<DOC>
[109 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:34112.wais]
S. Hrg. 109-853
CONFIRMATION HEARING ON THE NOMINATION OF THOMAS B. GRIFFITH, OF UTAH,
TO BE CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
MARCH 8, 2005
__________
Serial No. J-109-61
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
Michael O'Neill, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts, prepared statement.............................. 149
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 7
prepared statement........................................... 164
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 6
PRESENTERS
Bennett, Hon. Robert F., a U.S. Senator from the State of Utah
presenting Thomas B. Griffith, of Utah, to be Circuit Judge for
the District of Columbia Circuit............................... 4
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah
presenting Thomas B. Griffith, of Utah, to be Circuit Judge for
the District of Columbia Circuit............................... 1
STATEMENT OF THE NOMINEE
Griffith, Thomas B., of Utah, to be Circuit Judge for the
District of Columbia Circuit................................... 10
Questionnaire................................................ 11
QUESTIONS AND ANSWERS
Responses of Thomas B. Griffith to questions submitted by Senator
Feingold....................................................... 43
Responses of Thomas B. Griffith to questions submitted by Senator
Feinstein...................................................... 47
Responses of Thomas B. Griffith to questions submitted by Senator
Kennedy........................................................ 57
Responses of Thomas B. Griffith to questions submitted by Senator
Leahy.......................................................... 63
SUBMISSIONS FOR THE RECORD
Albright, G. Mark, Esq., Albright, Stoddard, Warnick & Palmer,
Las Vegas, Nevada, letter...................................... 75
Alliance for Justice, Washington, D.C., statement................ 77
American Association of University Women, Nancy Rustad,
President, and Jacqueline E. Woods, Executive Director,
Washington, D.C., letters...................................... 87
Andrews, Walter J., Shaw Pittman LLP, Washington, D.C. letter.... 102
Augustine-Adams, Kif, Professor of Law, J. Reuben Clark Law
School, Brigham Young University, Provo, Utah, letter.......... 103
Baldwin, John C., Executive Director, Utah State Bar, Salt Lake
City, Utah, letter............................................. 105
Bertelsen, Delora P., Managing Director, Employee Relations and
Equal Opportunity, Brigham Young University, Provo, Utah,
letter......................................................... 106
Bowlsby, Robert A., Director, Iowa Hawkeyes, University of Iowa,
Iowa City, Iowa, letter........................................ 107
Brunner, Thomas W., Wiley Rein & Fielding LLP, Washington, D.C.,
letter......................................................... 108
Cobb, John H., Attorney at Law, Helms Mulliss & Wicker, PLLC,
Washington, D.C., letter....................................... 110
Community Rights Counsel and Earthjustice, Washington, D.C.,
joint letter and attachment.................................... 112
Ellis, Mark S., Executive Director, International Bar
Association, London, United Kingdom, letter.................... 117
Faculty and administrators at the J. Reuben Clark Law School,
Constance K. Lundberg, Associate Dean, Professor of Law,
Katherine D. Pullins, Associate Dean, May H. Hoagland,
Assistant Dean, Provo, Utah, joint letter...................... 119
Foggan, Laura A., Wiley Rein & Fielding LLP, Washington, D.C.,
letter......................................................... 121
Former Utah Bar Presidents, John A. Adams, Charles R. Brown,
Scott Daniels, Randy L. Dryer, Dennis V. Haslam, Provo, Utah,
joint letter................................................... 122
Freedman, Monroe H., Professor of Law, Hofstra University, School
of Law, Hempstead, New York, letter............................ 123
Grames, Conan P., Chairman, International Section, Kirton &
McConkie, Attorneys at Law, Salt Lake City, Utah, letter....... 126
Guynn, Randall D., Davis Polk & Wardwell, New York, New York,
letter......................................................... 127
Hansen, H. Reese, J. Reuben Clark Law School, Brigham Young
University, Provo, Utah, letter................................ 129
Huefner, Steven F., Ohio State University, Moritz College of Law,
Columbus, Ohio, letter......................................... 132
Ivey, Glenn F., Upper Marlboro, Maryland, letter................. 134
Jones, Brian W., General Counsel, Department of Education,
Washington, D.C., letter....................................... 135
Justice for All Project, Susan Lerner, Chair, Committee for
Judicial Independence, Los Angeles, California, letter and
attachment..................................................... 137
Keegan, Lisa Graham, Education Leaders Council, Washington, D.C.,
letter......................................................... 146
Kendall, David E., Williams & Connolly, LLP, and Lanny A. Breuer,
Covington, & Burling, Washington, D.C., joint letter........... 148
Khoury, Paul F., Wiley Rein & Fielding LLP, Washington, D.C.,
letter......................................................... 152
Lawson, Rodney H., Attorney at Law, Carrington Coleman Sloman &
Blumenthal LLP, Dallas, Texas, letter.......................... 154
Lawyers in the organized bar, Washington, D.C., joint letter..... 156
Leadership Conference on Civil Rights, Wade Henderson, Executive
Director and Nancy Zirkin, Deputy Director, Director of Public
Policy, Washington, D.C., letters.............................. 160
Legal Momentum, Lisalyn R. Jacobs, Vice President of Government
Relations, Washington, D.C., letter............................ 168
Leland, Ted, Jaquish & Kenninger Director of Athletics, Stanford
University, Stanford, California, letter....................... 170
McConkie, Oscar W., Attorney at Law, Kirton & McConkie, Salt Lake
City, Utah, letter............................................. 171
Mexican American Legal Defense and Educational Fund, Ann Marie
Tallman, President and General Counsel, Washington, D.C.,
letter......................................................... 172
Members of Congress, Rosa L. DeLauro, Louise M. Slaughter, Betty
McCollum, Carolyn McCarthy, Carolyn B. Maloney, Barney Frank,
Jim McDermott, Neil Abercrombie, Raul M. Grjalva, Tammy
Baldwin, Eddie Bernice Johnson, Stephanie Tubbs Jones, Gene
Green, Lynn C. Woolsey, Nita M. Lowey, Marcy Kaptur, Sherrod
Brown, Hilda L. Solis, Barbara Lee, John B. Larson, Eleanor
Holmes Norton, Diane E. Watson, Flijah E. Cummings, James L.
Oberstar, Joseph Crowley, Madeleine Z. Bordallo, Dennis J.
Kucinich, Maxine Waters, Janice D. Schakowsky, Sheila Jackson-
Lee, Marty T. Meehan, Tom Lantos, Corrine Brown, Chris Van
Hollen, Washington, D.C. joint letter.......................... 176
Michaelis, Elaine, Executive Director, Women's Athletics, Brigham
Young University, Provo, Utah, letter.......................... 181
Mikva, Abner J., former Chief Judge, Court of Appeals for the
D.C. Circuit, and Visiting Professor, University of Chicago Law
School, Chicago, Illinois, letter.............................. 183
Morgan, Thomas D., Oppenheim Professor of Antitrust and Trade
Regulation Law, George Washington University Law School,
Washington, D.C., letter....................................... 184
Moyer, Homer E., Jr., Miller & Chevalier, Washington, D.C.,
letter......................................................... 187
National Association for the Advancement of Colored People,
Hilary O. Shelton, Director, Washington, D.C., letter.......... 188
National Coalition for Women and Girls in Education, Lisa M.
