[Congressional Record Volume 151, Number 78 (Tuesday, June 14, 2005)]
[Senate]
[Pages S6427-S6438]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
NOMINATION OF THOMAS B. GRIFFITH TO BE UNITED STATES CIRCUIT JUDGE
The PRESIDENT pro tempore. Under the previous order, the Senate will
proceed to executive session to resume consideration of Calendar No.
66, which the clerk will report.
The legislative clerk read the nomination of Thomas B. Griffith, of
Utah, to be United States Circuit Judge for the District of Columbia
Circuit.
Mr. FRIST. Mr. President, in a few moments, we will be voting on Tom
Griffith's nomination to the D.C. Circuit Court. Tom Griffith is a man
of deep integrity, a man of skill, a man of experience who has won the
respect and admiration of colleagues all across the political spectrum.
I am confident that once approved, Mr. Griffith will serve the D.C.
Circuit Court with honor and distinction.
Mr. Griffith graduated summa cum laude from Brigham Young University.
He earned his law degree from the University of Virginia Law School
where he served on the Law Review.
Over the course of his legal career, Mr. Griffith has developed a
broad range of experience from civil and criminal law to regulatory and
international issues. Mr. Griffith currently serves as assistant to the
president and general counsel of Brigham Young University.
As Senate legal counsel during the impeachment trial of President
Clinton, Mr. Griffith proved his ability to fairly and impartially
interpret the law. David Kendall and Lanny Breuer, special counsel to
President Clinton, wrote to the Washington Post:
Tom has been a leader in the bar and has shown dedication
to its principles. The Federal bench needs judges like Tom.
Glen Ivey, former counsel to former Senate minority leader Tom
Daschle, testified that during the Senate's Whitewater and campaign
finance reform investigations, Mr. Griffith was scrupulous. Mr. Ivey
says:
Even when we were handling sensitive and politically
charged issues, he acted in a nonpartisan and objective
manner. I believe Mr. Griffith has the intellect and
temperament to make an outstanding jurist.
Tom Griffith is a dedicated public servant of tremendous ability. Two
former presidents of the American Bar Association call Mr. Griffith
``extremely well qualified for service on the D.C. Circuit.'' They
write:
The Federal bench needs people like him, one of the best
lawyers the bar has to offer.
Senator Hatch has said that in all of his years in the Senate, he has
never
[[Page S6428]]
seen such a broad outpouring of support for a nominee from so many
distinguished individuals on both sides of the aisle.
Senator Dodd says:
Tom 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.
In that spirit, I urge my colleagues to vote in a few moments to
confirm Tom Griffith to the D.C. Circuit Court.
I am pleased by the bipartisan progress we are making in the judge
confirmation process. In the last 3 weeks alone, we confirmed Priscilla
Owen to the Fifth Circuit Court of Appeals, Janice Rogers Brown to the
D.C. Circuit Court of Appeals, William Pryor to the Eleventh Circuit
Court of Appeals, David McKeague to the Sixth Circuit Court of Appeals,
and Richard Griffin to the Sixth Circuit Court of Appeals. I now look
forward to Tom Griffith being added to this outstanding list of
confirmations.
Let us continue on this path of progress and cooperation. I believe
it is our constitutional duty and responsibility to vote. We are doing
so. Our constituents expect us to do just that--vote. Every nominee
deserves the respect of a vote, fair, civil, up or down. That is what
we will be doing today.
Mr. President, I yield the floor.
The PRESIDENT pro tempore. The Senator from Vermont.
Mr. LEAHY. Mr. President, I am glad to hear the distinguished leader
say nominees deserve an up-or-down vote. Of course, he and other
Republicans assured that 61 of the judicial nominees of President
Clinton were not given a vote. They were subjected to pocket
filibusters--61. In fact, this nomination is a measure of the double
standards used by Republicans in connection with judicial vacancies.
During President Clinton's Presidency, Senate Republicans said the 11th
and 12th judgeships to the D.C. Circuit were not to be filled, that we
did not need those seats. They had argued since 1995 that the caseload
of the D.C. Circuit did not justify a full complement of the court.
Indeed, at a hearing in 1995, Republicans called Chief Judge Laurence
H. Silberman of the circuit to testify against proceeding to fill
vacancies on the D.C. Circuit. Republicans have argued for years this
circuit's caseload per judge is one of the lightest in the country. In
a May 9, 2000, letter, Judge Silberman argued that the D.C. Circuit's
caseloads had continued to decline from 1995 to 2000, and he opposed
confirmation of additional Clinton nominees. In fact, the D.C. Circuit
caseload has continued to decline and in 2004 was lighter than it was
in 1999 when Senate Republicans pocket filibustered two highly
qualified and moderate nominees by President Clinton to vacancies on
that circuit.
