as an advocate in court, i had the responsibility of presiding over trials and making sure

John Cornyn

7:16:14 to 7:16:35( Edit History Discussion )

John Cornyn: people were treated impartially, the same and according to the rule of law, that it was not a matter of who you were and how much money you had, but that everybody could have access to our system of justice. later i was honored to be elected to serve on the texas supreme court for seven years, where i was an appellate judge, and i wrote legal opinions

John Cornyn

7:16:36 to 7:16:56( Edit History Discussion )

John Cornyn: basically grading the papers of some of those trial judges and making sure that indeed we had equal justice under the law. and then i was, served as attorney general for four years before i came here, during which time i became acquaint wad

John Cornyn

7:16:57 to 7:17:18( Edit History Discussion )

John Cornyn: certain class of -- acquainted with a certain class of entrepreneurial lawyers that i think threatened the very rule of law that i have been talking about. i previously talked about my objections to jack mcconnell's nomination to serve and confirmation to serve as a federal judge because i believe he intentionally misrepresented certain facts before the senate

John Cornyn

7:17:19 to 7:17:39( Edit History Discussion )

John Cornyn: judiciary committee. mr. mcconnell and his firm have been sued in ohio stealing certain -- and maintaing custody of certain stolen documents in a lead paint lawsuit that i'll talk about here in a moment. and, as a matter of fact, earlier today i introduced an article that demonstrates that

John Cornyn

7:17:40 to 7:18:01( Edit History Discussion )

John Cornyn: that legal dispute still is raging and is not yet resolved. and yet, the senate is moving ahead and will likely confirm someone to a life teen neuro job -- ten life tenure job as a federal judge.

John Cornyn

7:18:02 to 7:18:25( Edit History Discussion )

John Cornyn: why are we taking the risk that this individual will be given a lifetime job as a federal judge might ultimately be found culpable in something that is certainly disqualifying if he is responsible for it? but i want to talk just a little bit more about -- well, i want

John Cornyn

7:18:26 to 7:18:48( Edit History Discussion )

John Cornyn: to tell a story. and i think it helps make the point i want to convey. once upon a time there was an enterprising lawyer and some of his law partners who were trying to figure a new way to make a lot of money. and

John Cornyn

7:18:49 to 7:19:09( Edit History Discussion )

John Cornyn: said i have a plan to do that. first we have to pick a product or sector of the economy that is unpopular even though it's legal. for example, tobacco. exactly, one of the lawyers said. he said we pick a product like

John Cornyn

7:19:10 to 7:19:32( Edit History Discussion )

John Cornyn: tobacco, sue the manufacturers and we make a lot of money. the problem is we already tried to do that in individual lawsuits that are designed to compensate victims and deter wrongdoing. but we lost all of those lawsuits. well, the enterprising young lawyer who suggested this plan said we did, but now we have a new legal theory.

John Cornyn

7:19:33 to 7:19:54( Edit History Discussion )

John Cornyn: we have a new approach. and legal theories that have never actually been embraced or accepted by the courts. one of the other lawyers said, how does that work? doesn't it -- what's the theory, stph to which the other respond, well, the theory really doesn't matter because this case will never be tried.

John Cornyn

7:19:55 to 7:20:18( Edit History Discussion )

John Cornyn: but it will be settled for billions of dollars. and that takes us to the second part of the plan. the truth is the client or the person who would be represented is not an individual victim who is harmed as a result of some wrongdoing by a manufacturer of the product.