Maatz, Chair, and Jocelyn Samuels, Vice-Chair, Washington,
D.C., letter and attachments................................... 190
National Council of Jewish Women, Marsha Atkind, President,
Washington, D.C., letter....................................... 196
National Employment Lawyers Association, San Francisco,
California, statement.......................................... 198
National Organization for Women, Olga Vives, Action Vice
President, Washington, D.C., letter............................ 201
National Partnership for Women & Families:
Debra L. Ness, President, March 7, 2005, letter.............. 202
Judith L. Lichtman, President and Debra Ness, President-
Elect, June 30, 2004, letter............................... 206
National Women's Law Center, Nancy Duff Campbell, Co-President,
and Marcia D. Greenberger, Co-President, Washington, D.C.:
February 16, 2005, letter and attachment..................... 209
June 17, 2004, letter........................................ 217
June 9, 2004, letter......................................... 219
Olson, Eric C., Attorney at Law, Kirton & McConkie, Salt Lake,
City, Utah, letter............................................. 221
People for the American Way, Ralph G. Neas, President,
Washington, D.C., letter....................................... 223
Robinson, Russell M., II, Robinson Bradshaw & Hinson, Charlotte,
North Carolina, letter......................................... 233
Robinson Bradshaw & Hinson, Charlotte, North Carolina, joint
letter......................................................... 234
Rogers, Sandra, International Vice President, Brigham Young
University, Provo, Utah, letter................................ 237
Scharman, Janet S., Student Life Vice President, Brigham Young
University, Provo, Utah, letter................................ 238
Simon, Rita J., University Professor, Title IX Commissioner,
American University, Washington, D.C., letter.................. 239
Spanier, Graham B., President, Pennsylvania State University,
University Park, Pennsylvania, letter.......................... 240
Stroup, Sally L., Assistant Secretary, Office of Postsecondary
Education, Department of Education, Washington, D.C., letter... 242
Stuntz, William J., Professor of Law, Harvard Law School,
Cambridge, Massachusetts, letter............................... 244
Tolbert, David, Deputy Registrar, Interanational Criminal
Tribunal for the former Yugoslavia, The Hague, Netherlands,
letter......................................................... 246
Walker, Samuel D., Esq., Chief Legal Officer and Public Affairs
Vice President, Coors Brewing Company, Littleton, Colorado,
letter......................................................... 247
Wardle, Lynn D., Professor of Law, J. Reuben Clark Law School,
Brigham Young University, Provo, Utah, letter.................. 248
Waxman, Seth P., former Solicitor General of the United States
and Partner, Wilmer, Cutler & Pickering, Washington, D.C.,
letter......................................................... 250
Wiley, Richard E., Wiley Rein & Fielding LLP, Washington, D.C.,
letter......................................................... 251
Women's rights, civil rights and other organizations, joint
letter......................................................... 252
Women's Sports Foundation, Dawn Riley, President, East Meadow,
New York, letter............................................... 257
NOMINATION OF THOMAS B. GRIFFITH, OF UTAH, TO BE CIRCUIT JUDGE FOR THE
DISTRICT OF COLUMBIA CIRCUIT
----------
TUESDAY, MARCH 8, 2005
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:38 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Arlen
Specter, Chairman of the Committee, presiding.
Present: Senators Specter, Hatch, Leahy, and Feingold.
Chairman Specter. Good morning, ladies and gentlemen. The
Judiciary Committee will now proceed on the nomination of
Thomas B. Griffith to be United States Circuit Judge for the
District of Columbia.
Senator Hatch, our distinguished former Chairman, has
commitments imminently, and we will hear from him first as he
makes the presentation of the witness and nominee. Senator
Hatch?
PRESENTATION OF THOMAS B. GRIFFITH, NOMINEE TO BE CIRCUIT JUDGE
FOR THE DISTRICT OF COLUMBIA CIRCUIT, BY HON. ORRIN G. HATCH, A
U.S. SENATOR FROM THE STATE OF UTAH
Senator Hatch. Well, thank you, Mr. Chairman. I appreciate
your courtesy to me, and, Senator Leahy, the Vice Chairman, I
appreciate both of you. I do have to leave for a few minutes to
make a presentation before one of the committees, but I will
come back for the remainder of the hearing.
Mr. Chairman and Senator Leahy, it is my pleasure to
introduce to the Committee Thomas B. Griffith, whom the
President has again nominated to the U.S. Court of Appeals for
the District of Columbia Circuit. Tom is a constituent of all
of ours, but certainly of mine, currently living in Utah,
though he was born and raised back here in the East.
Most members of the Committee should be familiar with Mr.
Griffith, both because he had a hearing in November but also
because he worked here in the Senate as legal counsel from 1995
to 1999. I think he will make a fine addition to the D.C.
Circuit, and as the chief legal officer of the U.S. Senate, Mr.
Griffith represented this institution, its committees, members,
officers, and employees on a vast array of legal matters,
including representing the Senate in litigation relating to our
constitutional powers and privileges. He advised the Senate
committees about their investigatory powers and procedures and
represented the Senate's institutional interests in the
impeachment trial of President Clinton, the line-item veto act
litigation, and in numerous Committee investigations. Mr.
Griffith's legal experience in the Senate has prepared him well
for the bench and has arguably better training for the
judiciary than many and perhaps most other categories of legal
experience. His work here required him to be nonpartisan in a
sometimes highly partisan environment, and by all accounts he
did a superb job. Mr. Griffith consistently exercised sound
judgment, objectivity, and fairness. I emphasize this because
these are qualities that are essential to service as a Federal
judge.
But do not just take my word for it. Prominent Republicans
and Democrats have said so as well. Mr. Griffith's former law
partner, Richard Wiley, of the firm Wiley, Rein & Fielding,
wrote that the nominee before us today is ``an outstanding
lawyer with keen judgment, congenial temperament, and
impeccable personal integrity.''
Seth Waxman, who we all admired, who served as Solicitor
General during the Clinton administration, said that he not
only has the ``highest regard'' for Mr. Griffith's integrity,
but that he would ``stake most everything on his word alone.
Litigants would be in good hands with a person of Tom
Griffith's character as their judge.''
Fred Fielding, White House counsel to President Reagan and
former Chairman of the American Bar Association's Standing
Committee on the Federal Judiciary, has described Mr. Griffith
as ``a very special individual and a man possessed of the
highest integrity. He is a fine professional who demands of
himself the very best of his intellect and energies.''
Again, on the Democratic side, President and Senator
Clinton's personal counsel David Kendall has this to say: ``The
Federal bench needs judges like Tom, an excellent lawyer who is
supported across the political spectrum.'' Mr. Kendall said Mr.
Griffith ``has the intellect and judgment to be an excellent
judge.'' I think we all get the point.
Mr. Griffith has been a dedicated public servant and has
demonstrated the sound judgment and temperament necessary to be
an outstanding Federal appellate judge. He stands in a
distinguished line of other members of the Senate family whom
the Senate has confirmed to various U.S. Courts of Appeals,
including Dennis Shedd, Sharon Prost, and Stephen Breyer, each
of whom served as chief counsel to this Committee.
Mr. Griffith's private law practice complements his public
service. After graduating summa cum laude from Brigham Young
University and earning his law degree from the University of
Virginia, Mr. Griffith practiced law with a private firm in
North Carolina. Following his service here, he became a partner
with the distinguished firm of Wiley, Rein & Fielding in
Washington, D.C. He now serves as general counsel for the
Brigham Young University, an international institution in Utah.
Ordinarily, a nominee with this combination of public and
private sector legal experience and personal character and
integrity would face a smooth confirmation process. As I
described to the Committee last November, there seemed to be
but two stumbling blocks, if you can even call them that.
First, a series of errors left his bar dues here in the
District of Columbia unpaid for a few years. He has taken
responsibility for this mistake. He does not recall the D.C.
Bar sending him an invoice nor do they recall sending it to him
for his dues at the end of his service as Senate legal counsel.
