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Executive Session

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Location: Washington, DC


EXECUTIVE SESSION -- (Senate - June 13, 2005)

NOMINATION OF THOMAS B. GRIFFITH TO BE UNITED STATES CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA

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Mr. SPECTER. Mr. President, I rise to speak on behalf of Mr. Thomas B. Griffith for confirmation to the U.S. Court of Appeals for the District of Columbia. I could not be here in my capacity as chairman of the Judiciary Committee to open the debate this afternoon because we had a field hearing on juvenile crime in Philadelphia. But I am here now because I want to express my views as to why I believe Mr. Griffith is preeminently well qualified to take on the important job of circuit judge in the District of Columbia.

Mr. Griffith has an extraordinary academic background. He graduated from Brigham Young University with his bachelor's degree in 1978, with a summa cum laude rating and high honors. He also was valedictorian of his college. He earned his law degree from the University of Virginia. During law school, Mr. Griffith was a member of the Editorial and Articles Review Board of the Virginia Law Review, which is a very high position at a prestigious law school.

Following law school, Mr. Griffith worked at the Charleston, NC, law firm of Robinson, Bradshaw & Hinson. He then continued his very distinguished professional career as a partner at Wiley, Rein & Fielding. In 1995, by unanimous resolution, the Senate, sponsored by the Republican and Democratic leaders, appointed him to the nonpartisan position of Senate legal counsel.

During his tenure as Senate legal counsel, Mr. Griffith tackled a very tough issue relating to the impeachment of President Clinton. He did an outstanding job. He also argued, on behalf of the Senate, two very important matters involving committee investigations and the line item veto litigation, which resulted in two landmark decisions by the Supreme Court of the United States, At the conclusion of his tenure, Mr. Griffith was unanimously endorsed by a bipartisan resolution, cosponsored by Senator Daschle, Senator Lott, Senator Dodd, and Senator McConnell, expressing the Senate's gratitude for his services as Senate legal counsel.

There were especially complimentary remarks made by Senator Dodd, who said, ``Mark Twain once suggested, `Always do right. This will gratify some people and astonish the rest.' 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. All of us who serve here in the Senate know the importance of the rule of law; but let us never forget that it is individuals like Mr. Thomas Griffith whose calling it is to put that ideal into practice.''

Senator Thurmond also expressed high praise for Mr. Griffith, as did Senator Lott.

Beyond his work in the profession, Mr. Griffith has found time to give back to the community. He serves as an advisory board member to the ABA Central European and Eurasian Law Initiative. Furthermore, while in private practice, Mr. Griffith took on a significant pro bono representation of a death row inmate, which led to the commutation of the inmate's sentence by the Governor of Virginia.

Mr. President, I ask unanimous consent to have printed in the Congressional Record, statements of support on behalf of Mr. Griffith.

There being no objection, the material was to be printed in the RECORD, as follows:

Support

Seth Waxman said of Mr. Griffith's nomination, ``I have known Tom since he was Senate Legal Counsel and I was Solicitor General, and I have the highest regard for his integrity. For my own part, I 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.''

Glen Ivey, former counsel to Former Senate Democratic Leader Tom Daschle, wrote to this Committee, stating, ``I believe Mr. Griffith is an exceptional nominee and would make an excellent judge. Although Mr. Griffith and have different party affiliations and do not agree on all political matters, I learned during the Senate's Whitewater and Campaign Finance Reform investigations that Mr. Griffith took seriously his oath of office. Even when we were handling sensitive and politically charged issues, he acted in a non-partisan and objective manner. I believe Mr. Griffith has the intellect and the temperament to make an outstanding jurist.''

According to David Kendall, personal counsel to President and Senator Clinton, ``For years Tom has been a leader in the bar and has shown dedication to its principles. The federal bench needs judges like Tom, an excellent lawyer who is supported across the political spectrum. ..... [W]e support Tom and believe he has the intellect and judgment to be an excellent judge.''

Harvard Law Professor William Stuntz has known Mr. Griffith for over twenty years. He wrote, ``Few people I know deserve to be called wise; very few deserve to be called both wise and good. Tom is a wise and good man. I believe he will be one of this nation's finest judges.''

