[Senate Hearing 109-853]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 109-853
 
CONFIRMATION HEARING ON THE NOMINATION OF THOMAS B. GRIFFITH, OF UTAH, 
        TO BE CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT

=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

                             MARCH 8, 2005

                               __________

                          Serial No. J-109-61

                               __________

         Printed for the use of the Committee on the Judiciary



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                       COMMITTEE ON THE JUDICIARY

                 ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah                 PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas                   CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas                RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
           Michael O'Neill, Chief Counsel and Staff Director
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director

                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts, prepared statement..............................   149
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     7
    prepared statement...........................................   164
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................     6

                               PRESENTERS

Bennett, Hon. Robert F., a U.S. Senator from the State of Utah 
  presenting Thomas B. Griffith, of Utah, to be Circuit Judge for 
  the District of Columbia Circuit...............................     4
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah 
  presenting Thomas B. Griffith, of Utah, to be Circuit Judge for 
  the District of Columbia Circuit...............................     1

                        STATEMENT OF THE NOMINEE

Griffith, Thomas B., of Utah, to be Circuit Judge for the 
  District of Columbia Circuit...................................    10
    Questionnaire................................................    11

                         QUESTIONS AND ANSWERS

Responses of Thomas B. Griffith to questions submitted by Senator 
  Feingold.......................................................    43
Responses of Thomas B. Griffith to questions submitted by Senator 
  Feinstein......................................................    47
Responses of Thomas B. Griffith to questions submitted by Senator 
  Kennedy........................................................    57
Responses of Thomas B. Griffith to questions submitted by Senator 
  Leahy..........................................................    63

                       SUBMISSIONS FOR THE RECORD

Albright, G. Mark, Esq., Albright, Stoddard, Warnick & Palmer, 
  Las Vegas, Nevada, letter......................................    75
Alliance for Justice, Washington, D.C., statement................    77
American Association of University Women, Nancy Rustad, 
  President, and Jacqueline E. Woods, Executive Director, 
  Washington, D.C., letters......................................    87
Andrews, Walter J., Shaw Pittman LLP, Washington, D.C. letter....   102
Augustine-Adams, Kif, Professor of Law, J. Reuben Clark Law 
  School, Brigham Young University, Provo, Utah, letter..........   103
Baldwin, John C., Executive Director, Utah State Bar, Salt Lake 
  City, Utah, letter.............................................   105
Bertelsen, Delora P., Managing Director, Employee Relations and 
  Equal Opportunity, Brigham Young University, Provo, Utah, 
  letter.........................................................   106
Bowlsby, Robert A., Director, Iowa Hawkeyes, University of Iowa, 
  Iowa City, Iowa, letter........................................   107
Brunner, Thomas W., Wiley Rein & Fielding LLP, Washington, D.C., 
  letter.........................................................   108
Cobb, John H., Attorney at Law, Helms Mulliss & Wicker, PLLC, 
  Washington, D.C., letter.......................................   110
Community Rights Counsel and Earthjustice, Washington, D.C., 
  joint letter and attachment....................................   112
Ellis, Mark S., Executive Director, International Bar 
  Association, London, United Kingdom, letter....................   117
Faculty and administrators at the J. Reuben Clark Law School, 
  Constance K. Lundberg, Associate Dean, Professor of Law, 
  Katherine D. Pullins, Associate Dean, May H. Hoagland, 
  Assistant Dean, Provo, Utah, joint letter......................   119
Foggan, Laura A., Wiley Rein & Fielding LLP, Washington, D.C., 
  letter.........................................................   121
Former Utah Bar Presidents, John A. Adams, Charles R. Brown, 
  Scott Daniels, Randy L. Dryer, Dennis V. Haslam, Provo, Utah, 
  joint letter...................................................   122
Freedman, Monroe H., Professor of Law, Hofstra University, School 
  of Law, Hempstead, New York, letter............................   123
Grames, Conan P., Chairman, International Section, Kirton & 
  McConkie, Attorneys at Law, Salt Lake City, Utah, letter.......   126
Guynn, Randall D., Davis Polk & Wardwell, New York, New York, 
  letter.........................................................   127
Hansen, H. Reese, J. Reuben Clark Law School, Brigham Young 
  University, Provo, Utah, letter................................   129
Huefner, Steven F., Ohio State University, Moritz College of Law, 
  Columbus, Ohio, letter.........................................   132
Ivey, Glenn F., Upper Marlboro, Maryland, letter.................   134
Jones, Brian W., General Counsel, Department of Education, 
  Washington, D.C., letter.......................................   135
Justice for All Project, Susan Lerner, Chair, Committee for 
  Judicial Independence, Los Angeles, California, letter and 
  attachment.....................................................   137
Keegan, Lisa Graham, Education Leaders Council, Washington, D.C., 
  letter.........................................................   146
Kendall, David E., Williams & Connolly, LLP, and Lanny A. Breuer, 
  Covington, & Burling, Washington, D.C., joint letter...........   148
Khoury, Paul F., Wiley Rein & Fielding LLP, Washington, D.C., 
  letter.........................................................   152
Lawson, Rodney H., Attorney at Law, Carrington Coleman Sloman & 
  Blumenthal LLP, Dallas, Texas, letter..........................   154
Lawyers in the organized bar, Washington, D.C., joint letter.....   156
Leadership Conference on Civil Rights, Wade Henderson, Executive 
  Director and Nancy Zirkin, Deputy Director, Director of Public 
  Policy, Washington, D.C., letters..............................   160
Legal Momentum, Lisalyn R. Jacobs, Vice President of Government 
  Relations, Washington, D.C., letter............................   168
Leland, Ted, Jaquish & Kenninger Director of Athletics, Stanford 
  University, Stanford, California, letter.......................   170
McConkie, Oscar W., Attorney at Law, Kirton & McConkie, Salt Lake 
  City, Utah, letter.............................................   171
Mexican American Legal Defense and Educational Fund, Ann Marie 
  Tallman, President and General Counsel, Washington, D.C., 
  letter.........................................................   172
Members of Congress, Rosa L. DeLauro, Louise M. Slaughter, Betty 
  McCollum, Carolyn McCarthy, Carolyn B. Maloney, Barney Frank, 
  Jim McDermott, Neil Abercrombie, Raul M. Grjalva, Tammy 
  Baldwin, Eddie Bernice Johnson, Stephanie Tubbs Jones, Gene 
  Green, Lynn C. Woolsey, Nita M. Lowey, Marcy Kaptur, Sherrod 
  Brown, Hilda L. Solis, Barbara Lee, John B. Larson, Eleanor 
  Holmes Norton, Diane E. Watson, Flijah E. Cummings, James L. 
  Oberstar, Joseph Crowley, Madeleine Z. Bordallo, Dennis J. 
  Kucinich, Maxine Waters, Janice D. Schakowsky, Sheila Jackson-
  Lee, Marty T. Meehan, Tom Lantos, Corrine Brown, Chris Van 
  Hollen, Washington, D.C. joint letter..........................   176
Michaelis, Elaine, Executive Director, Women's Athletics, Brigham 
  Young University, Provo, Utah, letter..........................   181
Mikva, Abner J., former Chief Judge, Court of Appeals for the 
  D.C. Circuit, and Visiting Professor, University of Chicago Law 
  School, Chicago, Illinois, letter..............................   183
Morgan, Thomas D., Oppenheim Professor of Antitrust and Trade 
  Regulation Law, George Washington University Law School, 
  Washington, D.C., letter.......................................   184
Moyer, Homer E., Jr., Miller & Chevalier, Washington, D.C., 
  letter.........................................................   187
National Association for the Advancement of Colored People, 
  Hilary O. Shelton, Director, Washington, D.C., letter..........   188
National Coalition for Women and Girls in Education, Lisa M. 
  Maatz, Chair, and Jocelyn Samuels, Vice-Chair, Washington, 
  D.C., letter and attachments...................................   190
National Council of Jewish Women, Marsha Atkind, President, 
  Washington, D.C., letter.......................................   196
National Employment Lawyers Association, San Francisco, 
  California, statement..........................................   198
National Organization for Women, Olga Vives, Action Vice 
  President, Washington, D.C., letter............................   201
National Partnership for Women & Families:
    Debra L. Ness, President, March 7, 2005, letter..............   202
    Judith L. Lichtman, President and Debra Ness, President-
      Elect, June 30, 2004, letter...............................   206
National Women's Law Center, Nancy Duff Campbell, Co-President, 
  and Marcia D. Greenberger, Co-President, Washington, D.C.:
    February 16, 2005, letter and attachment.....................   209
    June 17, 2004, letter........................................   217
    June 9, 2004, letter.........................................   219
Olson, Eric C., Attorney at Law, Kirton & McConkie, Salt Lake, 
  City, Utah, letter.............................................   221
People for the American Way, Ralph G. Neas, President, 
  Washington, D.C., letter.......................................   223
Robinson, Russell M., II, Robinson Bradshaw & Hinson, Charlotte, 
  North Carolina, letter.........................................   233
Robinson Bradshaw & Hinson, Charlotte, North Carolina, joint 
  letter.........................................................   234
Rogers, Sandra, International Vice President, Brigham Young 
  University, Provo, Utah, letter................................   237
Scharman, Janet S., Student Life Vice President, Brigham Young 
  University, Provo, Utah, letter................................   238
Simon, Rita J., University Professor, Title IX Commissioner, 
  American University, Washington, D.C., letter..................   239
Spanier, Graham B., President, Pennsylvania State University, 
  University Park, Pennsylvania, letter..........................   240
Stroup, Sally L., Assistant Secretary, Office of Postsecondary 
  Education, Department of Education, Washington, D.C., letter...   242
Stuntz, William J., Professor of Law, Harvard Law School, 
  Cambridge, Massachusetts, letter...............................   244
Tolbert, David, Deputy Registrar, Interanational Criminal 
  Tribunal for the former Yugoslavia, The Hague, Netherlands, 
  letter.........................................................   246
Walker, Samuel D., Esq., Chief Legal Officer and Public Affairs 
  Vice President, Coors Brewing Company, Littleton, Colorado, 
  letter.........................................................   247
Wardle, Lynn D., Professor of Law, J. Reuben Clark Law School, 
  Brigham Young University, Provo, Utah, letter..................   248
Waxman, Seth P., former Solicitor General of the United States 
  and Partner, Wilmer, Cutler & Pickering, Washington, D.C., 
  letter.........................................................   250
Wiley, Richard E., Wiley Rein & Fielding LLP, Washington, D.C., 
  letter.........................................................   251
Women's rights, civil rights and other organizations, joint 
  letter.........................................................   252
Women's Sports Foundation, Dawn Riley, President, East Meadow, 
  New York, letter...............................................   257


