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34–112 PDF 2007

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

(

(II)

COMMITTEE ON THE JUDICIARY 

ARLEN SPECTER, Pennsylvania, Chairman 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

MICHAEL O’NEILL, Chief Counsel and Staff Director 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

(III)

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

Page

IV

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 JacksonLee, 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

Page

V

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

(1)

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 investigaVerDate 0ct 09 2002 14:21 Apr 13, 2007 Jkt 034112 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\34112.TXT SJUD1 PsN: CMORC
2

tory 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 

3

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 

4

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 

5

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. 

6

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. 

7

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. 

8

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 

9

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. 

10

Chairman SPECTER. Would you care to make an opening statement? 

STATEMENT OF THOMAS B. GRIFFITH, NOMINEE TO BE 

CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT 

Mr. GRIFFITH. I’ll just be brief. I want to thank you, Mr. Chairman, for holding this hearing, and thank you, Senator Leahy, for 

coming. 

I want to thank the President of the United States who honors 

me with this nomination, and thank Senators Hatch and Bennett 

for the kind and generous comments they made. 

And I would also like to take this opportunity to say what a wonderful experience it is to be back here in the Senate where I have 

such wonderful memories of having served with all of you and your 

colleagues. I’m pleased to be here, anxious and willing to answer 

any questions that you might have of me. 

[The biographical information of Mr. Griffith follows:]

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34112.020
31

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.] 

32

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 

33

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 inhouse 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—

34

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.

35

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. 

36

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 

37

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 

38

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—

39

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 temperaVerDate 0ct 09 2002 14:21 Apr 13, 2007 Jkt 034112 PO 00000 Frm 00045 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\34112.TXT SJUD1 PsN: CMORC
40

ment 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 

41

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. 

42

Mr. GRIFFITH. Thank you. 

[Whereupon, at 10:44 a.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.]

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