Abner Mikva, a former White House Counsel for President Clinton and a former Chief Judge of the U.S. Court of Appeals for the D.C. Circuit, wrote to Senator Leahy, ``I write as an enthusiastic supporter. ..... I have known Tom Griffith in the public sector and in the private sector, and I have never heard a whisper against his integrity or responsibility. Tom Griffith will be a very good judge. I have always found Tom to be diligent, thoughtful, and of the greatest integrity ..... Tom has a good temperament for the bench, is moderate in his views and worthy of confirmation.''

Finally, Senator Dodd of Connecticut noted that Mr. Griffith handled his difficult responsibilities as Senate Legal Counsel with great confidence 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.''

Mr. SPECTER. There has been a challenge against Mr. Griffith, with respect to his Utah bar membership. Because he serves as general counsel to Brigham Young University, there were some questions raised as to whether he should have been a member of the Utah bar. I think that issue has been clarified, although some are still contesting it. I ask unanimous consent to have printed in the RECORD a full explanation of the Utah bar membership issue.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

Tom Griffith: Utah Bar Membership

FACTS

As soon a Mr. Griffith accepted the position of Assistant to the President and General Counsel of Brigham Young University (``BYU''), he sought to determine what Utah's requirements were for in-house counsel by consulting with Utah attorneys.

Mr. Griffith always has complied with the advice he received--when his responsibilities require that he provide legal advice to the University, he does so only in close association with active members of the Utah Bar.

Mr. Griffith was told that, as in-house counsel, he need not become a member of the Utah Bar provided that when he gives legal advice, he does so in close association with active members of the Utah Bar.

Mr. Griffith has always provided legal advice in conjunction with one of four attorneys in his office who are licensed with the Utah Bar, or an outside counsel who is licensed with the Utah Bar. As BYU's General Counsel, he has made no court appearances, nor has he signed any pleadings, motions, or briefs.

Mr. Griffith communicated with Utah State Bar officials who were aware that he had not sat for the Utah Bar exam. These officials advised Mr. Griffith to associate himself closely with a Utah Bar member whenever giving legal advice pending his admission to the Utah Bar--which he did. Not once did Utah Bar officials warn Mr. Griffith that his arrangements were contrary to accepted practice--because they weren't. The Utah Bar has affirmed that such arrangements do not constitute practicing law without a license.

Numerous former and current Utah Bar officials have written letters affirming that the precautions taken by Mr. Griffith were appropriate and in accordance with the Utah Bar rules.

Five former Presidents of the Utah Bar: ``While there is no formal `general counsel' exception to the requirement that Utah lawyers must be members of the Utah bar, it has been our experience that a general counsel working in the state of Utah need not be a member of the Utah Bar provided that when giving legal advice to his or her employer that he or she does so in conjunction with an associated attorney who is an active member of the Utah Bar and that said general counsel makes no Utah court appearances and signs no Utah pleadings, motions, or briefs.''--John Adams, Charles Brown, Scott Daniels, Randy Dryer, Dennis Haslam, Letter to Chairman Hatch, June 28, 2004.

John Baldwin, Executive Director of the Utah Bar: ``To those general counsel who cannot avoid circumstances which approach or may cross that line, we have consistently advised that under such circumstances they should directly associate with lawyers who are licensed in the state and on active status. Our policy has also consistently been that of those who follow that advice are not engaged in the unauthorized practice of law.''--Letter to Chairman Hatch, July 2, 2004.

Ethics experts have explained that Mr. Griffith has at all times been in compliance with rules of ethical professional conduct.

``[T]he requirement of membership in a particular bar is not in itself a rule of ethical professional conduct, but a lawyers' `guild rule' (like minimum fee schedules and restrictions on advertising) designed to restrict competition.--Monroe Freedman, Law Professor at Hofstra University and Thomas Morgan, Law Professor at GW Law School, Letter to the Editor, New York Times, July 4, 2004.

``At best, the requirement of a license is intended to assure that one who holds himself out to the public as a lawyer is indeed competent to serve as a lawyer. In that regard, there is no question about Mr. Griffith's competence, which is the only ethical issue that is material.'' Id.