NOMINATION OF THOMAS B. GRIFFITH, OF UTAH, TO BE CIRCUIT JUDGE FOR THE 
                      DISTRICT OF COLUMBIA CIRCUIT

                              ----------                              


                         TUESDAY, MARCH 8, 2005

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:38 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Arlen 
Specter, Chairman of the Committee, presiding.
    Present: Senators Specter, Hatch, Leahy, and Feingold.
    Chairman Specter. Good morning, ladies and gentlemen. The 
Judiciary Committee will now proceed on the nomination of 
Thomas B. Griffith to be United States Circuit Judge for the 
District of Columbia.
    Senator Hatch, our distinguished former Chairman, has 
commitments imminently, and we will hear from him first as he 
makes the presentation of the witness and nominee. Senator 
Hatch?

PRESENTATION OF THOMAS B. GRIFFITH, NOMINEE TO BE CIRCUIT JUDGE 
FOR THE DISTRICT OF COLUMBIA CIRCUIT, BY HON. ORRIN G. HATCH, A 
              U.S. SENATOR FROM THE STATE OF UTAH

    Senator Hatch. Well, thank you, Mr. Chairman. I appreciate 
your courtesy to me, and, Senator Leahy, the Vice Chairman, I 
appreciate both of you. I do have to leave for a few minutes to 
make a presentation before one of the committees, but I will 
come back for the remainder of the hearing.
    Mr. Chairman and Senator Leahy, it is my pleasure to 
introduce to the Committee Thomas B. Griffith, whom the 
President has again nominated to the U.S. Court of Appeals for 
the District of Columbia Circuit. Tom is a constituent of all 
of ours, but certainly of mine, currently living in Utah, 
though he was born and raised back here in the East.
    Most members of the Committee should be familiar with Mr. 
Griffith, both because he had a hearing in November but also 
because he worked here in the Senate as legal counsel from 1995 
to 1999. I think he will make a fine addition to the D.C. 
Circuit, and as the chief legal officer of the U.S. Senate, Mr. 
Griffith represented this institution, its committees, members, 
officers, and employees on a vast array of legal matters, 
including representing the Senate in litigation relating to our 
constitutional powers and privileges. He advised the Senate 
committees about their investigatory powers and procedures and 
represented the Senate's institutional interests in the 
impeachment trial of President Clinton, the line-item veto act 
litigation, and in numerous Committee investigations. Mr. 
Griffith's legal experience in the Senate has prepared him well 
for the bench and has arguably better training for the 
judiciary than many and perhaps most other categories of legal 
experience. His work here required him to be nonpartisan in a 
sometimes highly partisan environment, and by all accounts he 
did a superb job. Mr. Griffith consistently exercised sound 
judgment, objectivity, and fairness. I emphasize this because 
these are qualities that are essential to service as a Federal 
judge.
    But do not just take my word for it. Prominent Republicans 
and Democrats have said so as well. Mr. Griffith's former law 
partner, Richard Wiley, of the firm Wiley, Rein & Fielding, 
wrote that the nominee before us today is ``an outstanding 
lawyer with keen judgment, congenial temperament, and 
impeccable personal integrity.''
    Seth Waxman, who we all admired, who served as Solicitor 
General during the Clinton administration, said that he not 
only has the ``highest regard'' for Mr. Griffith's integrity, 
but that he would ``stake most everything on his word alone. 
Litigants would be in good hands with a person of Tom 
Griffith's character as their judge.''
    Fred Fielding, White House counsel to President Reagan and 
former Chairman of the American Bar Association's Standing 
Committee on the Federal Judiciary, has described Mr. Griffith 
as ``a very special individual and a man possessed of the 
highest integrity. He is a fine professional who demands of 
himself the very best of his intellect and energies.''
    Again, on the Democratic side, President and Senator 
Clinton's personal counsel David Kendall has this to say: ``The 
Federal bench needs judges like Tom, an excellent lawyer who is 
supported across the political spectrum.'' Mr. Kendall said Mr. 
Griffith ``has the intellect and judgment to be an excellent 
judge.'' I think we all get the point.
    Mr. Griffith has been a dedicated public servant and has 
demonstrated the sound judgment and temperament necessary to be 
an outstanding Federal appellate judge. He stands in a 
distinguished line of other members of the Senate family whom 
the Senate has confirmed to various U.S. Courts of Appeals, 
including Dennis Shedd, Sharon Prost, and Stephen Breyer, each 
of whom served as chief counsel to this Committee.
    Mr. Griffith's private law practice complements his public 
service. After graduating summa cum laude from Brigham Young 
University and earning his law degree from the University of 
Virginia, Mr. Griffith practiced law with a private firm in 
North Carolina. Following his service here, he became a partner 
with the distinguished firm of Wiley, Rein & Fielding in 
Washington, D.C. He now serves as general counsel for the 
Brigham Young University, an international institution in Utah.
    Ordinarily, a nominee with this combination of public and 
private sector legal experience and personal character and 
integrity would face a smooth confirmation process. As I 
described to the Committee last November, there seemed to be 
but two stumbling blocks, if you can even call them that. 
First, a series of errors left his bar dues here in the 
District of Columbia unpaid for a few years. He has taken 
responsibility for this mistake. He does not recall the D.C. 
Bar sending him an invoice nor do they recall sending it to him 
for his dues at the end of his service as Senate legal counsel. 
And then he assumed his law firm was paying his dues, as it did 
for all the other lawyers. That was unfortunate. It was an 
unfortunate combination of errors, but that is all they were--
errors. He certainly did not intentionally neglect to pay his 
bar dues and indeed promptly paid the back dues when he 
discovered the problem. The D.C. Bar administratively, I am 
informed, suspends more than 3,000 lawyers each year for late 
payment of dues, and they allow them up to 3 years to get those 
dues paid.
    Legal ethics experts and former ABA Presidents confirm that 
such an administrative suspension is different than the 
disciplinary suspension that results from a lawyer knowingly 
refusing to pay dues. In the words of former White House 
counsel and appeals court Judge Abner Mikva, ``this is a whole 
lot of nothing.''
    Second, some have asked whether Mr. Griffith was required 
to take the Utah Bar exam in order to serve in his current 
capacity as BYU general counsel. The simple and straightforward 
answer is no, so long as when he gives advice or pursues 
activities that can be called the ``practice of law'' he does 
so in conjunction with a member of the Utah Bar. And he had 
four members of the Utah Bar advising him on Utah issues.
    The executive director of the Utah Bar wrote this Committee 
last year to say that those who follow this advice ``are not 
engaged in the unauthorized practice of law.'' To my knowledge, 
no one has even suggested that he has done anything but 
scrupulously met this standard.
    That conclusion was reaffirmed to me in a letter from no 
less than five former presidents of the Utah State Bar 
Association. In addition, the ABA itself thoroughly examined 
Mr. Griffith's record and concluded he is qualified to serve on 
the Federal bench.
    Mr. Chairman, I would like to place in the record a letter 
from the Association of Corporate Counsel that notes, among 
other matters, that ``General counsel and other in-house 
counsel are often asked to serve their employers in a 
jurisdiction where they are not admitted to practice, whether 
such a practice is sanctioned by the local bar or not.''
    James Jardine, a prominent Salt Lake City attorney who 
served as Special Assistant to Attorney General Griffin Bell 
during the Carter administration, has described Mr. Griffith as 
``a skilled, thoughtful, experienced lawyer.'' One of Mr. 
Jardine's comments struck me as particularly relevant to Mr. 
Griffith's potential service on the bench. Mr. Jardine said, 
``He is extraordinarily thoughtful. His intelligence is 
tempered by his judgment.'' Now, that echoes our own colleague, 
Senator Christopher Dodd, who said that Mr. Griffith served 
here in the Senate ``with great competence and skill, 
impressing all who knew him with his knowledge of the law, and 
never succumbing to the temptation to bend the law to partisan 
ends.'' To me, that speaks volumes about the very qualities 
most important for judicial service.
    The D.C. Circuit has had three vacancies for some time. The 
position for which Tom Griffith has been nominated has been 
open for more than 5 years. This important court needs this 
good man to serve, and I hope the Senate will treat someone who 
has served among us with all the respect and dispatch that he 
deserves.
    Now, Mr. Chairman, I have known Tom Griffith for a long, 
long time. He is as fine a man as I know, and he has got 
judgment, ability, strength of character, is a great family 
man, and I think would be a great balancing force on the 
Circuit Court of Appeals for the District of Columbia and would 
work with Democrats and Republicans alike on that Committee to 
see that justice is done in a way that it should be done. And I 
just could not have a higher opinion of anybody that has come 
before the Committee. So I hope the Committee will act 
forthrightly and quickly on this nomination so that he can 
begin the service that I think all of us will benefit from.
    Thank you, Mr. Chairman, for allowing me to go forward.
    Chairman Specter. Thank you very much, Senator Hatch.
    Senator Bennett, we are going to spare you two opening 
statements and permit you to join in the introduction of Mr. 
Griffith to save you a little time, which I know you can use.
    Senator Leahy. Even though I know, of course, both Senators 
want to hear our opening statements, I absolutely concur with 
the Chairman. I have been in the position that Senator Hatch 
and Senator Bennett are, and you hear all the things, and I 
think as--I absolutely agree with you. As a matter of courtesy 
to two well-respected colleagues, we should allow them to go 
forward.
    Chairman Specter. Well, Pat, I am sure Senator Bennett will 
read the record and check on what we said.
    Senator Leahy. He can hardly wait.
    [Laughter.]
    Chairman Specter. Senator Bennett, the floor is yours. 
Thank you very much for coming, Senator Hatch.
    Senator Hatch. Thank you.