Now with the confirmation of Janice Rogers Brown to the court last
week, there are 10 confirmed, active judges on the D.C. Circuit, which
is what Republicans have always maintained is the most that circuit
should have. Now, of course, we find we have another one.
With all the self-righteous talk from the other side of the aisle
about their new-found ``principle'' that ever judicial nominee is
entitled to an up-or-down vote, the facts are that the nominations of
Allen Snyder and Elena Kagan to the D.C. Circuit were pocket
filibustered by those same Senate Republicans in 1999 and 2000. Ms.
Kagan is now Dean of the Harvard Law School. Qualified? Undoubtably.
One of the most qualified people to be nominated to that court in the
31 years I have been in the Senate. Was she given consideration in a
Republican-led Senate? Not on your life. She was filibustered by
Republicans. Likewise, the nomination of Allen Snyder, former clerk to
Chief Justice Rehnquist and a highly respected partner in a prominent
D.C. law firm, was pocket filibustered by Senate Republicans. When one
of Mr. Synder's partners, John Roberts, was nominated to the same court
by President Bush, he was, of course, unanimously supported by Senate
Republicans. Senate Republicans played a cruel joke on Mr. Snyder when
they allowed him a hearing but then went on to refuse to list him for a
vote by the Judiciary Committee or the Senate.
I recall that in September 2000, Senator Sessions explained that
Clinton nominees Allen Snyder and Elena Kagan were blocked: ``Because
the circuit had a caseload about one-fourth the average caseload per
judge. And the chief circuit judge said 10 judges was enough, instead
of 12. And I actually thought that was too many. I thought 10 was too
many.'' So this Republican Senator joined in the pocket filibuster of
these two nominees.
Well, the D.C. Circuit's caseload per judge is lower now than it was
during the Clinton administration, but suddenly with a Republican
President, Republican Senators say we need to fill those seats. It is a
bit hypocritical. Let us see whether the votes of Republican Senators
this time will be based on the same rationale they gave in inflicting
pocket filibusters on Clinton nominees.
Last week we witnessed a Republican Senator--who had voted against
the confirmation of a Clinton judicial recess appointment and had
explained his vote as representing his opposition to
recess appointments reverse himself to vote for a Bush judicial recess
appointment.
Last week, we witnessed dozens of Republican Senators--who voted
against confirmation of Ronnie White of Missouri in 1999 and had
explained their vote as compelled by the opposition of his home-state
Senators--reverse themselves and vote in favor of Justice Janice Rogers
Brown and ignore the strong, consistent and well- founded opposition of
her two home-state Senators.
Ronnie White, now the first African American to be chief justice of
the Supreme Court of Missouri, was turned down by a double standard
used by Republicans. I wonder whether the many Republicans Senators who
delayed and opposed the confirmation of Merrick Garland in 1996 and
1997 and pocket filibustered the nominations of Allen Snyder and Elena
Kagan in 1999 and 2000 will vote against a nominee to the D.C. Circuit
because the caseload of the circuit does not justify more judges. We
will see if Republican Senators again abandon their earlier rationale.
It is sometimes embarrassing, I think, to some of my friends on the
other side to be reminded of all the rationales they used in pocket
filibustering President Clinton's nominees, when now all of a sudden
those same rationales are out the window when a Republican nominates a
judge.
In addition, as I explained yesterday, my opposition to this
particular nominee, Mr. Griffith, is because he did not follow the law.
His decision to practice law without a license for a good part of his
career should be disqualifying. He has not honored the rule of law by
first practiced law illegally in the District of Columbia for several
years and then in Utah for several years without even bothering to
fulfill his obligation to become a member of the Utah bar. In this
regard he appears to think he is above the law. This is not the kind of
nominee who should be entrusted with a lifetime appointment to a
Federal court and, least of all, to such an important court as the D.C.
Circuit, which is entrusted with protecting the rights of all
Americans. He may be a fine gentleman, but what a standard. We turn
down a partner in a prestigious law firm because he was nominated by a
Democrat, and we turn down a woman highly qualified who becomes the
dean of the Harvard Law School, but she committed a sin of having been
nominated by a Democratic President. When a Republican nominates
somebody for the same seat and he practiced law illegally for 7 years,
well, all is forgiven. This is the wrong nomination for this court, and
I will vote against it.
I think it is another in a series of inappropriate nominations the
President has made to the same court. Of course, the takeover of this
court is now complete. It becomes an arm of the Republican Party. Mr.