And then he assumed his law firm was paying his dues, as it did
for all the other lawyers. That was unfortunate. It was an
unfortunate combination of errors, but that is all they were--
errors. He certainly did not intentionally neglect to pay his
bar dues and indeed promptly paid the back dues when he
discovered the problem. The D.C. Bar administratively, I am
informed, suspends more than 3,000 lawyers each year for late
payment of dues, and they allow them up to 3 years to get those
dues paid.
Legal ethics experts and former ABA Presidents confirm that
such an administrative suspension is different than the
disciplinary suspension that results from a lawyer knowingly
refusing to pay dues. In the words of former White House
counsel and appeals court Judge Abner Mikva, ``this is a whole
lot of nothing.''
Second, some have asked whether Mr. Griffith was required
to take the Utah Bar exam in order to serve in his current
capacity as BYU general counsel. The simple and straightforward
answer is no, so long as when he gives advice or pursues
activities that can be called the ``practice of law'' he does
so in conjunction with a member of the Utah Bar. And he had
four members of the Utah Bar advising him on Utah issues.
The executive director of the Utah Bar wrote this Committee
last year to say that those who follow this advice ``are not
engaged in the unauthorized practice of law.'' To my knowledge,
no one has even suggested that he has done anything but
scrupulously met this standard.
That conclusion was reaffirmed to me in a letter from no
less than five former presidents of the Utah State Bar
Association. In addition, the ABA itself thoroughly examined
Mr. Griffith's record and concluded he is qualified to serve on
the Federal bench.
Mr. Chairman, I would like to place in the record a letter
from the Association of Corporate Counsel that notes, among
other matters, that ``General counsel and other in-house
counsel are often asked to serve their employers in a
jurisdiction where they are not admitted to practice, whether
such a practice is sanctioned by the local bar or not.''
James Jardine, a prominent Salt Lake City attorney who
served as Special Assistant to Attorney General Griffin Bell
during the Carter administration, has described Mr. Griffith as
``a skilled, thoughtful, experienced lawyer.'' One of Mr.
Jardine's comments struck me as particularly relevant to Mr.
Griffith's potential service on the bench. Mr. Jardine said,
``He is extraordinarily thoughtful. His intelligence is
tempered by his judgment.'' Now, that echoes our own colleague,
Senator Christopher Dodd, who said that Mr. Griffith served
here in the Senate ``with great competence and skill,
impressing all who knew him with his knowledge of the law, and
never succumbing to the temptation to bend the law to partisan
ends.'' To me, that speaks volumes about the very qualities
most important for judicial service.
The D.C. Circuit has had three vacancies for some time. The
position for which Tom Griffith has been nominated has been
open for more than 5 years. This important court needs this
good man to serve, and I hope the Senate will treat someone who
has served among us with all the respect and dispatch that he
deserves.
Now, Mr. Chairman, I have known Tom Griffith for a long,
long time. He is as fine a man as I know, and he has got
judgment, ability, strength of character, is a great family
man, and I think would be a great balancing force on the
Circuit Court of Appeals for the District of Columbia and would
work with Democrats and Republicans alike on that Committee to
see that justice is done in a way that it should be done. And I
just could not have a higher opinion of anybody that has come
before the Committee. So I hope the Committee will act
forthrightly and quickly on this nomination so that he can
begin the service that I think all of us will benefit from.
Thank you, Mr. Chairman, for allowing me to go forward.
Chairman Specter. Thank you very much, Senator Hatch.
Senator Bennett, we are going to spare you two opening
statements and permit you to join in the introduction of Mr.
Griffith to save you a little time, which I know you can use.
Senator Leahy. Even though I know, of course, both Senators
want to hear our opening statements, I absolutely concur with
the Chairman. I have been in the position that Senator Hatch
and Senator Bennett are, and you hear all the things, and I
think as--I absolutely agree with you. As a matter of courtesy
to two well-respected colleagues, we should allow them to go
forward.
Chairman Specter. Well, Pat, I am sure Senator Bennett will
read the record and check on what we said.
Senator Leahy. He can hardly wait.
[Laughter.]
Chairman Specter. Senator Bennett, the floor is yours.
Thank you very much for coming, Senator Hatch.
Senator Hatch. Thank you.
PRESENTATION OF THOMAS B. GRIFFITH, NOMINEE TO BE CIRCUIT JUDGE
FOR THE DISTRICT OF COLUMBIA CIRCUIT, BY HON. ROBERT F.
BENNETT, A U.S. SENATOR FROM THE STATE OF UTAH
Senator Bennett. Thank you very much, Mr. Chairman and
Senator Leahy. I appreciate your courtesy and your willingness
to listen to a non-lawyer on this subject.
My senior colleague has outlined in appropriate fashion the
history and legal background of Tom Griffith and the
qualifications that he brings to this particular nomination. I
want to simply take you back to an experience through which we
all went that is probably one of the truly historic moments in
the history of the United States Senate. For only the second
time in American history, we had an impeachment trial in the
Senate, and I remember the session that was held in the old
Senate chamber where the Senate got together without the
benefit of television cameras to discuss this situation. And
each side had its spokesman that talked about the situation in
which we found ourselves, and it was not a surprise that the
first spokesman on the Democratic side was Senator Byrd, who
has a position as the Senate historian, who talks about the
Senate as an institution about as well and thoroughly as
anybody can.
I remember very clearly Senator Byrd's comments about the
case that was before us. I cannot guarantee that these were his
exact words, and there was no record taken that I know of, so
we will have to depend on my memory. But he spoke of the
overall case as being toxic. And as I recall, he said it has
dishonored the Presidency, it has stained the House of
Representatives, and it is about to do the same thing to us;
that the case was sufficiently toxic that everyone who came in
contact with it was either dishonored or stained or otherwise
marked by it. And it was his prediction that the Senate could
not escape that stain.
When the case was wrapped up by the Senate, there was
almost universal agreement that the Senate had come through the
experience unstained and not dishonored, that the Senate had
handled it in a way that brought honor to the Senate and to its
leaders. And I remember the moment when Senator Daschle and
Senator Lott in the well of the Senate embraced and said, We
did it, we got through this very difficult case without
bringing dishonor to the institution. If anything, the
institution's stature was increased.
We all remember those days. They probably will show up in
our various memoirs as the time comes for us to write them. And
I go back to them because the man who stood at the juncture of
that case where both sides would meet and talk about the legal
problems was Tom Griffith. The man who helped advise both
Senator Lott and Senator Daschle, the man who was present on
both sides as difficult legal questions were asked, and who on
occasion helped to calm down some of the stronger partisan
impulses, was Tom Griffith. He has been tested by fire in a
crucible that is unique. For anyone living in American history,
no one else has had to go through that kind of pressure that
requires judicial temperament and understanding of the law the
way Tom Griffith did. And the way he handled that impressed
this non-lawyer in such a way that I recall that experience
here today before this Committee. I can think of no one who has
demonstrated judicial temperament under pressure better than
Tom Griffith has.
And so, like Senator Hatch, I am delighted to remind the
Committee that the President's lawyers in that difficult time,
David Kendall and Lanny Breuer, have both endorsed this
nomination. You would expect those of the current President's
party to be supportive of Tom Griffith, but it is significant
that those who were on the other side in that highly partisan
atmosphere have also endorsed Tom Griffith. And I hope the
Committee will keep that in mind as they make their decision.
He obviously has my absolute and total support, and I offer it
without qualification or apology. This is a man who has
demonstrated that he has the capacity to fulfill the
requirements of this job in a superb fashion.
Thank you.
Chairman Specter. Thank you very much, Senator Bennett. We
appreciate your comments.
STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE
OF PENNSYLVANIA
Chairman Specter. Mr. Griffith, if you will come forward,
we will now have opening statements by myself and, in sequence,
Senator Leahy.