PRESENTATION OF THOMAS B. GRIFFITH, NOMINEE TO BE CIRCUIT JUDGE 
    FOR THE DISTRICT OF COLUMBIA CIRCUIT, BY HON. ROBERT F. 
         BENNETT, A U.S. SENATOR FROM THE STATE OF UTAH

    Senator Bennett. Thank you very much, Mr. Chairman and 
Senator Leahy. I appreciate your courtesy and your willingness 
to listen to a non-lawyer on this subject.
    My senior colleague has outlined in appropriate fashion the 
history and legal background of Tom Griffith and the 
qualifications that he brings to this particular nomination. I 
want to simply take you back to an experience through which we 
all went that is probably one of the truly historic moments in 
the history of the United States Senate. For only the second 
time in American history, we had an impeachment trial in the 
Senate, and I remember the session that was held in the old 
Senate chamber where the Senate got together without the 
benefit of television cameras to discuss this situation. And 
each side had its spokesman that talked about the situation in 
which we found ourselves, and it was not a surprise that the 
first spokesman on the Democratic side was Senator Byrd, who 
has a position as the Senate historian, who talks about the 
Senate as an institution about as well and thoroughly as 
anybody can.
    I remember very clearly Senator Byrd's comments about the 
case that was before us. I cannot guarantee that these were his 
exact words, and there was no record taken that I know of, so 
we will have to depend on my memory. But he spoke of the 
overall case as being toxic. And as I recall, he said it has 
dishonored the Presidency, it has stained the House of 
Representatives, and it is about to do the same thing to us; 
that the case was sufficiently toxic that everyone who came in 
contact with it was either dishonored or stained or otherwise 
marked by it. And it was his prediction that the Senate could 
not escape that stain.
    When the case was wrapped up by the Senate, there was 
almost universal agreement that the Senate had come through the 
experience unstained and not dishonored, that the Senate had 
handled it in a way that brought honor to the Senate and to its 
leaders. And I remember the moment when Senator Daschle and 
Senator Lott in the well of the Senate embraced and said, We 
did it, we got through this very difficult case without 
bringing dishonor to the institution. If anything, the 
institution's stature was increased.
    We all remember those days. They probably will show up in 
our various memoirs as the time comes for us to write them. And 
I go back to them because the man who stood at the juncture of 
that case where both sides would meet and talk about the legal 
problems was Tom Griffith. The man who helped advise both 
Senator Lott and Senator Daschle, the man who was present on 
both sides as difficult legal questions were asked, and who on 
occasion helped to calm down some of the stronger partisan 
impulses, was Tom Griffith. He has been tested by fire in a 
crucible that is unique. For anyone living in American history, 
no one else has had to go through that kind of pressure that 
requires judicial temperament and understanding of the law the 
way Tom Griffith did. And the way he handled that impressed 
this non-lawyer in such a way that I recall that experience 
here today before this Committee. I can think of no one who has 
demonstrated judicial temperament under pressure better than 
Tom Griffith has.
    And so, like Senator Hatch, I am delighted to remind the 
Committee that the President's lawyers in that difficult time, 
David Kendall and Lanny Breuer, have both endorsed this 
nomination. You would expect those of the current President's 
party to be supportive of Tom Griffith, but it is significant 
that those who were on the other side in that highly partisan 
atmosphere have also endorsed Tom Griffith. And I hope the 
Committee will keep that in mind as they make their decision. 
He obviously has my absolute and total support, and I offer it 
without qualification or apology. This is a man who has 
demonstrated that he has the capacity to fulfill the 
requirements of this job in a superb fashion.
    Thank you.
    Chairman Specter. Thank you very much, Senator Bennett. We 
appreciate your comments.

