Mormon Nominated to D.C. Circuit

For those who follow such things, President Bush has just nominated Tom Griffith, current general counsel for BYU, to the United States Court of Appeals for the District of Columbia. For the non-law geeks of the universe, the D.C. Court of Appeals is an intermediate level appellate court (just below the Supreme Court) and after the Supreme Court it is widely regarded as the most important court in the United States, frequently serving as a training ground for Supreme Court justices. (Three of the nine current justices — Scalia, Thomas, Ginsburg — previously served on the D.C. Court of Appeals.) If confirmed, Griffith, to my knowledge, would be the first Mormon to serve on the Court and (in informal terms) the highest ranking Mormon ever in the federal judiciary.

Tom graduated from BYU, worked for several years as a CES director before going to law school at Virginia. Prior to taking his current job at BYU, he was Senate Legal Counsel during the impeachment of President Clinton, and a partner as Wiley, Rein & Fielding, a D.C. law firm. Tom is a terrific human being and a meticulous and thoughtful lawyer. I hope that he gets confirmed.

38 comments for “Mormon Nominated to D.C. Circuit

  1. Tom Griffith is also a very nice guy, and, for what it’s worth — dare I say it? — has been, within the limits of the time he’s had available to him — a friend of FARMS. (At one point, in a meeting I was involved in, President Bateman was discussing the idea of having a presidential representative on the FARMS board. When Tom Griffith volunteered, President Bateman responded, in good humor, that the plan was to have a representative of his administration on the FARMS board, not a representative of the FARMS board in his administration.) Tom has even made a presentation (a very good one) in our mid-week noonday lecture series. And yet he’s pleasant and unassuming. Go figure.

    I’m enthusiastic about the honor that this nomination represents for him and, to a certain derivative extent, for BYU and the Church, but I’m saddened by the prospect of his leaving the University.

  2. I’m curious as to whether anyone has heard anything about whether his nomination will meet with much resistence. I don’t know Tom (or his politics), but it seems like it could be tough to nominate just about anyone to the D.C. Circuit in an election year. That he served as Senate Legal Counsel during Clinton’s impeachment would seem to make the path to nomination that much more difficult.

  3. Much resistance? Well, it was smooth sailing for Miguel Estrada and Janice Rogers Brown. How hard could it be for Griffith?


  4. I’d be fairly surprised if he encounters substantial resistance to his nomination, but then again this is the D.C. Circuit and I don’t know what kind of paper trail there is out there. Also, given the recent revelations of the tactics and motives of the minority staff at the judiciary committee, it’s hard to predict whether he’ll encounter trouble or not.

    He does have the huge advantage of having worked in the judiciary committee himself and establishing a great reputation on both sides of the aisle. I think he has a very good chance, but we’ll have to see.

  5. Randy: The Senate Legal Counsel is a non-partisan position. He served as the Senate’s institutional legal adviser, rather than as an adviser to any particular Senator’s office or any Senate committee staff. For example, during impeachment, for example, he defended the position of Senator Biden (D-De), who contended that the Senate did not sit as a regular jury and had essentially unfettered discretion to decide the matter regardless of the ordinary criminal law or the facts of the matter. He also represented the Senate’s institutional interests in court a number of times, most notably in the line item veto case. My impression from when I worked in the Senate (incidentally, Tom was insturmental in getting me my job, so I am definitely biased in his favor) was that Tom was widely respected among Democrats. That said, given the rather shrill politics surrounding judicial nominations and the hatchet tactics of the minority on the judicial committee, anything is possible.

  6. Nate: didn’t he also work in the judiciary committee at some point, or is my memory of his bio faulty?

    Randy: I’m fairly certain that he won’t have any problems based on Clinton’s impeachment. I remember attending an event held at the BYU law school about Clinton’s impeachment where everyone, including Clinton’s lawyers praised Griffith for his honesty and impartiality. If there is anything in his paper trail that could cause problems, I don’t think it will come from Clinton’s impeachment. If anything, he may get into trouble because of his affiliation with Wiley, Rein & Fielding. It is perceived, rightly or wrongly, as a staunchly Republican firm and so they may have taken on matters in the past that certain special interest groups dear to hearts of Leahy and Kennedy may find objectionable. I hope this doesn’t happen, but we’ll have to see.