We welcome you here, Mr. Griffith, for this nomination
hearing. I will be brief in my introduction because it has
already been covered in large measure. I am particularly
impressed by your being summa cum laude in your undergraduate
days at Brigham Young University and being on the Law Review. I
think academic achievement is very, very important. The record
is already replete with your professional qualifications.
Senator Bennett has given very substantial detail as to
your contribution in the impeachment trial, and I think that
was a very, very important public service. You were intimately
involved in the litigation on the line-item veto, and you have
been involved on Committee investigations, and you have a long
list of sponsors who have come forward to speak on your behalf,
which shows the nonpartisan flavor: Seth Waxman, a prominent
Democrat; Glen Ivey, former counsel to Senator Daschle as
Leader; David Kendall, personal counsel to the President; and
many, many others. Perhaps a key accolade was paid to you by
Senator Dodd when you got a bipartisan resolution of
commendation when Senator Dodd said, ``During his tenure as
legal counsel, Tom exemplified this philosophy, impressing all
who knew him with his knowledge of the law, and never
succumbing to the temptation to bend the law to partisan
ends.'' And that is quite a tribute coming from Senator Dodd.
There have been some issues which have been raised which
the Committee will look into: the issue of late payment of
dues, and I think that there are extenuating circumstances, as
I have gone through the details of the record, but we will get
into those details where your dues had been paid by your law
firm and you expected them to continue to be paid; on one
occasion, you were not notified of the dues, which was
confirmed by the D.C. Bar Association; and an issue of Utah Bar
membership, none of which goes to the essential qualifications
of character or integrity or judicial temperament.
I have maintained my membership in the New Jersey Bar,
awaiting the return to private practice of law, and I worry
every year I am going to miss the date. Sometimes I do.
Senator Leahy. Don't we all. Not that you will return, but
that we will all return.
Chairman Specter. We have many, many things on our minds,
and if you miss a date, it is not good, but it is not the end
of the world. It does not involve character or integrity or
judicial temperament, the hallmarks of a judge. And the
confirmation process, which I have seen now for many, many
years, has accommodated people who have made mistakes
substantially more important, more serious than what we are
dealing with here.
There is a question about your interpretation of Title IX,
and I do believe that there is a solid legal basis for what
your interpretation has been on substantial proportionality
based on the statute. And we will deal with that in the course
of the hearing.
Now I am delighted to yield to my distinguished Ranking
Member, Senator Leahy.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Senator Leahy. Thank you, Mr. Chairman. Like you, I do also
maintain my bar dues, both in Vermont and in the District of
Columbia.
When we last met as a Committee for a hearing on the
nomination of Thomas Griffith to the D.C. Circuit, it was a
somewhat unusual hearing during a very, very brief post-
election lame duck session of Congress, an unusual hearing of a
controversial nominee to the second highest court in the
country. I say unusual because we had a number of President
Bush's nominees pending, relatively noncontroversial nominees,
and had we show as much attention, we could have very easily
put them through and confirmed these nominees of President
Bush's. And I had urged the White House and the then Republican
leadership in the Senate, but there seemed to be very, very
little interest from either the White House or the Republican
leadership for that kind of progress. It seemed almost that
what the White House wanted to do is seek unnecessary
confrontation over judicial nominees.
Now, 4 years ago, we had a situation where Senate
Republicans had abused their power. They stopped more than 60
moderate and qualified judicial nominations of President
Clinton's from being considered and confirmed. I find it
interesting when I hear Judge Mikva, Abner Mikva, and Seth
Waxman all being quoted here, and this is a reason to go
forward. As I recall, when they were making similar suggestions
to a number of nominees of President Clinton's, I don't recall
my friends on the other side of the aisle quoting them. In
fact, these nominees of President Clinton's, 61 of them, were
subjected to, in effect, what has been called a ``pocket
filibuster.'' Sixty-one of them were filibustered in that sense
by not being allowed to go forward.
But, nonetheless, I had a chance to become Chairman for 17
months, and I urged the White House and Senate Republicans to
work with all Senators to fill judicial vacancies, including
some where the vacancy existed for year after year after year
after year, because one or two Republican Senators would object
to one of President Clinton's--or 61 of President Clinton's
nominees and would not allow them to even have a vote.
I said I really want to change this, and I pressed forward
to put the Senate in position to confirm 100 of President
Bush's lifetime appointments to Federal courts. We did this in
17 months. It is actually a speed record. I don't know if
either Republicans or Democrats have ever moved that fast on
100. I thought we might hear something nice about it; instead
we got vilification and personal attacks.
One I still remember with some wry amusement, the White
House-sponsored person went on a Sunday program saying we are
not moving fast enough and it is because I was anti-Catholic.
My press secretary, when asked about it, said, ``Well, the
Senator was at Mass during that program and did not hear the
comment,'' although the attack was continued by at least one
senior member of this Committee, that senior member not Senator
Specter, who was very happy to see all these judges of
President Bush's going through.
But I worry about is that during those 4 years the Senate
Republican leadership abandoned its responsibilities to the
Senate in this regard. They chose instead to be not an
independent Senate but act like a wholly owned subsidiary of
the White House in their effort to turn the Federal judiciary
into an arm of a particular ideological wing of the Republican
Party. I believe in an independent judiciary. I don't want it
to be a wing of the Democratic Party or the Republican Party. I
want it to be independent. But over the last 2 years, they have
bent, broke, or ignored our traditional rules governing
Committee consideration of judicial nominees. They are now
talking about the so-called nuclear option to destroy the one
Senate rule left that allows the minority any protection, in
the several times I have been in the majority something I have
strongly supported to protect the then Republican minority. If
you change the rules to remove this, something that has allowed
the Senate from the time of the beginning of this country to
serve as a check on a powerful Executive--and I might note, for
those who seem not to realize, that almost every President has
had judges that they propose that have not gone forward. George
Washington, beginning with George Washington, he had judges he
proposed, and the Senate said no and that was it.
But I say if you want to change this, you destroy the
Senate. You undermine the independence and the fairness of the
Federal judiciary, but you also roll back the checks and
balances--checks and balances that all Americans rely on.
Just last week, the new Senator from Colorado sent a letter
to the President urging that we join in common cause on these
matters. I mention this because he has voted for every single
one President Bush's nominees. He suggested the President make
a show of good faith by ratcheting down the conflict by
withdrawing divisive judicial nominations on which the Senate
has previously withheld its consent. It was a sensible
suggestion that was rejected out of hand by the White House
which seeks absolute authority and expects the Republican
majority in the Senate to go in lockstep because they say so.
It does undermine the checks and balances that have served us
well for over 200 years.
Now, unlike the many anonymous Republican holds and pocket
filibusters that kept those 60 of President Clinton's qualified
judicial nominees from moving forward, the concerns about Mr.
Griffith are no secret. Mr. Griffith knows full well my concern
that he has not honored the rule of law by practicing law in
Utah for 5 years--I am not even going to go into the years in
the District of Columbia where he practiced law without a
license. I am talking about practicing law in Utah for 5 years
without ever bothering to fulfill his obligation to become a
member of the Utah Bar. I would assume the nominee has by now
obtained a Utah driver's license and that he pays Utah State
taxes. But even though he has been practicing law there since
the year 2000, he is not a member of the bar.
I will be interested to learn what steps Mr. Griffith took
since our last hearing to take the Utah Bar examination
recently held in February or to apply for the Utah Bar
examination which I understand is scheduled for this summer. By
one count, he has so far foregone ten opportunities to take the
Utah Bar exam while applying for and maintaining his position
as general counsel at Brigham Young University. This conscious
and continuous disregard of basic legal obligations is not
consistent with the respect for law we should demand of
lifetime appointments to the Federal courts. He should have
taken the bar. He should be a member of the Utah Bar.