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE 
                        OF PENNSYLVANIA

    Chairman Specter. Mr. Griffith, if you will come forward, 
we will now have opening statements by myself and, in sequence, 
Senator Leahy.
    We welcome you here, Mr. Griffith, for this nomination 
hearing. I will be brief in my introduction because it has 
already been covered in large measure. I am particularly 
impressed by your being summa cum laude in your undergraduate 
days at Brigham Young University and being on the Law Review. I 
think academic achievement is very, very important. The record 
is already replete with your professional qualifications.
    Senator Bennett has given very substantial detail as to 
your contribution in the impeachment trial, and I think that 
was a very, very important public service. You were intimately 
involved in the litigation on the line-item veto, and you have 
been involved on Committee investigations, and you have a long 
list of sponsors who have come forward to speak on your behalf, 
which shows the nonpartisan flavor: Seth Waxman, a prominent 
Democrat; Glen Ivey, former counsel to Senator Daschle as 
Leader; David Kendall, personal counsel to the President; and 
many, many others. Perhaps a key accolade was paid to you by 
Senator Dodd when you got a bipartisan resolution of 
commendation when Senator Dodd said, ``During his tenure as 
legal counsel, Tom exemplified this philosophy, impressing all 
who knew him with his knowledge of the law, and never 
succumbing to the temptation to bend the law to partisan 
ends.'' And that is quite a tribute coming from Senator Dodd.
    There have been some issues which have been raised which 
the Committee will look into: the issue of late payment of 
dues, and I think that there are extenuating circumstances, as 
I have gone through the details of the record, but we will get 
into those details where your dues had been paid by your law 
firm and you expected them to continue to be paid; on one 
occasion, you were not notified of the dues, which was 
confirmed by the D.C. Bar Association; and an issue of Utah Bar 
membership, none of which goes to the essential qualifications 
of character or integrity or judicial temperament.
    I have maintained my membership in the New Jersey Bar, 
awaiting the return to private practice of law, and I worry 
every year I am going to miss the date. Sometimes I do.
    Senator Leahy. Don't we all. Not that you will return, but 
that we will all return.
    Chairman Specter. We have many, many things on our minds, 
and if you miss a date, it is not good, but it is not the end 
of the world. It does not involve character or integrity or 
judicial temperament, the hallmarks of a judge. And the 
confirmation process, which I have seen now for many, many 
years, has accommodated people who have made mistakes 
substantially more important, more serious than what we are 
dealing with here.
    There is a question about your interpretation of Title IX, 
and I do believe that there is a solid legal basis for what 
your interpretation has been on substantial proportionality 
based on the statute. And we will deal with that in the course 
of the hearing.
    Now I am delighted to yield to my distinguished Ranking 
Member, Senator Leahy.

  STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE 
                        STATE OF VERMONT

    Senator Leahy. Thank you, Mr. Chairman. Like you, I do also 
maintain my bar dues, both in Vermont and in the District of 
Columbia.
    When we last met as a Committee for a hearing on the 
nomination of Thomas Griffith to the D.C. Circuit, it was a 
somewhat unusual hearing during a very, very brief post-
election lame duck session of Congress, an unusual hearing of a 
controversial nominee to the second highest court in the 
country. I say unusual because we had a number of President 
Bush's nominees pending, relatively noncontroversial nominees, 
and had we show as much attention, we could have very easily 
put them through and confirmed these nominees of President 
Bush's. And I had urged the White House and the then Republican 
leadership in the Senate, but there seemed to be very, very 
little interest from either the White House or the Republican 
leadership for that kind of progress. It seemed almost that 
what the White House wanted to do is seek unnecessary 
confrontation over judicial nominees.
    Now, 4 years ago, we had a situation where Senate 
Republicans had abused their power. They stopped more than 60 
moderate and qualified judicial nominations of President 
Clinton's from being considered and confirmed. I find it 
interesting when I hear Judge Mikva, Abner Mikva, and Seth 
Waxman all being quoted here, and this is a reason to go 
forward. As I recall, when they were making similar suggestions 
to a number of nominees of President Clinton's, I don't recall 
my friends on the other side of the aisle quoting them. In 
fact, these nominees of President Clinton's, 61 of them, were 
subjected to, in effect, what has been called a ``pocket 
filibuster.'' Sixty-one of them were filibustered in that sense 
by not being allowed to go forward.
    But, nonetheless, I had a chance to become Chairman for 17 
months, and I urged the White House and Senate Republicans to 
work with all Senators to fill judicial vacancies, including 
some where the vacancy existed for year after year after year 
after year, because one or two Republican Senators would object 
to one of President Clinton's--or 61 of President Clinton's 
nominees and would not allow them to even have a vote.
    I said I really want to change this, and I pressed forward 
to put the Senate in position to confirm 100 of President 
Bush's lifetime appointments to Federal courts. We did this in 
17 months. It is actually a speed record. I don't know if 
either Republicans or Democrats have ever moved that fast on 
100. I thought we might hear something nice about it; instead 
we got vilification and personal attacks.
    One I still remember with some wry amusement, the White 
House-sponsored person went on a Sunday program saying we are 
not moving fast enough and it is because I was anti-Catholic. 
My press secretary, when asked about it, said, ``Well, the 
Senator was at Mass during that program and did not hear the 
comment,'' although the attack was continued by at least one 
senior member of this Committee, that senior member not Senator 
Specter, who was very happy to see all these judges of 
President Bush's going through.
    But I worry about is that during those 4 years the Senate 
Republican leadership abandoned its responsibilities to the 
Senate in this regard. They chose instead to be not an 
independent Senate but act like a wholly owned subsidiary of 
the White House in their effort to turn the Federal judiciary 
into an arm of a particular ideological wing of the Republican 
Party. I believe in an independent judiciary. I don't want it 
to be a wing of the Democratic Party or the Republican Party. I 
want it to be independent. But over the last 2 years, they have 
bent, broke, or ignored our traditional rules governing 
Committee consideration of judicial nominees. They are now 
talking about the so-called nuclear option to destroy the one 
Senate rule left that allows the minority any protection, in 
the several times I have been in the majority something I have 
strongly supported to protect the then Republican minority. If 
you change the rules to remove this, something that has allowed 
the Senate from the time of the beginning of this country to 
serve as a check on a powerful Executive--and I might note, for 
those who seem not to realize, that almost every President has 
had judges that they propose that have not gone forward. George 
Washington, beginning with George Washington, he had judges he 
proposed, and the Senate said no and that was it.
    But I say if you want to change this, you destroy the 
Senate. You undermine the independence and the fairness of the 
Federal judiciary, but you also roll back the checks and 
balances--checks and balances that all Americans rely on.
    Just last week, the new Senator from Colorado sent a letter 
to the President urging that we join in common cause on these 
matters. I mention this because he has voted for every single 
one President Bush's nominees. He suggested the President make 
a show of good faith by ratcheting down the conflict by 
withdrawing divisive judicial nominations on which the Senate 
has previously withheld its consent. It was a sensible 
suggestion that was rejected out of hand by the White House 
which seeks absolute authority and expects the Republican 
majority in the Senate to go in lockstep because they say so. 
It does undermine the checks and balances that have served us 
well for over 200 years.
    Now, unlike the many anonymous Republican holds and pocket 
filibusters that kept those 60 of President Clinton's qualified 
judicial nominees from moving forward, the concerns about Mr. 
Griffith are no secret. Mr. Griffith knows full well my concern 
that he has not honored the rule of law by practicing law in 
Utah for 5 years--I am not even going to go into the years in 
the District of Columbia where he practiced law without a 
license. I am talking about practicing law in Utah for 5 years 
without ever bothering to fulfill his obligation to become a 
member of the Utah Bar. I would assume the nominee has by now 
obtained a Utah driver's license and that he pays Utah State 
taxes. But even though he has been practicing law there since 
the year 2000, he is not a member of the bar.
    I will be interested to learn what steps Mr. Griffith took 
since our last hearing to take the Utah Bar examination 
recently held in February or to apply for the Utah Bar 
examination which I understand is scheduled for this summer. By 
one count, he has so far foregone ten opportunities to take the 
Utah Bar exam while applying for and maintaining his position 
as general counsel at Brigham Young University. This conscious 
and continuous disregard of basic legal obligations is not 
consistent with the respect for law we should demand of 
lifetime appointments to the Federal courts. He should have 
taken the bar. He should be a member of the Utah Bar.
    Practicing law without a license or, as the bar calls it, 
the unauthorized practice of law is not a technicality like 
forgetting to pay your bar dues. In fact, in some States it is 
a crime. In Texas, for example, it is a third-degree felony. It 
is a serious dereliction of a lawyer's duty.
    Now, it is a commonplace of American jurisprudence that no 
one is above the law. If the American people are to have 
confidence in our system of laws, that has to include the 
lawyers, and certainly without any question it has to include 
the judges. So I am hoping we are going to have better and more 
coherent and more forthright answers from Mr. Griffith about 
the problems with his bar membership, and I am sure he knows 
that those are questions he will be asked. I would expect those 
answers to start with a commitment to do what is now long 
overdue, namely, to take the Utah Bar exam and become properly 
licensed to practice law in Utah, where he has been practicing 
for the last 5 years.
    This hearing marks the third hearing on the President's 
controversial circuit court nominations in barely more than a 
week. Chairman Specter is affording some of these nominees, 
including Mr. Griffith, another opportunity to provide the 
Committee and the Senate with additional information and 
assurance that they have earned and merit the consent of the 
Senate to their lifetime appointment as a custodian of the 
rights of all Americans. I applaud the Chairman for that and I 
thank him for following the proper order of this Committee. But 
I must say that the lack of taking the bar exam is a matter of 
concern to me. I know that even to our State courts in Vermont, 
such a nomination would be rejected out of hand for doing that. 
But we have very high standards in our State.
    Mr. Chairman, I would ask consent to put my full statement 
in the record and also a number of letters and editorials.
    Chairman Specter. Without objection, they will be made part 
of the record.
    Senator Leahy. Thank you.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    Chairman Specter. Would you stand to take the oath? Do you 
swear that the testimony you will give before the Senate 
Judiciary Committee will be the truth, the whole truth and 
nothing but the truth, so help you God?
    Mr. Griffith. I do.
    Chairman Specter. Do you have family with you today?
    Mr. Griffith. I do not, Senator. My wife and three of my 
children are living in Utah. My wife is attending university, 
and my children are still in school. Some of them were able to 
come for my last hearing but not able to this time.
    Chairman Specter. In the absence of family, we welcome you 
to the Committee.
    Mr. Griffith. Thank you.
    Chairman Specter. Would you care to make an opening 
statement?