John Cornyn

7:20:19 to 7:20:39( Edit History Discussion )

John Cornyn: but instead of that, it's the state. a state. how do you get hired to represent a state? well, you've got to get the attorney general, my former job. you've got to get the attorney general who is the chief law enforcement officer of the state to basically hire you and delegate to you the sovereign law enforcement power of the

John Cornyn

7:20:40 to 7:21:03( Edit History Discussion )

John Cornyn: state, in this case to sue the makers of a product. and part of this scheme is you sue not just for damages to one individual or group of individuals, you sue for essentially everyone in the state, alleging billions of dollars in damages. the key reason this is so important to this scheme, of

John Cornyn

7:21:04 to 7:21:25( Edit History Discussion )

John Cornyn: course, is because this is a break the company lawsuit. it is an existential threat to the existence of this company, far bigger than any legal threat they may have faced in the past because the damages are enormous. and every potential juror that would sit in judgment of the case being a constituent of that

John Cornyn

7:21:26 to 7:21:46( Edit History Discussion )

John Cornyn: state would be -- would stand to benefit in some way or another from any judgment rendered against this company. and of course there's the power of the state itself to launch perhaps a negative publicity campaign against this company or sector and erode the value, the stock value of this company in

John Cornyn

7:21:47 to 7:22:08( Edit History Discussion )

John Cornyn: order to compel them or force them into a settlement posture. well, part of this scheme is that even though the chances of winning in court are very slim, even a small risk of losing everything, wiping out

John Cornyn

7:22:09 to 7:22:32( Edit History Discussion )

John Cornyn: shareholders, retirees, pension funds and employees, that even that small risk is enough to cause the defendant to consider coming to the settlement table. and, true, that even if you have a chance, liability is very thin and you think that you aren't responsible, that you still have

John Cornyn

7:22:33 to 7:22:53( Edit History Discussion )

John Cornyn: to navigate the maze of litigation through the trial, the appellate and the supreme court. and you know, you might just win if they can outlast their adversaries. but in the meantime, as i indicated earlier, the stock price takes a beating, management is consumed with defending the lawsuit rather than running the business.

John Cornyn

7:22:54 to 7:23:14( Edit History Discussion )

John Cornyn: and millions of dollars are being spent on their own lawyers in order to defend this case. well, in this story, the law partners of this enterprising young lawyer say that sounds like a great plan. we could earn a lot of money, to which the lawyer proposing this says, well, we could earn more

John Cornyn

7:23:15 to 7:23:35( Edit History Discussion )

John Cornyn: than you can possibly imagine because our compensation may well exceed $100,000 an hour. how do you do that? no one can charge $100,000 as a legal fee. this is the best part from their perspective. they won't actually negotiate an hourly fee under the supervision

John Cornyn

7:23:36 to 7:23:56( Edit History Discussion )

John Cornyn: of a judge that reflects prevailing ethical standards. instead they'll negotiate a deal with this attorney general for the state on a contingency fee basis in a no-bid noncompetitive contract. and so then they would get a percentage of any amount of

John Cornyn

7:23:57 to 7:24:18( Edit History Discussion )

John Cornyn: money recovered in this bet the company lawsuit. since there are no costs up front for the taxpayer, the state attorney general would look like a hero even if the lawsuit was unsuccessful. but if he seeds succeeds these lawyers would get a significant percentage of an astronomical sum of money. no funds would be appropriated by the legislator to finance the

John Cornyn

7:24:19 to 7:24:39( Edit History Discussion )

John Cornyn: litigation, so the official, the state official can make the ethically fallacious and ethically dubious claim that no tax dollars will be used to pay legal fees. the official enters this no-bid contract for legal services from lawyers whose future political support, including campaign contributions, is assured.

John Cornyn

7:24:40 to 7:25:01( Edit History Discussion )

John Cornyn: and the official can expect to be lauded as a popular hero in the press by his willingness to take on an unpopular industry. now, as part of this scheme and story to leverage the chances for success, these lawyers then cherry pick the court where the

John Cornyn

7:25:02 to 7:25:24( Edit History Discussion )

John Cornyn: lawsuit is filed, a court well known for being friendly to these sorts of claims. and seeing the handwriting on the wall, ultimately as part of this scheme the plan would be that the defendants, even though they're not -- the chances of proving them responsible are very slim, the risk of losing and losing the company are so

John Cornyn

7:25:25 to 7:25:45( Edit History Discussion )

John Cornyn: huge that they decide to go to the settlement table. well, here's the deal, these plaintiffs' lawyers say under this scheme, and in some ways it turns out to be a lifeline to the defendants. first, the good news. the defendants will survive.