Practicing law without a license or, as the bar calls it,
the unauthorized practice of law is not a technicality like
forgetting to pay your bar dues. In fact, in some States it is
a crime. In Texas, for example, it is a third-degree felony. It
is a serious dereliction of a lawyer's duty.
Now, it is a commonplace of American jurisprudence that no
one is above the law. If the American people are to have
confidence in our system of laws, that has to include the
lawyers, and certainly without any question it has to include
the judges. So I am hoping we are going to have better and more
coherent and more forthright answers from Mr. Griffith about
the problems with his bar membership, and I am sure he knows
that those are questions he will be asked. I would expect those
answers to start with a commitment to do what is now long
overdue, namely, to take the Utah Bar exam and become properly
licensed to practice law in Utah, where he has been practicing
for the last 5 years.
This hearing marks the third hearing on the President's
controversial circuit court nominations in barely more than a
week. Chairman Specter is affording some of these nominees,
including Mr. Griffith, another opportunity to provide the
Committee and the Senate with additional information and
assurance that they have earned and merit the consent of the
Senate to their lifetime appointment as a custodian of the
rights of all Americans. I applaud the Chairman for that and I
thank him for following the proper order of this Committee. But
I must say that the lack of taking the bar exam is a matter of
concern to me. I know that even to our State courts in Vermont,
such a nomination would be rejected out of hand for doing that.
But we have very high standards in our State.
Mr. Chairman, I would ask consent to put my full statement
in the record and also a number of letters and editorials.
Chairman Specter. Without objection, they will be made part
of the record.
Senator Leahy. Thank you.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Chairman Specter. Would you stand to take the oath? Do you
swear that the testimony you will give before the Senate
Judiciary Committee will be the truth, the whole truth and
nothing but the truth, so help you God?
Mr. Griffith. I do.
Chairman Specter. Do you have family with you today?
Mr. Griffith. I do not, Senator. My wife and three of my
children are living in Utah. My wife is attending university,
and my children are still in school. Some of them were able to
come for my last hearing but not able to this time.
Chairman Specter. In the absence of family, we welcome you
to the Committee.
Mr. Griffith. Thank you.
Chairman Specter. Would you care to make an opening
statement?
STATEMENT OF THOMAS B. GRIFFITH, NOMINEE TO BE CIRCUIT JUDGE
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Mr. Griffith. I'll just be brief. I want to thank you, Mr.
Chairman, for holding this hearing, and thank you, Senator
Leahy, for coming.
I want to thank the President of the United States who
honors me with this nomination, and thank Senators Hatch and
Bennett for the kind and generous comments they made.
And I would also like to take this opportunity to say what
a wonderful experience it is to be back here in the Senate
where I have such wonderful memories of having served with all
of you and your colleagues. I'm pleased to be here, anxious and
willing to answer any questions that you might have of me.
[The biographical information of Mr. Griffith follows:]
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Chairman Specter. Mr. Griffith, why would you like to be a
Federal judge? What is your interest in this public service?
Mr. Griffith. Well, I'd start with the comment you just
made, it's public service. I, as do all of you, love our
country, love our Nation, and am anxious and desirous to be of
service where I can be. As I mentioned, I'm honored that the
President nominated me. I would like to be able to use the life
experience I have, the legal training that I have to be of help
to the Nation in this way in being in the Federal Judiciary.
Chairman Specter. Give us your essentials of your legal
background which you think qualifies you for the high position
of Circuit Court Judge?
Mr. Griffith. I've been a practicing lawyer since 1985 in a
variety of contexts. I began my legal career, as was mentioned
earlier, at a law firm in Charlotte, North Carolina, where I
was extensively involved first in transactional work and then
later in litigation experience.
I came to Washington, D.C., which is my home, in 1989 and
became associated with a prominent law firm in Washington,
D.C., Wiley, Rein and Fielding. My practice there was primarily
in litigation, litigation involving complex transactions,
complex commercial disputes in a regulatory environment. I was
made a partner at that law firm, and then in 1995 was chosen by
the United States Senate to be its Senate legal counsel.
In that capacity, as Senate legal counsel, I represented,
along with the other--I was the head of the office. There were
other marvelous lawyers in the office, and I succeeded one of
the finest lawyers I've ever met, Michael Davidson.
Chairman Specter. Never mind, Mr. Davidson, let's talk
about you.
Mr. Griffith. Okay.
Chairman Specter. Has there ever been a challenge to your
character or integrity?
Mr. Griffith. There has not, Senator.
Chairman Specter. How about your judicial temperament? We
heard lofty praise from Senator Hatch, who has great
credibility with this Committee, about your judicial
temperament during the impeachment proceedings. I remember
those very well. Could you give us a specific illustration as
to how you brought the parties together, because it was not all
sweetness and light.
Mr. Griffith. It wasn't, and I need to be delicate here.
Many of the things in which I was involved involved the
attorney client privilege. But having said that, to me the
greatest challenge of the impeachment proceeding, and also it's
great opportunity, was that you had all of the branches of
Government represented with very different interests, and--
Chairman Specter. Would you say there was a lapse in your
work as legal counsel when you failed to give me advice not to
cite Scottish law?
[Laughter.]
Mr. Griffith. If you say it was a lapse.
Chairman Specter. I withdraw that question, Mr. Griffith.
[Laughter.]
Mr. Griffith. Thank you, thank you. I actually remember the
conversation well, but if you want to waive the privilege.
Chairman Specter. Mr. Griffith, onto your District of
Columbia bar dues. What is that all about?
Mr. Griffith. Well, I made a mistake, and I want to make it
clear that it was my mistake and no one else's mistake. The
mistake I made was that in the first instance I relied on the
D.C. Bar to send me notices of when my bar dues were paid. I
shouldn't have done that.
Chairman Specter. Did you fail to pay those dues willfully?
Mr. Griffith. No, not at all.
Chairman Specter. Try to save all that money, Mr. Griffith?
Mr. Griffith. No, I did not. I was unaware that my bar
membership had been administratively suspended for failure to
pay dues.
Chairman Specter. How about your Utah Bar membership? The
record has references to your close association with other
members of the bar. What happened exactly with respect to that
issue?
Mr. Griffith. Senator, thank you. I'd be happy to try and
clarify your understanding of that. It is the practice of the
Utah Bar Association, as is set forth in letters that this
Committee has received, that in-house counsel in Utah need not
be licensed in Utah provided they are closely associated with
active members of the Utah Bar and make no court appearances.
That's precisely how I have governed my dealings at the
university since I arrived in August 2000. There are now five
attorneys in the office. The other four attorneys are active
members of the Utah Bar. And I have been very careful since I
arrived there not to participate in giving any legal advice or
the practice of law in any form or fashion unless I am involved
with one of these attorneys.
Now, I didn't do that simply because that's the requirement
of the Utah Bar. I also did that because that's the way I
practice law. My client, the university, will always be better
served if my opinion represents a collaborative effort with
other lawyers, and in our office we do that all the time.
Everyone's door is open. We're in and out of each other's
office. We collaborate a great deal.
So there's no legal advice. There's no activity in which
I've been engaged in the practice of law since I've arrived at
the university that has not involved other lawyers. Again, I
did that because that's the best practice, and also be it's
consistent with the Utah Bar's approach to how in-house counsel
should conduct their affairs.
Chairman Specter. Senator Leahy.
Senator Leahy. Let us go back to this. My opening
statement, which you heard, I just want to make sure I was
correct in some things I said I there. Now, since moving to
Utah 5 years ago, the summer of 2000, have you gotten a Utah
driver's license?