 STATEMENT OF THOMAS B. GRIFFITH, NOMINEE TO BE CIRCUIT JUDGE 
              FOR THE DISTRICT OF COLUMBIA CIRCUIT

    Mr. Griffith. I'll just be brief. I want to thank you, Mr. 
Chairman, for holding this hearing, and thank you, Senator 
Leahy, for coming.
    I want to thank the President of the United States who 
honors me with this nomination, and thank Senators Hatch and 
Bennett for the kind and generous comments they made.
    And I would also like to take this opportunity to say what 
a wonderful experience it is to be back here in the Senate 
where I have such wonderful memories of having served with all 
of you and your colleagues. I'm pleased to be here, anxious and 
willing to answer any questions that you might have of me.
    [The biographical information of Mr. Griffith follows:]

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    Chairman Specter. Mr. Griffith, why would you like to be a 
Federal judge? What is your interest in this public service?
    Mr. Griffith. Well, I'd start with the comment you just 
made, it's public service. I, as do all of you, love our 
country, love our Nation, and am anxious and desirous to be of 
service where I can be. As I mentioned, I'm honored that the 
President nominated me. I would like to be able to use the life 
experience I have, the legal training that I have to be of help 
to the Nation in this way in being in the Federal Judiciary.
    Chairman Specter. Give us your essentials of your legal 
background which you think qualifies you for the high position 
of Circuit Court Judge?
    Mr. Griffith. I've been a practicing lawyer since 1985 in a 
variety of contexts. I began my legal career, as was mentioned 
earlier, at a law firm in Charlotte, North Carolina, where I 
was extensively involved first in transactional work and then 
later in litigation experience.
    I came to Washington, D.C., which is my home, in 1989 and 
became associated with a prominent law firm in Washington, 
D.C., Wiley, Rein and Fielding. My practice there was primarily 
in litigation, litigation involving complex transactions, 
complex commercial disputes in a regulatory environment. I was 
made a partner at that law firm, and then in 1995 was chosen by 
the United States Senate to be its Senate legal counsel.
    In that capacity, as Senate legal counsel, I represented, 
along with the other--I was the head of the office. There were 
other marvelous lawyers in the office, and I succeeded one of 
the finest lawyers I've ever met, Michael Davidson.
    Chairman Specter. Never mind, Mr. Davidson, let's talk 
about you.
    Mr. Griffith. Okay.
    Chairman Specter. Has there ever been a challenge to your 
character or integrity?
    Mr. Griffith. There has not, Senator.
    Chairman Specter. How about your judicial temperament? We 
heard lofty praise from Senator Hatch, who has great 
credibility with this Committee, about your judicial 
temperament during the impeachment proceedings. I remember 
those very well. Could you give us a specific illustration as 
to how you brought the parties together, because it was not all 
sweetness and light.
    Mr. Griffith. It wasn't, and I need to be delicate here. 
Many of the things in which I was involved involved the 
attorney client privilege. But having said that, to me the 
greatest challenge of the impeachment proceeding, and also it's 
great opportunity, was that you had all of the branches of 
Government represented with very different interests, and--
    Chairman Specter. Would you say there was a lapse in your 
work as legal counsel when you failed to give me advice not to 
cite Scottish law?
    [Laughter.]
    Mr. Griffith. If you say it was a lapse.
    Chairman Specter. I withdraw that question, Mr. Griffith.
    [Laughter.]
    Mr. Griffith. Thank you, thank you. I actually remember the 
conversation well, but if you want to waive the privilege.
    Chairman Specter. Mr. Griffith, onto your District of 
Columbia bar dues. What is that all about?
    Mr. Griffith. Well, I made a mistake, and I want to make it 
clear that it was my mistake and no one else's mistake. The 
mistake I made was that in the first instance I relied on the 
D.C. Bar to send me notices of when my bar dues were paid. I 
shouldn't have done that.
    Chairman Specter. Did you fail to pay those dues willfully?
    Mr. Griffith. No, not at all.
    Chairman Specter. Try to save all that money, Mr. Griffith?
    Mr. Griffith. No, I did not. I was unaware that my bar 
membership had been administratively suspended for failure to 
pay dues.
    Chairman Specter. How about your Utah Bar membership? The 
record has references to your close association with other 
members of the bar. What happened exactly with respect to that 
issue?
    Mr. Griffith. Senator, thank you. I'd be happy to try and 
clarify your understanding of that. It is the practice of the 
Utah Bar Association, as is set forth in letters that this 
Committee has received, that in-house counsel in Utah need not 
be licensed in Utah provided they are closely associated with 
active members of the Utah Bar and make no court appearances. 
That's precisely how I have governed my dealings at the 
university since I arrived in August 2000. There are now five 
attorneys in the office. The other four attorneys are active 
members of the Utah Bar. And I have been very careful since I 
arrived there not to participate in giving any legal advice or 
the practice of law in any form or fashion unless I am involved 
with one of these attorneys.
    Now, I didn't do that simply because that's the requirement 
of the Utah Bar. I also did that because that's the way I 
practice law. My client, the university, will always be better 
served if my opinion represents a collaborative effort with 
other lawyers, and in our office we do that all the time. 
Everyone's door is open. We're in and out of each other's 
office. We collaborate a great deal.
    So there's no legal advice. There's no activity in which 
I've been engaged in the practice of law since I've arrived at 
the university that has not involved other lawyers. Again, I 
did that because that's the best practice, and also be it's 
consistent with the Utah Bar's approach to how in-house counsel 
should conduct their affairs.
    Chairman Specter. Senator Leahy.
    Senator Leahy. Let us go back to this. My opening 
statement, which you heard, I just want to make sure I was 
correct in some things I said I there. Now, since moving to 
Utah 5 years ago, the summer of 2000, have you gotten a Utah 
driver's license?
    Mr. Griffith. Yes, sir, I do.
    Senator Leahy. Do you pay Utah State taxes?
    Mr. Griffith. I do.
    Senator Leahy. Now, in your answers to our written 
questions, you state plainly you practiced law in Utah since 
the beginning of your responsibility at BYU in 2000. And now 
you have admitted in the Utah law there is no general counsel 
or in-house counsel exception to the Utah law that says one has 
to be licensed in Utah to practice law in Utah. You further 
agree there is no exception in law for those who closely 
associate themselves with Utah licensed lawyers. I have looked 
at the law. I have looked at the regs. I have looked at Supreme 
Court decisions. I find no general counsel, no in-house 
counsel, no closely associate kind of exception.
    The question I have is this: since you accepted the job at 
BYU there have been 10 opportunities, including just last 
month, to take Utah Bar. Have you taken it?
    Mr. Griffith. I have not, Senator.
    Senator Leahy. The deadline for submitting an application 
for next July's administration of the Utah Bar was a week ago 
last Tuesday, March 1st. Did you submit an application?
    Mr. Griffith. No, sir.
    Senator Leahy. There is time to get a late application by 
next Tuesday, the 15th. Are you going to send in an 
application?
    Mr. Griffith. I'm not planning on doing that, Senator.
    Senator Leahy. How about April 1st? That is the absolute 
last date you can do for July?
    Mr. Griffith. I'm not planning on taking the Utah Bar in 
July.
    Senator Leahy. Let me make sure I understand. You practice 
law in Utah, you are a general counsel. Utah law, as written by 
the Utah State Legislature, interpreted by the Utah Supreme 
Court, not some letters from some past bar association person, 
but the Utah law written by the Utah State legislature and 
interpreted by the Utah Supreme Court, says you have to be a 
member of the Utah Bar if you practice law in Utah. There are 
no exceptions. To be a member of the Utah Bar you have to take 
the examination. You have not taken it, you have no plans to 
take it. Are you saying that even though there is no statutory 