The ABA and the American Law Institute Restatement both support a policy of not requiring in-house counsel to be license in state, as long as the attorney is licensed in at least one state.

ALI Restatement: ``States have permitted practice within the jurisdiction by inside legal counsel for a corporation or similar organization, even if the lawyer is not locally admitted and even if the lawyer's work consists entirely of in-state activities, when all of the lawyer's work is for the employer-client and does not involve appearances in court. Leniency is appropriate because the only concern is with the client-employer, who is presumably in a good position to assess the quality and fitness of the lawyer's work.''--ALI Restatement, Section 3, Comment f.

ABA Model Rules: ``(d) A lawyer admitted in another United States jurisdiction and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this jurisdiction that (1) are provided to the lawyer's employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission.''--Model Rule 5.5(d)(1).

Mr. Griffith's sole employer, BYU, was aware that Mr. Griffith was not a member of the Utah Bar and did not require him to be a member. BYU is the largest private university in the U.S., with campuses and programs throughout the world--much like a multinational corporation.

Former Dean of BYU Law and Chair of BYU General Counsel Search Committee, Professor H. Reese Hansen: ``The fact that Mr. Griffith was not a member of the Utah Bar was, of course, well known to all relevant decision makers when he was recommended for and hired as Assistant to the President and General Counsel to BYU.''--Letter to Chairman Hatch, June 29, 2004.

Dean Hansen: ``A lawyer who is employed as General Counsel to a [multinational corporation] and who provides legal and other services only to his or her employer is obviously not licensed to practice in every jurisdiction where the entity has suppliers, customers, or shareholders or where its advertisements may reach. I view BYU's Assistant to the President and General Counsel in exactly the same situation in regard to his bard membership....... I believe that Mr. Griffith has conducted his professional service to his sole client, Brigham Young University, in a completely appropriate manner in all regards and consistent with common practices of general counsel to large U.S. entities who conduct multi-state and international activities.'' Id.

Mr. SPECTER. Similarly, there had been an issue regarding Mr. Griffith's lapsed membership in the District of Columbia bar, which occurred because of an administrative oversight.

Excuse me; nothing is as troublesome as a pesky summer cold. Without this cold, my speech would be considerably longer, Mr. President, so there are some advantages, at least, for anyone who may be watching on C-SPAN--if anyone watches C-SPAN during these late afternoon proceedings of the Senate. I ask unanimous consent that a full explanation of the DC Bar membership issue also be printed in the RECORD.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

Tom Griffith: D.C. Bar Membership

FACTS

In 2001, Mr. Griffith discovered that his D.C. Bar membership had been suspended for failing to pay his annual dues. As soon as he became aware of the problem, he paid the dues and was reinstated as a bar member in good standing.

Mr. Griffith accepts full responsibility for the oversight, and he brought the lapse in his membership to the attention of the Senate Judiciary Committee in his questionnaire.

Having worked as an attorney at a large D.C. law firm from 1991-1995, Mr. Griffith became accustomed to the firm's practice of paying its attorney's bar dues.

When Mr. Griffith became Senate Legal Counsel, he was late in paying his 1997 D.C. Bar dues, and as a result, was suspended from the D.C. Bar for approximately five weeks. As soon as Mr. Griffith became aware of the problem in January 1998, he paid the dues and was reinstated as a member in good standing.

In 1998, while still serving as Senate Legal Counsel, Mr. Griffith unintentionally failed to pay his 1998 D.C. Bar dues and was suspended as a result. He was unaware of his suspension at the time.

When Mr. Griffith returned to his former law firm in March 1999, he wrongly assumed, based on his prior experience at the firm, that the firm was paying dues on his behalf. He continued to have no knowledge of suspension.

Mr. Griffith paid his back dues as soon as he discovered the problem in 2001. He was promptly reinstated as a member in good standing of the D.C. Bar. Since then, he has paid his D.C. Bar dues in a timely manner and remains a D.C. Bar member in good standing.