Mr. Griffith. Yes, sir, I do.
Senator Leahy. Do you pay Utah State taxes?
Mr. Griffith. I do.
Senator Leahy. Now, in your answers to our written
questions, you state plainly you practiced law in Utah since
the beginning of your responsibility at BYU in 2000. And now
you have admitted in the Utah law there is no general counsel
or in-house counsel exception to the Utah law that says one has
to be licensed in Utah to practice law in Utah. You further
agree there is no exception in law for those who closely
associate themselves with Utah licensed lawyers. I have looked
at the law. I have looked at the regs. I have looked at Supreme
Court decisions. I find no general counsel, no in-house
counsel, no closely associate kind of exception.
The question I have is this: since you accepted the job at
BYU there have been 10 opportunities, including just last
month, to take Utah Bar. Have you taken it?
Mr. Griffith. I have not, Senator.
Senator Leahy. The deadline for submitting an application
for next July's administration of the Utah Bar was a week ago
last Tuesday, March 1st. Did you submit an application?
Mr. Griffith. No, sir.
Senator Leahy. There is time to get a late application by
next Tuesday, the 15th. Are you going to send in an
application?
Mr. Griffith. I'm not planning on doing that, Senator.
Senator Leahy. How about April 1st? That is the absolute
last date you can do for July?
Mr. Griffith. I'm not planning on taking the Utah Bar in
July.
Senator Leahy. Let me make sure I understand. You practice
law in Utah, you are a general counsel. Utah law, as written by
the Utah State Legislature, interpreted by the Utah Supreme
Court, not some letters from some past bar association person,
but the Utah law written by the Utah State legislature and
interpreted by the Utah Supreme Court, says you have to be a
member of the Utah Bar if you practice law in Utah. There are
no exceptions. To be a member of the Utah Bar you have to take
the examination. You have not taken it, you have no plans to
take it. Are you saying that even though there is no statutory
case law, somehow somebody is empowered to create an exception
to permit you to practice law in Utah indefinitely without ever
being licensed in Utah? It is kind of an interesting exception.
Mr. Griffith. Thank you for giving me the opportunity to
clarify my understanding of this, Senator Leahy. It's my
understanding that it has been the consistent practice of the
Utah Bar for years now to treat in-house counsel in a way that
in-house counsel is not required to be licensed in Utah
provided they are closely associated with Utah lawyers and they
make no court appearances. That was my--
Senator Leahy. Did you find anything in the statute or case
law that says that?
Mr. Griffith. No. This is the interpretation of the Utah
Bar of the statutes--
Senator Leahy. Find anything in the statute yourself or the
case law that says that?
Mr. Griffith. I'm not aware of--
Senator Leahy. Because we cannot find anything. Do you know
people that practicing law that way in Utah?
Mr. Griffith. I am told that it is very common practice in
Utah--
Senator Leahy. Do you know any of these people?
Mr. Griffith.--that in-house counsel--I know of some, and
I've heard of others. I have not take--
Senator Leahy. But you do not find anything in the statute
or the case law that says you can do that?
Mr. Griffith. No. I know of nothing in the statute that
allows that.
Senator Leahy. That is kind of a activist interpretation,
is it not? Or--
Mr. Griffith. May I respond?
Senator Leahy. I mean I just like to say, see some of the
activist judges, judicial nominees come up.
Mr. Griffith. I'm relying on the view of the Utah Bar about
the rules that govern the practice of law in Utah.
Senator Leahy. I think I would rely on the statute and the
case law.
You know, throughout our history we have had judges who
stood up to proper sentiment, and they protected minorities or
people whose views made them outcasts, pariahs. Have you ever
had an instance in your professional career where you took an
unpopular stand or represented an unpopular client and stood by
them under pressure?
Mr. Griffith. Yes, sir, a number of occasions.
Senator Leahy. Tell me, please.
Mr. Griffith. One that I believe is referred to in the
Senate Judiciary Committee questionnaire was while an associate
at Wiley, Rein and Fielding in Washington, D.C., I along with
several other of the associates took on an American Bar
Association pro bono death penalty project. We represented an
inmate in the Virginia Correctional system who had been accused
of committing murder while he was in the prison system. My
firm--and I was one of the lawyers who took an active role in
his representation through the habeas proceedings. My role
after the hearing changed in that I was in charge of what we
referred to as the pardon strategy for this death row inmate.
We fortunately saw that strategy through to a successful
conclusion, as the Governor of the State of Virginia commuted
his sentence. That's one example.
When I was in North Carolina I was involved in pro bono
projects with the local bar association there, representing
disadvantaged students who had been suspended from their high
schools and were entitled to representation in the due process
hearings. So those are a couple of examples.
Senator Leahy. I appreciate it.
Mr. Chairman, my time is up. I just want to put in the
record the name of university general counsel, the general
counsel--
Chairman Specter. Chairman Leahy, take whatever additional
time you would like.
Senator Leahy. I appreciate the courtesy of the Chairman,
but I want to put in the record John Morris, who is the General
Counsel at University of Utah; Craig Simpler, University
Counsel for Utah State University; Kelly DeHill, the General
Counsel at Westminster College; and Mr. Griffith's predecessor,
Eugene Bremhall, who was General Counsel for 20 years at BYU. I
just put those names in the record because they were all
members of the Utah Bar.
Chairman Specter. Thank you very much, Senator Leahy.
Senator Hatch.
Senator Hatch. Mr. Griffith, as you know, statute
interpretations vary according to the statute; is that correct?
Mr. Griffith. That's correct.
Senator Hatch. I might interpret a statute differently from
you; is that right?
Mr. Griffith. I'm certain you would.
Senator Hatch. One member of the bar might interpret a
statute differently from other members of the bar; is that
correct?
Mr. Griffith. That's correct.
Senator Hatch. Matter of fact, as I understand it, five
presidents of the bar said that you did not practice law in an
unauthorized fashion in the State of utah.
Mr. Griffith. That's my understanding. I've seen that
letter.
Senator Hatch. I have too, a number of whom were Democrats.
I might add that is Brigham Young University purely a Utah
institution?
Mr. Griffith. No. Brigham Young University is among the
largest private universities in the Nation. I believe it's the
largest private religious university in the Nation. We have
campuses throughout the world, quite literally. We have a
presence in Israel. We have a presence in England. We have
presence in many of the United States. Washington, D.C. we have
a campus; in Illinois we have a campus. Until last year we had
a campus in Hawaii that reported directly to the campus where
I'm located in Provo. And then we have students--we have one of
the largest international travel study programs in the world,
so on any given day, we have students quite literally all over
the world. So it's a very large international presence.
Senator Hatch. I take you did not go and take the bar
examinations in any of those areas either?
Mr. Griffith. I did not.
Senator Hatch. In other words, BYU is an international
institution, as well as an institution within the State of
Utah?
Mr. Griffith. That's correct, Senator.
Senator Hatch. The bulk of its students are in the State of
Utah?
Mr. Griffith. Yes. The campus in Provo has about 30,000
students.
Senator Hatch. But there are thousands of others outside of
Utah?
Mr. Griffith. That's correct.
Senator Hatch. And approximately half of the students in
Utah come from other States; is that correct?
Mr. Griffith. I believe that's right. I haven't seen those
numbers lately, but our student body comes from all 50 States
and around the world.
Senator Hatch. When you said you practiced law in Utah,
what did you mean by that?
Mr. Griffith. Well, the title of my position is Assistant
to the President and General Counsel, and as General Counsel I
supervise an office of four other attorneys, and we represent--
Senator Hatch. And what bar do they belong to?
Mr. Griffith. They belong to the Utah Bar.
Senator Hatch. In other words, all four of those attorneys
belong to the Utah bar?