case law, somehow somebody is empowered to create an exception 
to permit you to practice law in Utah indefinitely without ever 
being licensed in Utah? It is kind of an interesting exception.
    Mr. Griffith. Thank you for giving me the opportunity to 
clarify my understanding of this, Senator Leahy. It's my 
understanding that it has been the consistent practice of the 
Utah Bar for years now to treat in-house counsel in a way that 
in-house counsel is not required to be licensed in Utah 
provided they are closely associated with Utah lawyers and they 
make no court appearances. That was my--
    Senator Leahy. Did you find anything in the statute or case 
law that says that?
    Mr. Griffith. No. This is the interpretation of the Utah 
Bar of the statutes--
    Senator Leahy. Find anything in the statute yourself or the 
case law that says that?
    Mr. Griffith. I'm not aware of--
    Senator Leahy. Because we cannot find anything. Do you know 
people that practicing law that way in Utah?
    Mr. Griffith. I am told that it is very common practice in 
Utah--
    Senator Leahy. Do you know any of these people?
    Mr. Griffith.--that in-house counsel--I know of some, and 
I've heard of others. I have not take--
    Senator Leahy. But you do not find anything in the statute 
or the case law that says you can do that?
    Mr. Griffith. No. I know of nothing in the statute that 
allows that.
    Senator Leahy. That is kind of a activist interpretation, 
is it not? Or--
    Mr. Griffith. May I respond?
    Senator Leahy. I mean I just like to say, see some of the 
activist judges, judicial nominees come up.
    Mr. Griffith. I'm relying on the view of the Utah Bar about 
the rules that govern the practice of law in Utah.
    Senator Leahy. I think I would rely on the statute and the 
case law.
    You know, throughout our history we have had judges who 
stood up to proper sentiment, and they protected minorities or 
people whose views made them outcasts, pariahs. Have you ever 
had an instance in your professional career where you took an 
unpopular stand or represented an unpopular client and stood by 
them under pressure?
    Mr. Griffith. Yes, sir, a number of occasions.
    Senator Leahy. Tell me, please.
    Mr. Griffith. One that I believe is referred to in the 
Senate Judiciary Committee questionnaire was while an associate 
at Wiley, Rein and Fielding in Washington, D.C., I along with 
several other of the associates took on an American Bar 
Association pro bono death penalty project. We represented an 
inmate in the Virginia Correctional system who had been accused 
of committing murder while he was in the prison system. My 
firm--and I was one of the lawyers who took an active role in 
his representation through the habeas proceedings. My role 
after the hearing changed in that I was in charge of what we 
referred to as the pardon strategy for this death row inmate. 
We fortunately saw that strategy through to a successful 
conclusion, as the Governor of the State of Virginia commuted 
his sentence. That's one example.
    When I was in North Carolina I was involved in pro bono 
projects with the local bar association there, representing 
disadvantaged students who had been suspended from their high 
schools and were entitled to representation in the due process 
hearings. So those are a couple of examples.
    Senator Leahy. I appreciate it.
    Mr. Chairman, my time is up. I just want to put in the 
record the name of university general counsel, the general 
counsel--
    Chairman Specter. Chairman Leahy, take whatever additional 
time you would like.
    Senator Leahy. I appreciate the courtesy of the Chairman, 
but I want to put in the record John Morris, who is the General 
Counsel at University of Utah; Craig Simpler, University 
Counsel for Utah State University; Kelly DeHill, the General 
Counsel at Westminster College; and Mr. Griffith's predecessor, 
Eugene Bremhall, who was General Counsel for 20 years at BYU. I 
just put those names in the record because they were all 
members of the Utah Bar.
    Chairman Specter. Thank you very much, Senator Leahy.
    Senator Hatch.
    Senator Hatch. Mr. Griffith, as you know, statute 
interpretations vary according to the statute; is that correct?
    Mr. Griffith. That's correct.
    Senator Hatch. I might interpret a statute differently from 
you; is that right?
    Mr. Griffith. I'm certain you would.
    Senator Hatch. One member of the bar might interpret a 
statute differently from other members of the bar; is that 
correct?
    Mr. Griffith. That's correct.
    Senator Hatch. Matter of fact, as I understand it, five 
presidents of the bar said that you did not practice law in an 
unauthorized fashion in the State of utah.
    Mr. Griffith. That's my understanding. I've seen that 
letter.
    Senator Hatch. I have too, a number of whom were Democrats. 
I might add that is Brigham Young University purely a Utah 
institution?
    Mr. Griffith. No. Brigham Young University is among the 
largest private universities in the Nation. I believe it's the 
largest private religious university in the Nation. We have 
campuses throughout the world, quite literally. We have a 
presence in Israel. We have a presence in England. We have 
presence in many of the United States. Washington, D.C. we have 
a campus; in Illinois we have a campus. Until last year we had 
a campus in Hawaii that reported directly to the campus where 
I'm located in Provo. And then we have students--we have one of 
the largest international travel study programs in the world, 
so on any given day, we have students quite literally all over 
the world. So it's a very large international presence.
    Senator Hatch. I take you did not go and take the bar 
examinations in any of those areas either?
    Mr. Griffith. I did not.
    Senator Hatch. In other words, BYU is an international 
institution, as well as an institution within the State of 
Utah?
    Mr. Griffith. That's correct, Senator.
    Senator Hatch. The bulk of its students are in the State of 
Utah?
    Mr. Griffith. Yes. The campus in Provo has about 30,000 
students.
    Senator Hatch. But there are thousands of others outside of 
Utah?
    Mr. Griffith. That's correct.
    Senator Hatch. And approximately half of the students in 
Utah come from other States; is that correct?
    Mr. Griffith. I believe that's right. I haven't seen those 
numbers lately, but our student body comes from all 50 States 
and around the world.
    Senator Hatch. When you said you practiced law in Utah, 
what did you mean by that?
    Mr. Griffith. Well, the title of my position is Assistant 
to the President and General Counsel, and as General Counsel I 
supervise an office of four other attorneys, and we represent--
    Senator Hatch. And what bar do they belong to?
    Mr. Griffith. They belong to the Utah Bar.
    Senator Hatch. In other words, all four of those attorneys 
belong to the Utah bar?
    Mr. Griffith. That's correct.
    Senator Hatch. Did you ever make a decision that really 
affected purely Utah law without the advice and help of those 
four attorneys?
    Mr. Griffith. No, sir, I've never done that.
    Senator Hatch. Did you ever try to practice in Utah without 
the advice or help of those attorneys or even with their advice 
or help?
    Mr. Griffith. No. I've always included them in 
collaborative analysis.
    Senator Hatch. Whenever a Utah issue came up, did you try 
and handle it personally or did you have the Utah lawyers have 
it?
    Mr. Griffith. Had the Utah lawyers handle it. Very little 
of what I do on a day-in and day-out basis involves Utah law.
    Senator Hatch. Then it is true that your job is to 
basically function as an overall wise lawyer to give advice to 
the president of the university.
    Mr. Griffith. That's part of my responsibility. My 
responsibility is also broader than that. Most of what I do is 
lawyering, but a good deal of what I do is act as a university 
administrator in a number of capacities.
    Senator Hatch. Were you born and raised in Utah?
    Mr. Griffith. Excuse me?
    Senator Hatch. Were you born and raised in Utah?
    Mr. Griffith. No. I was born in Yokohama Japan, and was 
raised in McLean, Virginia.
    Senator Hatch. Have you ever been in Utah other than the 
time that you have been there at the Brigham Young University?
    Mr. Griffith. When I was studying there as an 
undergraduate, but even then I was a resident of Virginia, but 
I've become a resident of Utah since August of 2000.
    Senator Hatch. Did you intend to stay there the rest of 
your life at the Brigham Young University, assuming that you 