  7. When eminent Democrat Abner Mikva (former Chief Judge of the DC Circuit, White House Counsel to President Clinton, and 5-term congressman) visited BYU during my third year of law school, he had many complimentary things to say about Tom’s skill as an attorney and civility in difficult (i.e., partisan-feeling charged) situations.

    I think he has a good chance.

    Due to his apparent appeal to both sides of the aisle, his appointment is an interesting development in the ongoing judical appointment saga. Will Senate approval shortly before the upcoming election be used as exhibit A by Democrats claiming that they will gladly approve more moderate appointees?

  8. I think I’ll completely derail this thread by voicing a rather inflammatory but genuine regret that’s been building up inside me for the last several weeks. The fact that President Bush & Co., for whatever reason (fear of public backlash due to Bush v. Gore, general management style, different priorities, whatever), never pushed and/or managed to convince any Supreme Court justices to retire is, in my view, a real tragedy. The odds of various justices dying or being rendered incapacitated increase every day, and with the election season upon us, very likely no replacements could be made in the six months remaining in the Bush administration (not counting the two months following the election, during which time the Senate would presumably reject any attempted replacements as well). Which means that President Kerry, who will in my opinion do many things much better than our current president, will likely get to nominate a good chunck of the next generation of Supreme Court justices, which unfortunately is one of the few things that I’d really rather Bush do.

  9. I’ve enabled some HTML in comments. If this turns out to be a problem, I’ll pull it off, but I’m hoping it will work fine.

    The tags are standard html tags. I can’t write them directly (they won’t show up), use the form below, but with the greater-than and less-than signs.

    (b) to begin bold
    (/b) to end bold
    (i) to begin italic
    (/i) to end italic
    (u) to begin underlining
    (/u) to end underlining

  10. I’ve also gotten some push-buttons at the bottom to work if you open the separate comment window from the front page. (i.e., click on “Comments(11)” and scroll to the bottom, you should see the push-buttons). They aren’t displaying properly in the individual archive entries (the comments portion when it shows the whole post). I’ll tinker and see if I can get them up and running there as well.

  11. Yes, but you have to put in the “http://” part of the address, or it assumes that it’s a local link.

  12. Explain that hypertext link thing to those of us unfamiliar with HTML code. I type “(http://)” (except with greater-than and lesser-than signs instead) or something like that? How to I begin and end the link? An example, please.

  13. Here’s how you code it:

    &#60a href=””&#62LINK&#60/a&#62

    So, if I wanted the word “Click here” to link to the site, I would type;

    &#60a href=””&#62Click here&#60/a&#62

  14. Russell: Us brackets rather than parantheses and you do links thus:

    (a href=””)link to site(/a)

  15. If Tom isn’t approved, and quickly, it will prove how badly our judicial nomination system has become…and how political, rather than adjudicative, the judicial branch has become (largely due to the failure of congress & the executive to take up difficult issues).

  16. “it will prove how badly our judicial nomination system has become…and how political, rather than adjudicative, the judicial branch has become (largely due to the failure of congress & the executive to take up difficult issues).”

    Look at all the political trouble Marshall got Americans into.

    Let’s all move to Canada before they completely abandon their comparatively non-political judicial selection process and caste aside their tradition of restraint.

    But then Americans will have to accept more limited individual rights and—shock, horror—an emphasis in favor of collective or group rights under the Charter.

    My cursory reading of US politics suggests that Americans have always favored a political selection process. We like our judges to be disrespected just like any other public official—elected or appointed. Nothing like a good vetting!

  17. Adam, that was an old “internet boom” web site that ran its venture capital into the ground and went broke. I think the people that started it are now working on a web site called Personally I don’t agree at all with the new concept and wish they’d just go back to the old web site and make it into a viable search engine or something, instead of going off on weird tangents.

  18. jeremobi: I think that you bring up a good point. The federal judiciary in the United States is far and away the most powerful set of courts on the planet. Furthermore, American constitutionalism places incredible strains on the legitimacy of the federal courts, since we expect them to decide hugely divisive issues by interpretting what often cryptic and vague document. (More often than not, a few lines of that document, e.g. the Fourteenth Amendment’s due process clause) So as you point out, political battles over the courts have been endemic to American politics. On the other hand, these things tend to go in cycles. For example, after the tug-o-war of the 1930s, judicial appointments were fairly unpoliticicized in the 1940s and 1950s. With the Fortas nomination and Nixon’s decision to run against the Court in 1968 things have heated up. That said, I think that the Bork nomination took things to a new level. While we have had comparatively few Borkings of late, the level of pressure that is being braught to bear on the Senate over judicial nominations is literally unprecedented in American history. Those who care about such things have never been this well organized and this well funded before.