Mr. Griffith. That's correct.
Senator Hatch. Did you ever make a decision that really
affected purely Utah law without the advice and help of those
four attorneys?
Mr. Griffith. No, sir, I've never done that.
Senator Hatch. Did you ever try to practice in Utah without
the advice or help of those attorneys or even with their advice
or help?
Mr. Griffith. No. I've always included them in
collaborative analysis.
Senator Hatch. Whenever a Utah issue came up, did you try
and handle it personally or did you have the Utah lawyers have
it?
Mr. Griffith. Had the Utah lawyers handle it. Very little
of what I do on a day-in and day-out basis involves Utah law.
Senator Hatch. Then it is true that your job is to
basically function as an overall wise lawyer to give advice to
the president of the university.
Mr. Griffith. That's part of my responsibility. My
responsibility is also broader than that. Most of what I do is
lawyering, but a good deal of what I do is act as a university
administrator in a number of capacities.
Senator Hatch. Were you born and raised in Utah?
Mr. Griffith. Excuse me?
Senator Hatch. Were you born and raised in Utah?
Mr. Griffith. No. I was born in Yokohama Japan, and was
raised in McLean, Virginia.
Senator Hatch. Have you ever been in Utah other than the
time that you have been there at the Brigham Young University?
Mr. Griffith. When I was studying there as an
undergraduate, but even then I was a resident of Virginia, but
I've become a resident of Utah since August of 2000.
Senator Hatch. Did you intend to stay there the rest of
your life at the Brigham Young University, assuming that you
had not been asked to be a Federal judge?
Mr. Griffith. You know, Senator, I hadn't thought that far
ahead. My life has been done in about four- or 5-year
increments. If I were, there's no question that I--as I've
stated in my written, answers to the written questions, that I
intend to become a member of the Utah Bar if I stay in Utah.
Senator Hatch. As I understand it, you did not expect to
become a member of the Utah Bar because you did not expect that
your whole lifetime would be spent in Utah.
Mr. Griffith. Yeah. Well, the primary reason I haven't
become a Utah Bar is I don't need to become a member of the
Utah to practice--to carry out my responsibilities at the
university. Were I to stay in Utah I would be interested in
joining the Utah Bar. I believe in bar associations. I believe
in the good that they can do, and I would like to participate
and be helpful in that way. But that's a different question of
whether it's necessary to do so to carry out my
responsibilities at the university.
Senator Hatch. Mr. Chairman, my time is up, but let me just
read from the letter of the five members of the Utah Bar. I
will just read part of it. ``While there is no formal `general
counsel' exception to the requirement that Utah lawyers must be
members of the Utah bar, it has been our experience that a
general counsel working in the State of Utah need not be a
member of the Utah bar provided that when giving legal advice
to his or her employer that he or she does so in conjunction
with an associated attorney who is an active member of the Utah
bar and that said general counsel makes no Utah court
appearances and signs no Utah pleadings, motions or briefs.''
You are familiar with that?
Mr. Griffith. I am, Senator.
Senator Hatch. And you never did any of those things?
Mr. Griffith. That describes precisely how I've organized
my affairs since arriving in Utah in August of 2000.
Senator Hatch. Thank you, Mr. Chairman.
Chairman Specter. Thank you very much, Senator Hatch.
Senator Feingold.
Senator Feingold. Thank you, Mr. Chairman.
Senator Leahy. Is that the same letter where they say they
do not opine whether he lives up to the standard?
Senator Hatch. Well, I do not think they could, because
they did not follow every movement. But the fact is that the
five bar association members have been astounded that anybody
would raise this.
Senator Leahy. You do not have to be defensive. I am just
asking.
Senator Hatch. I am defensive about it.
Senator Leahy. Can we put the letter in the record, Mr.
Chairman?
Senator Hatch. I will. I will put it in the record.
Chairman Specter. And still it is Senator Feingold.
Senator Feingold. Thank you, Mr. Chairman.
Mr. Griffith, welcome to the Committee.
Mr. Griffith. Thank you, Senator.
Senator Feingold. Your nomination to the D.C. Circuit has
been and remains quite controversial. Perhaps most
significantly it appears that you failed to follow the rules of
two different bar organizations. Unfortunately, the timing of
your hearing last fall left many member, including myself,
without a meaningful opportunity to question you. And instead I
provided you with a number of written questions, and I was
hoping to have a chance now to clarify several of your
responses concerning this same issue, the practice of law in
Utah without a law license.
As has become clear through this nomination process, you
have not been a member of the Utah Bar since you became general
counsel at BYU in 2000. However, you received strongly-worded
guidance from the general counsel of the Utah State Bar
directing you to take the Utah Bar examination. In a May 14th,
2003 letter, Katherine Fox, general counsel, Utah State Bar,
told you that Utah does not and has never had a ``general
counsel'' exception to its licensing requirements. She wrote
that it was both ``unfortunate'' that you had delayed taking
the Utah Bar and suggested steps you could take to act as
general counsel until you took the Utah Bar exam. The letter
stated, ``Towards that end it would be a prudent course of
action to limit your work to those activities which would not
constitute the practice of law.'' She continued, ``If such
activities are unavoidable, I strongly urge you to closely
associate with someone who is actually licensed here and on
active status.'' Finally she ended her letter by warning you
that applicants have been denied admission to the bar for
issues regarding the unauthorized practice of law.
In light of Ms. Fox's letter, I was surprised to learn that
you took no steps whatsoever to document you complied with her
advice. Would you explain to this Committee why you took no
steps to document your work in a manner that would allow you to
explain to the Utah bar that your arrangements did not
constitute practicing law without a license?
Mr. Griffith. Thank you, Senator. I believe the answer that
I gave to that, that I took no steps to document it because the
end of the answer is every person in my office and every person
that I deal with at the university knows how I do things, and I
do things in close collaboration with other attorneys. Any of
the lawyers in my office can attest to that.
I believe another related question was what do you do to
make certain you can comply with that? And I think I've
answered that, at least in part. The other is I collaborate
with my colleagues in my office. There isn't a single legal
matter on which I have been involved since I've arrived at the
university that has not involved a collaborative effort with
one of the other members of the Utah bar.
Senator Feingold. It would be my thought if a letter like
that came in that documentation would be a good idea. But let
me turn to this. In response to my written questions, you wrote
that you did not recall telling any outside counsel you worked
with during your tenure at BYU that you were not a member of
the Utah bar. However, the Utah code states that you may not
practice law or assume to act or represent yourself as a person
qualified to practice law within the State if you are not
licensed to practice within the State. Did you ever inform
outside counsel for BYU, opposing counsel or employees that you
advised that you were not admitted to practice law in Utah and
that you could do only legal work in a very limited--you could
only do legal work in a very limited manner?
Mr. Griffith. I don't recall whether I had discussions with
our outside counsel. They're certainly aware of it now. But all
of the lawyers in my office were aware of it, the president of
the university was aware of it. At the time the university
posted its notice of a job vacancy as general counsel, the
conscious decision was made that the general counsel need not
be a member of the Utah bar. The president of the university
was well aware of that. He and I, both presidents under whom
I've served, have discussed this. I make those who I work with
at the university aware of that. And the way I practice law is
to always be involved with another member of the office.
Senator Feingold. I hear your answer with regard to the
university and the general information, but my question was did
you ever inform outside counsel for BYU, opposing counsel or
employees that you were not admitted to practice law in Utah,
and I take your answer as no, because you do not recall any
example of--
Mr. Griffith. I don't recall having a specific discussion
with outside counsel, but I do know that all of the outside
counsel that I listed in the answer is aware of that. They know
that.
Now, with regard to--you also asked about opposing counsel.