had not been asked to be a Federal judge?
    Mr. Griffith. You know, Senator, I hadn't thought that far 
ahead. My life has been done in about four- or 5-year 
increments. If I were, there's no question that I--as I've 
stated in my written, answers to the written questions, that I 
intend to become a member of the Utah Bar if I stay in Utah.
    Senator Hatch. As I understand it, you did not expect to 
become a member of the Utah Bar because you did not expect that 
your whole lifetime would be spent in Utah.
    Mr. Griffith. Yeah. Well, the primary reason I haven't 
become a Utah Bar is I don't need to become a member of the 
Utah to practice--to carry out my responsibilities at the 
university. Were I to stay in Utah I would be interested in 
joining the Utah Bar. I believe in bar associations. I believe 
in the good that they can do, and I would like to participate 
and be helpful in that way. But that's a different question of 
whether it's necessary to do so to carry out my 
responsibilities at the university.
    Senator Hatch. Mr. Chairman, my time is up, but let me just 
read from the letter of the five members of the Utah Bar. I 
will just read part of it. ``While there is no formal `general 
counsel' exception to the requirement that Utah lawyers must be 
members of the Utah bar, it has been our experience that a 
general counsel working in the State of Utah need not be a 
member of the Utah bar provided that when giving legal advice 
to his or her employer that he or she does so in conjunction 
with an associated attorney who is an active member of the Utah 
bar and that said general counsel makes no Utah court 
appearances and signs no Utah pleadings, motions or briefs.''
    You are familiar with that?
    Mr. Griffith. I am, Senator.
    Senator Hatch. And you never did any of those things?
    Mr. Griffith. That describes precisely how I've organized 
my affairs since arriving in Utah in August of 2000.
    Senator Hatch. Thank you, Mr. Chairman.
    Chairman Specter. Thank you very much, Senator Hatch.
    Senator Feingold.
    Senator Feingold. Thank you, Mr. Chairman.
    Senator Leahy. Is that the same letter where they say they 
do not opine whether he lives up to the standard?
    Senator Hatch. Well, I do not think they could, because 
they did not follow every movement. But the fact is that the 
five bar association members have been astounded that anybody 
would raise this.
    Senator Leahy. You do not have to be defensive. I am just 
asking.
    Senator Hatch. I am defensive about it.
    Senator Leahy. Can we put the letter in the record, Mr. 
Chairman?
    Senator Hatch. I will. I will put it in the record.
    Chairman Specter. And still it is Senator Feingold.
    Senator Feingold. Thank you, Mr. Chairman.
    Mr. Griffith, welcome to the Committee.
    Mr. Griffith. Thank you, Senator.
    Senator Feingold. Your nomination to the D.C. Circuit has 
been and remains quite controversial. Perhaps most 
significantly it appears that you failed to follow the rules of 
two different bar organizations. Unfortunately, the timing of 
your hearing last fall left many member, including myself, 
without a meaningful opportunity to question you. And instead I 
provided you with a number of written questions, and I was 
hoping to have a chance now to clarify several of your 
responses concerning this same issue, the practice of law in 
Utah without a law license.
    As has become clear through this nomination process, you 
have not been a member of the Utah Bar since you became general 
counsel at BYU in 2000. However, you received strongly-worded 
guidance from the general counsel of the Utah State Bar 
directing you to take the Utah Bar examination. In a May 14th, 
2003 letter, Katherine Fox, general counsel, Utah State Bar, 
told you that Utah does not and has never had a ``general 
counsel'' exception to its licensing requirements. She wrote 
that it was both ``unfortunate'' that you had delayed taking 
the Utah Bar and suggested steps you could take to act as 
general counsel until you took the Utah Bar exam. The letter 
stated, ``Towards that end it would be a prudent course of 
action to limit your work to those activities which would not 
constitute the practice of law.'' She continued, ``If such 
activities are unavoidable, I strongly urge you to closely 
associate with someone who is actually licensed here and on 
active status.'' Finally she ended her letter by warning you 
that applicants have been denied admission to the bar for 
issues regarding the unauthorized practice of law.
    In light of Ms. Fox's letter, I was surprised to learn that 
you took no steps whatsoever to document you complied with her 
advice. Would you explain to this Committee why you took no 
steps to document your work in a manner that would allow you to 
explain to the Utah bar that your arrangements did not 
constitute practicing law without a license?
    Mr. Griffith. Thank you, Senator. I believe the answer that 
I gave to that, that I took no steps to document it because the 
end of the answer is every person in my office and every person 
that I deal with at the university knows how I do things, and I 
do things in close collaboration with other attorneys. Any of 
the lawyers in my office can attest to that.
    I believe another related question was what do you do to 
make certain you can comply with that? And I think I've 
answered that, at least in part. The other is I collaborate 
with my colleagues in my office. There isn't a single legal 
matter on which I have been involved since I've arrived at the 
university that has not involved a collaborative effort with 
one of the other members of the Utah bar.
    Senator Feingold. It would be my thought if a letter like 
that came in that documentation would be a good idea. But let 
me turn to this. In response to my written questions, you wrote 
that you did not recall telling any outside counsel you worked 
with during your tenure at BYU that you were not a member of 
the Utah bar. However, the Utah code states that you may not 
practice law or assume to act or represent yourself as a person 
qualified to practice law within the State if you are not 
licensed to practice within the State. Did you ever inform 
outside counsel for BYU, opposing counsel or employees that you 
advised that you were not admitted to practice law in Utah and 
that you could do only legal work in a very limited--you could 
only do legal work in a very limited manner?
    Mr. Griffith. I don't recall whether I had discussions with 
our outside counsel. They're certainly aware of it now. But all 
of the lawyers in my office were aware of it, the president of 
the university was aware of it. At the time the university 
posted its notice of a job vacancy as general counsel, the 
conscious decision was made that the general counsel need not 
be a member of the Utah bar. The president of the university 
was well aware of that. He and I, both presidents under whom 
I've served, have discussed this. I make those who I work with 
at the university aware of that. And the way I practice law is 
to always be involved with another member of the office.
    Senator Feingold. I hear your answer with regard to the 
university and the general information, but my question was did 
you ever inform outside counsel for BYU, opposing counsel or 
employees that you were not admitted to practice law in Utah, 
and I take your answer as no, because you do not recall any 
example of--
    Mr. Griffith. I don't recall having a specific discussion 
with outside counsel, but I do know that all of the outside 
counsel that I listed in the answer is aware of that. They know 
that.
    Now, with regard to--you also asked about opposing counsel. 
I don't recall any instance where I told opposing counsel that. 
Now, the nature of my practice is very rarely am I involved 
with opposing counsel. My responsibilities are largely advising 
the university president we have lawyers in our office who take 
the laboring oar on transactional work with those outside the 
university and with litigation matters. And to be sure I 
supervise them, and on occasion I have dealt with opposing 
counsel, but that's not something that happens with great 
frequency.
    Senator Feingold. Thank you. I seem my time is up, but it 
is very clear from the answer that I asked repeatedly did the 
nominee ever inform--
    Chairman Specter. Senator Feingold, if you need some more 
time, go ahead.
    Senator Feingold. I just want to comment quickly. That did 
the nominee ever inform anyone of the fact that he was not 
admitted to the bar, his response has consistently been they 