John Cornyn

7:25:46 to 7:26:06( Edit History Discussion )

John Cornyn: they won't be at risk of losing the company, the employees, the stock price, the pensioners, the retirees who depend on the existence of the company. secondly, the business will continue to operate. and here's the best part. the judgment that will be entered will ultimately, from the standpoint of the company,

John Cornyn

7:26:07 to 7:26:28( Edit History Discussion )

John Cornyn: ultimately bar any future lawsuits. and the defendants agree rather than paying a lump sum settlement out of their current assets to pay hundreds of billions of dollars to these lawyers and the state out of future profits. well, how do you make sure you don't have to dip into your current assets? well, basically the defendants agree under this arrangement to

John Cornyn

7:26:29 to 7:26:49( Edit History Discussion )

John Cornyn: raise the price of their product for consumers. so ultimately the consumers pay, and the defendants will pay the attorneys' fees out of this same income stream. now, these lawyers in this story believe this is really a stoke of jean skwrus.

John Cornyn

7:26:50 to 7:27:10( Edit History Discussion )

John Cornyn: while no -- genius while no person will receive a penny, and indeed as a result the defendant will not be deterred from engaging in that sort of conduct, nor will, as i say, any victim be compensated, the state recovers a windfall of damages without having to appear to raise taxes. although the increased price for

John Cornyn

7:27:11 to 7:27:31( Edit History Discussion )

John Cornyn: the product is passed along to consumers. well, as a result of this deal, the defendant's stock price rebound, they can stay in business essentially as a partner with this law firm whose legal fees will be paid out of future sales revenue. and the state official that

John Cornyn

7:27:32 to 7:27:52( Edit History Discussion )

John Cornyn: agrees to this ingenious scheme is elected to higher office in part on the strength of this david versus goliath story. the only problem with this story, mr. president, is that it is no fairy tale.

John Cornyn

7:27:53 to 7:28:16( Edit History Discussion )

John Cornyn: so who are these lawyers who dreamed up this ingenious scheme to partner with a state official to be able to be delegated the sovereign power of the state and collect fabulous wealth in the form of attorneys' fees that no judge will award and no jury will award because it's part this have settlement?

John Cornyn

7:28:17 to 7:28:37( Edit History Discussion )

John Cornyn: well, jack mcconnell, the nominee, and his law firm whose web site says mcconnell played a central role in the historic litigation against the tobacco industry in which $246 billion in all was recovered. it says on behalf of the state attorneys general he served as

John Cornyn

7:28:38 to 7:29:01( Edit History Discussion )

John Cornyn: negotiator and primary drafter of the settlement agreement. as a result mr. mcconnell told us in the judiciary committee he expects to collect between $2.5 billion and $3.1 billion a year from now through 2024. and what's more, jack mcconnell now finds himself

John Cornyn

7:29:02 to 7:29:23( Edit History Discussion )

John Cornyn: nominated to be a federal judge in whose court future ingenious but ethically dubious schemes can be expected to have a warm reception. mr. president, this is the type of thing that stuart taylor, a well-respected legal commentator, called -- he said

John Cornyn

7:29:24 to 7:29:44( Edit History Discussion )

John Cornyn: the rule of law has now morphed under these sorts of schemes under the rule of lawyers. he's talked about the sequel to this litigation i've described in this story which was the lead paint lawsuit which we've talked about a little before which was unanimously rejected by the rhode island supreme court frivolous litigation. as a matter of fact,

John Cornyn

7:29:45 to 7:30:05( Edit History Discussion )

John Cornyn: mr. mcconnell and his law firm were assessed fees of over $200,000. but mr. taylor said it's litigation this have type which has perverted the legal system for personal or political gain at the expense of everyone else. strong words, hard words, but

John Cornyn

7:30:06 to 7:30:27( Edit History Discussion )

John Cornyn: think the senate needs to know the type of nominee that we're voting on and the american people need to know what the record of this nominee is so then they can hold the senators who vote for his confirmation accountable. but this isn't a partisan issue. it really isn't. this isn't even about ideology. this is about ethics.