Mr. Griffith's situation is not at all unusual. D.C. Bar counsel quotes that every year over 3,000 D.C. lawyers (and a number of sitting judges) are ``administratively suspended'' for late payment of dues.

An inadvertent failure to pay bar dues does not reflect poorly on Mr. Griffith's character or ability to serve as a judge on the U.S. Circuit Court of Appeals.

Abner Mikva, former Chief Judge, U.S. Court of Appeals for the D.C. Circuit: ``I cannot believe the [the Washington Post] or anyone else thinks that the inadvertent failure to pay bar dues because no bill was sent is a mark of a lawyer's character. I have known Tom Griffith in the public sector and in the private sector, and I have never heard a whisper against his integrity or responsibility.''--Letter to the Editor, Washington Post, June 8, 2004.

David Kendall, private attorney to former President Clinton, and Lanny Breuer, former Associate Counsel to President Clinton: ``Contrary to the Post's implication, Tom is an outstanding attorney who takes his responsibilities as a member of the bar seriously. ..... As soon as he realized that bills were unpaid, he paid them. Tom took the common and proper course of action under the circumstances. This innocent oversight has no bearing on his ability to serve as a judge.''--Letter to the Editor, Washington Post, June 11, 2004.

Former ABA Presidents Bill Ide and Sandy D'Alemberte, along with 11 other attorneys: ``By immediately paying his dues when he became aware of the oversight, Tom took the proper course of action. According to D.C. Bar counsel, such an oversight is entirely common and of no major concern, particularly where no reminder notice is sent out. In fact, Tom was promptly reinstalled after he paid his accrued dues, without any questions raised about possible sanctions.''--Letter to Chairman Hatch, June 14, 2004.

Ethics Expert, Professor Monroe H. Freedman, Hofstra University Law School: ``In the District of Columbia, Mr. Griffith had in fact been a member of the bar in good standing; the only problem was a temporary lapse in the payment of dues, which he promptly remedied when he became aware of it. He thereby once again became, and remains, a member of the D.C. Bar in good standing. Neither the bar nor anyone else has ever questioned Mr. Griffith's competence to practice law.''--Letter to Chairman Hatch, June 29, 2004.

Mr. Griffith was ``administratively suspended'' from the D.C. Bar for failure to pay his bar dues. No disciplinary action was ever taken against him.

* Former ABA Presidents Bill Ide and Sandy D'Alemberte, along with 11 other attorneys: ``The Post improperly equated Tom's situation to `disciplinary suspension,' a rare sanction imposed only when a lawyer knowingly refuses to pay bar dues. It was nothing of the kind. When advised of the problem, Tom promptly paid his dues in full.''--Letter to Chairman Hatch, June 14, 2004.

Mr. SPECTER. We had a second hearing for Mr. Griffith this year, after I became chairman, because his original hearing was not well attended. It was held at the end of the last session. At the hearing this year, I think we explored in considerable detail the issue of his D.C. bar membership.

It is always a difficult matter when a lawyer is a member of one bar and seeks to become a member of another. I know I went through a similar issue when I took the New Jersey bar, 23 years after I attended law school. It is an experience, but I went through it. However, I think this by no means disqualifies Mr. Griffith, and I think the issue has been adequately explained on the record.

Tom Griffith is well known in the Senate, perhaps better known than virtually any other judicial nominee who comes here, because he had been legal counsel to the Senate. I think many people who know Mr. Griffith on a personal, intimate basis know of his high ethical standards, his scholarship, and his legal ability. He is soft spoken. He is mature. He is knowledgeable. I think he will make a fine circuit judge.

Mr. Griffith comes with an especially strong recommendation from the former chairman of the Judiciary Committee, Senator Hatch, who has known Mr. Griffith personally for many years, and speaks very highly of him.

Regrettably, I cannot be here tomorrow to speak again, as is the practice for the chairman to speak immediately before leadership, because I will be traveling in Pennsylvania with President Bush. Tom Griffith is an outstanding candidate, and I urge my colleagues to vote to confirm him.

Mr. President, in the absence of any Senator seeking recognition, in fact, in the absence of any other Senator on the floor, I suggest the absence of a quorum.

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http://thomas.loc.gov

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