<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 U.S. GOVERNMENT PRINTING OFFICE 34-112 WASHINGTON : 2007 _____________________________________________________________________________ For Sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512ÿ091800 Fax: (202) 512ÿ092250 Mail: Stop SSOP, Washington, DC 20402ÿ090001 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:] [GRAPHIC] [TIFF OMITTED] T4112.001 [GRAPHIC] [TIFF OMITTED] T4112.002 [GRAPHIC] [TIFF OMITTED] T4112.003 [GRAPHIC] [TIFF OMITTED] T4112.004 [GRAPHIC] [TIFF OMITTED] T4112.005 [GRAPHIC] [TIFF OMITTED] T4112.006 [GRAPHIC] [TIFF OMITTED] T4112.007 [GRAPHIC] [TIFF OMITTED] T4112.008 [GRAPHIC] [TIFF OMITTED] T4112.009 [GRAPHIC] [TIFF OMITTED] T4112.010 [GRAPHIC] [TIFF OMITTED] T4112.011 [GRAPHIC] [TIFF OMITTED] T4112.012 [GRAPHIC] [TIFF OMITTED] T4112.013 [GRAPHIC] [TIFF OMITTED] T4112.014 [GRAPHIC] [TIFF OMITTED] T4112.015 [GRAPHIC] [TIFF OMITTED] T4112.016 [GRAPHIC] [TIFF OMITTED] T4112.017 [GRAPHIC] [TIFF OMITTED] T4112.018 [GRAPHIC] [TIFF OMITTED] T4112.019 [GRAPHIC] [TIFF OMITTED] T4112.020 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. 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