somehow knew. That was not the question, and that is not the 
obligation in my view based on his status as a person not 
admitted to the Utah bar.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Feingold.
    Senator Leahy has advised that he may submit some questions 
for the record.
    Senator Leahy. I will submit mine for the record.
    Chairman Specter. Anybody else have any questions?
    Senator Hatch. Could I just add this little bit to this? I 
think it is important. The ABA has reviewed all of this and has 
rated you qualified. Monroe Friedman, who is considered a 
recognized expert on legal ethics, has expressed his opinion 
that your actions were appropriate under the circumstances. 
Among other things Professor Friedman noted that, ``In Utah Mr. 
Griffith's bar status was known to Brigham Young University, 
the only client for whom he did work as a lawyer. His legal 
work there was always in association with one or more members 
of the Utah bar, and he has never appeared in court.'' So he 
found that.
    And then finally, let me just close, Mr. Chairman, with a 
letter which I will put in the record from Abner J. Mikva, who 
of course is one of our former colleagues in the House of 
Representatives, and who was on this very Circuit Court of 
Appeals. I will just read part of it. ``Tom Griffith will be a 
very good judge. I have worked with him indirectly while he was 
counsel to the Senate and more directly as a major supporter of 
CEELI, the Central and Eastern European Law Initiative of the 
American Bar Association. Tom was an active member of CEELI's 
advisory board, and he and I participated in many prospects and 
missions on behalf of CEELI. I have always found Tom to be 
diligent, thoughtful and of the greatest integrity. I think 
that the bar admission problems that have been raised about him 
do not reflect on his integrity. Rather, they appear to be 
understandable mistakes and negligence which cannot be raised 
to the level of ethical behavior. Tom has a good temperament 
for the bench, is moderate in his views and worthy of 
confirmation.'' So I just put that in the record.
    And just one last question. During your whole time at 
Brigham Young University you always had the advice of those 
four Utah lawyers on every Utah issue?
    Mr. Griffith. Not just on every--yes, on every Utah issue 
and on every legal issue that I was involved with.
    Senator Hatch. Thank you, Mr. Chairman. That is all I have.
    Senator Leahy. Mr. Chairman, if I might, and I am sure this 
was simply an oversight on the part of Senator Hatch when he 
spoke of the bar association finding of qualified. Actually, 
they did not all find you qualified. Some found you not 
qualified. Why do you think that some in the bar association, 
the ABA, when they made the listing on you, why do you think 
there were some who found you not qualified? Do you think it is 
because you were not a member of the bar, or do you think they 
had another reason?
    Mr. Griffith. Senator Leahy, I have no idea. All I know is 
the letter that was sent to the Committee finding that a 
majority found me qualified. I don't know the reason for it.
    Senator Leahy. I understand, and the majority did, minority 
found you not qualified. Did they give--in their questioning of 
you did you get any indication that the not-qualified--because 
you have had quite a background as a lawyer. Did you get the 
indication that the not qualified referred to your failure to 
be a member of the bar or they had some other reason?
    Mr. Griffith. Senator, I don't know the reason for it.
    Senator Leahy. The other four lawyers in your office, were 
they required to be members of the Utah bar? I know they are 
members of the Utah bar. By your interpretation are they 
required to be members of the Utah bar?
    Mr. Griffith. They would not need to be. We'd need to have 
some who are, but as in-house counsel in Utah, they would not 
need to be members of the Utah bar provided they were closely 
associated with some who were.
    Senator Leahy. There are five of you there. Are you saying 
all five could be non-members of the Utah bar provided--
    Mr. Griffith. Oh, no.
    Senator Leahy. Provided when they actually did something, 
somebody who was a member of the Utah bar walked in and gave 
their imprimatur to it?
    Mr. Griffith. No. No, I'm sorry if I gave that impression. 
I didn't mean to give that impression. With the five lawyers in 
our office, it's my understanding of the interpretation of the 
Utah bar that provided that they are closely associated with 
members of the Utah bar--and the way I understand that would be 
that we have Utah lawyers in our office working on all those 
matters.
    Senator Leahy. How many of the five then would have to be?
    Mr. Griffith. You know, I haven't thought about that, 
Senator.
    Senator Leahy. Why do you not think about it and let us 
know?
    Mr. Griffith. Okay, I will.
    Senator Leahy. Thank you.
    Senator Hatch. Mr. Chairman, if I could just add one thing. 
I am a member of the Utah bar. I do know that the five 
presidents were right, and you had advice. And I do know the 
integrity of Tom Griffith, and I personally resent anybody who 
takes your integrity and smashes it or tries to. So all I want 
to say is that you have stated it correctly. Abner Mikva stated 
it correctly. Monroe Friedman stated it correctly. And frankly, 
BYU is an international institution, and there was no requisite 
for you to have to take the bars in all the States in which it 
does business, nor would there be of any corporate general 
counsel. And Utah is not so far behind that the corporate 
general counsel will have to take the bar in Utah. It is 
strictly up to the individual.
    And so I just hope everybody will take all that into 
consideration and allow this good man to serve because I know 
he will be a very good judge on that particular bench. With 
that I will close.
    Chairman Specter. We will keep the record open for one 
week. It will close 6:00 o'clock on Tuesday, March 15th.
    Just one final note, Mr. Griffith, with some risk on 
prolonging this. I note that you participated in a successful 
effort to save a Virginia death row inmate who was serving a 
life sentence for a 1981 murder of a woman in suburban D.C., 
and sentenced to death for the 1985 murder of a fellow inmate. 
That is a little different dimension to your professional 
background generally. How did you happen to undertake that kind 
of a case?
    Mr. Griffith. I was an associate at my law firm, and I 
believe strongly in the need for lawyers to be involved in pro 
bono projects, and so I was quite interested in that one. I 
believe strongly that lawyers have a duty and an obligation 
because we have been so blessed and we're so fortunate in this 
country, that lawyers have a duty and an obligation to help out 
those who are far less advantaged, to those who have been left 
out and left behind. And so when the project came along, I 
expressed great interest in it, and then particularly when I 
got into the facts of it and was convinced that here was a man 
who had been unjustly accused of what he was doing, it moved 
beyond duty there--
    Chairman Specter. Unjustly accused, you thought he was 
innocent?
    Mr. Griffith. I believe he was actually innocent.
    Senator Leahy. Mr. Chairman, one of the reasons I asked Mr. 
Griffith about his pro bono work, he does have an impressive 
background in that. I totally agree with him that lawyers 
should do that. We are a privileged class. The law firm I first 
served in, a crusty curmudgeon was general counsel and told 
everybody we had better be doing pro bono work, and he insisted 
on it, and he made it possible for some of us young lawyers who 
could not have afforded to do it on our own, he made it 
possible that he would do it. I totally agree. I find it very 
difficult to support nominees for anything who have been 
lawyers who have not done pro bono. I know all of us have and I 
think it is important.
    Chairman Specter. Thank you, Senator Leahy.
    I thought it was an interesting aspect of your professional 
record. You are reputed to be firmly ensconced on one status of 
the political spectrum--I think frequently we overdo that--and 
to have you go in for a man convicted of two first degree 
murders, that is an unusual line, especially for you to come to 
the conclusion that the defendant was innocent.
    That concludes the hearing. Thank you all very much.
    Mr. Griffith. Thank you.
    [Whereupon, at 10:44 a.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]

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