  19. If the gentleman does come under fire, I predict that BYU, and perhaps by extension the Church, will come largely into it.

    Mr. Griffith, you represented an institution that excluded homosexuals. How can the American people trust your judgement in a case involving, etc.?

    Mr. Griffith, how many professors were fired under your watch for speaking their mind? You show a troubling lack of concern for First Amendment values, and so on.

    BYU is just too non-mainstream an organization not to smear him with it, if that’s the desire (and, by focusing on BYU, they can say they’re not attacking the Church).

  20. Scott forwarded this to me. Now, perhaps Brother Griffith has a principled, conscientious objection to some of the rules of his chosen vocation. Or, perhaps he’s just a really disorganized guy. However, it sounds to me like Griffith, at least in regards to some things, is clearly a bit of a slacker.

    Judicial Nominee Practiced Law Without License in Utah

    By Carol D. Leonnig
    Washington Post Staff Writer
    Monday, June 21, 2004; Page A01

    Thomas B. Griffith, President Bush’s nominee for the federal appeals court in Washington, has been practicing law in Utah without a state law license for the past four years, according to Utah state officials.

    Griffith, the general counsel for Brigham Young University since August 2000, had previously failed to renew his law license in Washington for three years while he was a lawyer based in the District. It was a mistake he attributed to an oversight by his law firm’s staff. But that lapse in his D.C. license, reported earlier this month by The Washington Post, subsequently prevented Griffith from receiving a law license in Utah when he moved there.

    Under Utah law, Griffith’s only option for obtaining the state license was to take and pass the state bar exam, an arduous test that lawyers try to take only once. He applied to sit for the exam, but never took it, Utah bar officials confirm.

    Utah State Bar rules require all lawyers practicing law in the state to have a Utah law license. There is no general exception for general counsels or corporate counsels. Lawyers who practice only federal law or whose work is solely administrative can avoid the requirement in some cases.

    Griffith has declined to discuss the matter, which is expected to be a subject of his nomination hearings tentatively scheduled for next week. But a Justice Department spokesman said Friday that Griffith sought advice from Utah State Bar officials when he inquired last year about obtaining a license, and followed their suggestions for avoiding any ethical missteps.

    “The Utah State Bar advised him that to the extent that his duties as general counsel involved giving legal advice, he ought to closely associate himself with a Utah bar member,”
    Justice spokesman John Nowacki said. “It has been Mr. Griffith’s practice to closely associate himself with a Utah bar member when giving legal advice.”

    Nowacki declined to comment on whether the state bar advised Griffith to take the bar exam.
    According to sources familiar with a letter the state bar wrote to Griffith last year, bar officials recommended that Griffith take the exam, and work closely with a Utah bar member while his license application was pending.

    Griffith discovered in November 2001, a year after he joined Brigham Young, that his District law license had lapsed several years earlier, in 1998, for failure to pay his dues. He immediately paid his dues and renewed his D.C. license, Nowacki said. But for the first year in Utah, he was advising Brigham Young, a Mormon university in Provo, without a current law license from any state.

    A lawyer who specializes in legal ethics said Griffith’s two licensing lapses should disqualify him from a lifetime appointment to one of the nation’s most important federal benches, second only to the Supreme Court.

    “This moves it for me from the realm of
    negligence to the realm of willfulness,” said Mark Foster, a Zuckerman Spaeder attorney who represents lawyers in ethics matters. “People who thumb their noses at the rules of the bar shouldn’t be judges.”

    One veteran law professor said the two incidents raised significant questions, but that “in and of itself, it is not disabling.”

    “It begins to look like a pattern of
    carelessness,” said Paul Rothstein, a law professor at Georgetown University Law School.
    “It should cause your red flags to go up to see if there are other signs of carelessness.”

    Several lawyers from respected D.C. law firms, and former U.S. Court of Appeals for the D.C.
    Circuit chief judge Abner Mikva, have written public letters in defense of Griffith’s D.C.
    licensing lapse, calling it a minor mistake. “In our opinion, this matter does not raise a question concerning Tom’s fitness to serve on the bench,” wrote a group of Williams & Connolly lawyers.