John Cornyn

7:30:28 to 7:30:48( Edit History Discussion )

John Cornyn: this is about upholding the rule of law. well, mr. president, i'd ask unanimous consent to -- after the close of my remarks to make part of the record a "wall street journal" article january 12, 2000, by robert b.ryke. the presiding officer: without

John Cornyn

7:30:49 to 7:31:09( Edit History Discussion )

John Cornyn: objection. corning corning he was secretary -- mr. cornyn: he was secretary of labor during the clinton administration and he wrote an article in "the wall street journal," that i think is appropriate for what i'm talking about. the head of the -- the lead of the article from this prominent democrat, member of cabinet secretary under bill clinton, is

John Cornyn

7:31:10 to 7:31:31( Edit History Discussion )

John Cornyn: don't democrats believe in democracy? that's the -- that's the title. and i won't read all of it, but i will read just a few sentences. in talking about this kind of government-sponsored litigation by outsourcing the responsibilities of the sovereign government and the elected officials to contingency

John Cornyn

7:31:32 to 7:31:53( Edit History Discussion )

John Cornyn: fee lawyers whose only motive is maximizing their personal profit, he said, the biggest problem is that these lawsuits are end runs around the democratic process. he says, we used to be a nation of laws. but this new strategy presents a novel means of legislating within settlement negotiations

John Cornyn

7:31:54 to 7:32:15( Edit History Discussion )

John Cornyn: of large civil lawsuits initiated by the executive branch. this is faux legislation which sacrifices democracy to the discretion of officials operating in secrecy. well, i agree secretary wright. i think this is a threat to our democracy. again, i don't think it should

John Cornyn

7:32:16 to 7:32:39( Edit History Discussion )

John Cornyn: be viewed as a partisan issue even though he has that provocative headline and he's talking about members of his own party who have endorsed and initiated some of this type of litigation. we had an earlier vote, as we said where 63 senators voted to close off debate and we will

John Cornyn

7:32:40 to 7:33:01( Edit History Discussion )

John Cornyn: have a vote here in short order. and i know some senators have indicated that they voted to close off debate because they felt that was the appropriate vote to make, but they were going to vote against mr. mcconnell's nomination. so we'll see how many votes he gets, but we know if it's a party line vote, there's 53

John Cornyn

7:33:02 to 7:33:23( Edit History Discussion )

John Cornyn: democrats in this body and 47 republicans. if it's a party line vote, mr. mcconnell's going to be a federal judge. but i think it is important to make the record crystal clear as to the type of nominee that -- that senators are voting on. i think it's my responsibility to my constituents. it's my responsibility to the

John Cornyn

7:33:24 to 7:33:46( Edit History Discussion )

John Cornyn: senate to express the strong objections i have to this nominee. surely -- i know there are better people for the president to nominate in rhode island. two of them serve in the -- in the u.s. senate here. i mean there are other people qualified -- qualified people who can be nominated.

John Cornyn

7:33:47 to 7:34:07( Edit History Discussion )

John Cornyn: and i just believe that this ethically challenged nominee who has according to the words of stuart taylor perverted -- among a class of lawyers who have perverted the legal system for% and political gain at the against of everyone else is the wrong person for this job and so i will be voting against the nomination.

John Cornyn

7:34:08 to 7:34:10( Edit History Discussion )

John Cornyn: mr. president, i yield the floor. a senator: mr. president?

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