I don't recall any instance where I told opposing counsel that.
Now, the nature of my practice is very rarely am I involved
with opposing counsel. My responsibilities are largely advising
the university president we have lawyers in our office who take
the laboring oar on transactional work with those outside the
university and with litigation matters. And to be sure I
supervise them, and on occasion I have dealt with opposing
counsel, but that's not something that happens with great
frequency.
Senator Feingold. Thank you. I seem my time is up, but it
is very clear from the answer that I asked repeatedly did the
nominee ever inform--
Chairman Specter. Senator Feingold, if you need some more
time, go ahead.
Senator Feingold. I just want to comment quickly. That did
the nominee ever inform anyone of the fact that he was not
admitted to the bar, his response has consistently been they
somehow knew. That was not the question, and that is not the
obligation in my view based on his status as a person not
admitted to the Utah bar.
Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Feingold.
Senator Leahy has advised that he may submit some questions
for the record.
Senator Leahy. I will submit mine for the record.
Chairman Specter. Anybody else have any questions?
Senator Hatch. Could I just add this little bit to this? I
think it is important. The ABA has reviewed all of this and has
rated you qualified. Monroe Friedman, who is considered a
recognized expert on legal ethics, has expressed his opinion
that your actions were appropriate under the circumstances.
Among other things Professor Friedman noted that, ``In Utah Mr.
Griffith's bar status was known to Brigham Young University,
the only client for whom he did work as a lawyer. His legal
work there was always in association with one or more members
of the Utah bar, and he has never appeared in court.'' So he
found that.
And then finally, let me just close, Mr. Chairman, with a
letter which I will put in the record from Abner J. Mikva, who
of course is one of our former colleagues in the House of
Representatives, and who was on this very Circuit Court of
Appeals. I will just read part of it. ``Tom Griffith will be a
very good judge. I have worked with him indirectly while he was
counsel to the Senate and more directly as a major supporter of
CEELI, the Central and Eastern European Law Initiative of the
American Bar Association. Tom was an active member of CEELI's
advisory board, and he and I participated in many prospects and
missions on behalf of CEELI. I have always found Tom to be
diligent, thoughtful and of the greatest integrity. I think
that the bar admission problems that have been raised about him
do not reflect on his integrity. Rather, they appear to be
understandable mistakes and negligence which cannot be raised
to the level of ethical behavior. Tom has a good temperament
for the bench, is moderate in his views and worthy of
confirmation.'' So I just put that in the record.
And just one last question. During your whole time at
Brigham Young University you always had the advice of those
four Utah lawyers on every Utah issue?
Mr. Griffith. Not just on every--yes, on every Utah issue
and on every legal issue that I was involved with.
Senator Hatch. Thank you, Mr. Chairman. That is all I have.
Senator Leahy. Mr. Chairman, if I might, and I am sure this
was simply an oversight on the part of Senator Hatch when he
spoke of the bar association finding of qualified. Actually,
they did not all find you qualified. Some found you not
qualified. Why do you think that some in the bar association,
the ABA, when they made the listing on you, why do you think
there were some who found you not qualified? Do you think it is
because you were not a member of the bar, or do you think they
had another reason?
Mr. Griffith. Senator Leahy, I have no idea. All I know is
the letter that was sent to the Committee finding that a
majority found me qualified. I don't know the reason for it.
Senator Leahy. I understand, and the majority did, minority
found you not qualified. Did they give--in their questioning of
you did you get any indication that the not-qualified--because
you have had quite a background as a lawyer. Did you get the
indication that the not qualified referred to your failure to
be a member of the bar or they had some other reason?
Mr. Griffith. Senator, I don't know the reason for it.
Senator Leahy. The other four lawyers in your office, were
they required to be members of the Utah bar? I know they are
members of the Utah bar. By your interpretation are they
required to be members of the Utah bar?
Mr. Griffith. They would not need to be. We'd need to have
some who are, but as in-house counsel in Utah, they would not
need to be members of the Utah bar provided they were closely
associated with some who were.
Senator Leahy. There are five of you there. Are you saying
all five could be non-members of the Utah bar provided--
Mr. Griffith. Oh, no.
Senator Leahy. Provided when they actually did something,
somebody who was a member of the Utah bar walked in and gave
their imprimatur to it?
Mr. Griffith. No. No, I'm sorry if I gave that impression.
I didn't mean to give that impression. With the five lawyers in
our office, it's my understanding of the interpretation of the
Utah bar that provided that they are closely associated with
members of the Utah bar--and the way I understand that would be
that we have Utah lawyers in our office working on all those
matters.
Senator Leahy. How many of the five then would have to be?
Mr. Griffith. You know, I haven't thought about that,
Senator.
Senator Leahy. Why do you not think about it and let us
know?
Mr. Griffith. Okay, I will.
Senator Leahy. Thank you.
Senator Hatch. Mr. Chairman, if I could just add one thing.
I am a member of the Utah bar. I do know that the five
presidents were right, and you had advice. And I do know the
integrity of Tom Griffith, and I personally resent anybody who
takes your integrity and smashes it or tries to. So all I want
to say is that you have stated it correctly. Abner Mikva stated
it correctly. Monroe Friedman stated it correctly. And frankly,
BYU is an international institution, and there was no requisite
for you to have to take the bars in all the States in which it
does business, nor would there be of any corporate general
counsel. And Utah is not so far behind that the corporate
general counsel will have to take the bar in Utah. It is
strictly up to the individual.
And so I just hope everybody will take all that into
consideration and allow this good man to serve because I know
he will be a very good judge on that particular bench. With
that I will close.
Chairman Specter. We will keep the record open for one
week. It will close 6:00 o'clock on Tuesday, March 15th.
Just one final note, Mr. Griffith, with some risk on
prolonging this. I note that you participated in a successful
effort to save a Virginia death row inmate who was serving a
life sentence for a 1981 murder of a woman in suburban D.C.,
and sentenced to death for the 1985 murder of a fellow inmate.
That is a little different dimension to your professional
background generally. How did you happen to undertake that kind
of a case?
Mr. Griffith. I was an associate at my law firm, and I
believe strongly in the need for lawyers to be involved in pro
bono projects, and so I was quite interested in that one. I
believe strongly that lawyers have a duty and an obligation
because we have been so blessed and we're so fortunate in this
country, that lawyers have a duty and an obligation to help out
those who are far less advantaged, to those who have been left
out and left behind. And so when the project came along, I
expressed great interest in it, and then particularly when I
got into the facts of it and was convinced that here was a man
who had been unjustly accused of what he was doing, it moved
beyond duty there--
Chairman Specter. Unjustly accused, you thought he was
innocent?
Mr. Griffith. I believe he was actually innocent.
Senator Leahy. Mr. Chairman, one of the reasons I asked Mr.
Griffith about his pro bono work, he does have an impressive
background in that. I totally agree with him that lawyers
should do that. We are a privileged class. The law firm I first
served in, a crusty curmudgeon was general counsel and told
everybody we had better be doing pro bono work, and he insisted
on it, and he made it possible for some of us young lawyers who
could not have afforded to do it on our own, he made it
possible that he would do it. I totally agree. I find it very
difficult to support nominees for anything who have been
lawyers who have not done pro bono. I know all of us have and I
think it is important.
Chairman Specter. Thank you, Senator Leahy.
I thought it was an interesting aspect of your professional
record. You are reputed to be firmly ensconced on one status of
the political spectrum--I think frequently we overdo that--and
to have you go in for a man convicted of two first degree
murders, that is an unusual line, especially for you to come to
the conclusion that the defendant was innocent.
That concludes the hearing. Thank you all very much.
Mr. Griffith. Thank you.
[Whereupon, at 10:44 a.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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