    Griffith, 55, is a member of the Republican National Lawyers Association and was the lead counsel for the Senate during the impeachment trial of President Bill Clinton. Married and the father of six, he is a former partner at the D.C.
    firm of Wiley Rein & Fielding, whose partners served in prominent positions in past Republican administrations.

    Most lawyers arriving in Utah are allowed to get reciprocal state licenses, but Griffith did not meet the Utah State Bar requirement that he be a lawyer in good standing in his previous state for three of the previous four years.

    Joni Seko, deputy general counsel for the Utah State Bar, said most general counsels overseeing legal work for a university, organization or corporation are required to have licenses because they offer legal advice on a range of subjects, including state law.

    “It would surprise me that a general counsel would not get involved in those [state] decisions,” she said. “Even in a management capacity, that person would likely have to sign off on major contracts. To do that, you engage in the practice of state law.”

    Katherine Fox, the bar’s general counsel, declined to comment on Griffith’s specific situation. She said typically she would ask a general counsel moving into the state about the nature of his work and, if it were broad in nature, she would advise that he obtain a state license. “It is just too easy to cross the line”
    from managing to providing legal services, she said.

    “Unless they were doing things in which they were never practicing law, they need to get licensed,”
    she said.

    According to Brigham Young’s Web site, Griffith “is responsible for advising the Administration on all legal matters pertaining to the University. . . . The General Counsel directs and manages all litigation involving the University.”

    On his nomination questionnaire, in an answer about the “general nature of [his] law practice,”
    Griffith lists that he has worked on “higher education law” from 2000 to the present.

    A review of state bar membership shows many general counsels for other universities in Utah have their state’s bar license. That includes John K. Morris of the University of Utah, Craig J. Simper of Utah State University, and Kelly De Hill of Westminster College. Griffith’s predecessor at Brigham Young, Eugene H. Bramhall, has been a member of the Utah bar since 1981.

  21. You mentioned that “If confirmed, Griffith, to my knowledge, would be the first Mormon to serve on the Court and (in informal terms) the highest ranking Mormon ever in the federal judiciary.” Did you forget about Supreme Court Justice George Southerland? George Sutherland was born in England but raised in Utah where he later practiced law and acheived a measure of Republican political prominence. He served in the U.S. House of Representatives and in the Senate. Sutherland was a confidant of Warren Harding when he ran for the presidency. Harding later nominated him to the Supreme Court. While in private practice, Sutherland articulated a fundamentally conservative position on the role of government. His vision did not change on the Court.

    Sutherland offered his vote and voice in support of substantive due process and other judicial barriers to state governmentregulation and control. Much of this approach was rejected by subsequent Courts.

    He left his mark on other domains including the law of “standing” and the constitutional constraints governing foreign relations. Sutherland also forged an important link in the nationalization of the Bill of Rights by articulating the steps states must take to assure the right to counsel in capital cases.

  22. Dallan: Hate to burst your enthusiasm for Justice Sutherland (which I share & have actually done some work on his private papers); but…

    George Alexander Sutherland was _not_ LDS. While I haven’t checked for baptism records, he came to the U.S. after his father converted. Upon arrival in Utah, the father went apostate.

    While GAS attended BY Academy & was a favorite of Maeser, he did not attend LDS services (episopalian if i remember correctly).

    So…Tom as the ‘highest’ Utahn? No (esp. as Tom isn’t exactly a Utahn).
    So…Tom as the ‘highest’ Mormon? Yes, but only if you buy that the D.C. Circuit is “higher” than the other federal circuits.

  23. A quick Google shows that Sutherland’s parents converted in England and headed to Utah, but abandoned their faith and raised George as a non-Mormon. The time frame of Sutherland’s parents falling away appears to have been before George would have been eight, so I doubt he was baptized.

    See here, and here.

  24. A quick Google shows that Sutherland’s parents converted in England and headed to Utah, but abandoned their faith and raised George as a non-Mormon. The time frame of Sutherland’s parents falling away appears to have been before George would have been eight, so I doubt he was baptized.

    See here, and here.

    I do see, though, that Sutherland attended Brigham Young Academy.

  25. Another note on Sutherland: He was active in Liberal Party (gentile) politics during the pre-stathood days in Utah. Nevertheless, he was retained by the Church or by Mormon defendants in a number of anti-polygamy trials.

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