Griffith is the third nominee from President Bush to be considered by
the Senate. If he is confirmed with those 11 judges, a majority of 7
judges will be appointed by Republican Presidents, but interestingly
enough, they have turned this court into an arm of the Republican Party
by using some of the worst double standards we have seen. Instead of
having a balanced court where we have nominees of both parties, the
Republicans in the Senate filibustered, pocket filibustered judge after
judge nominated by a Democratic President.
The D.C. Circuit is an especially important court in our Nation's
judicial system for its broad caseload covering
[[Page S6429]]
issues as varied as reviews of federal regulation on the environment,
workplace safety, telecommunications, consumer protection, and other
critical statutory and constitutional rights. The White House has
rejected all Democratic efforts to work together on consensus nominees
for this court and refused to engage in consultation. I wish the
President would work to unite the country instead of dividing it. But
he has divided the Senate and the American people with several of his
judicial nominees. It is unfortunate for the judiciary, the Senate, and
the Nation. The President's unilateral approach is totally unnecessary
and unlike his predecessors'.
I have been here with six Presidents. Five before this Senate always
consulted with both parties on judges they sought to unite rather than
divide.
This is the first President who has not.
To reiterate, I oppose the nomination of Thomas Griffith to the U.S.
Court of Appeals for the D.C. Circuit. Mr. Griffith's decision to
practice law without a license for a good part of his career should be
disqualifying. Mr. Griffith has foregone at least 10 opportunities to
take the bar in Utah, and has continued to refuse during the pendency
of his nomination. In this regard he appears to think he is above the
law. That is not the kind of person who should be entrusted with a
lifetime appointment to a Federal court and, least of all, to such an
important court as the D.C. Circuit, which is entrusted with protecting
the rights of all Americans. This is the wrong nomination for this
court and I will vote against it.
Given the fact that the Supreme Court routinely reviews fewer than
100 cases per year, the circuit courts, like the D.C. Circuit, end up
as the courts of last resort for nearly 30,000 cases each year. These
cases affect the interpretation of the Constitution as well as statutes
intended by Congress to protect the rights of all Americans, such as
the right to equal protection of the laws and the right to privacy. The
D.C. Circuit in particular is an especially important court in our
Nation's judicial system because Congress has vested it with exclusive
or special jurisdiction over cases involving many environmental, civil
rights, consumer protection, and workplace statutes. For example, the
D.C. Circuit has exclusive or concurrent jurisdiction in cases
involving the National Labor Relations Board, the Occupational Safety
and Health Administration, the Federal Energy Regulatory Commission,
the Federal Election Commission, and the Federal Communications
Commission. The D.C. Circuit is entrusted with interpreting the
Americans with Disability Act, the Endangered Species Act, and the
Environmental Protection Agency, and has primary responsibility for
ruling on the Resource Conservation and Recovery Act, Superfund, the
Clean Water Act, and the Clean Air Act. It is crucial that this court
retain its independence.
The White House has rejected all Democratic efforts to work together
on consensus nominees for this court and refused to engage in
consultation. That is too bad and totally unnecessary. This is another
in a series of inappropriate nominations this President has made to
this court. Last week, Senate Republicans voted in lockstep to confirm
Janice Rogers Brown to this court. The takeover of this court is now
complete. Mr. Griffith is the third nominee for this court from
President Bush to be considered by the Senate. If he is confirmed the
11 judges on the court will include a majority of seven judges
appointed by Republican Presidents.
At Mr. Griffith's hearing last March, I noted that unlike the many
anonymous Republican holds and pocket filibusters that kept more than
60 of President Clinton's moderate and qualified judicial nominees from
moving forward, the concerns about Mr. Griffith were no secret. Unlike
the Republicans' pocket filibusters of Allen Snyder and Elena Kagan,
who were each denied consideration and an up or down vote when
nominated to the D.C. Circuit, Mr. Griffith knows full well that I
think he has not honored the rule of law by his practicing law in Utah
for 5 years without ever bothering to fulfill his obligation to become
a member of the Utah bar.
By one count, Mr. Griffith has so far foregone 10 opportunities to
take the Utah bar exam while applying for and maintaining his position
as general counsel at BYU. He is about to forego an eleventh. 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 has yet to satisfactorily
explain why he obstinately insists on refusing to do what hundreds of
lawyers do twice a year in Utah and thousands of lawyers do around the
country: apply for and take the State bar exam and qualify to become a
member of the State bar in order to legally practice law.
He has testified that he has obtained a Utah driver's license and
pays Utah State taxes, but he is not a member of the bar despite
admitting practicing law there since 2000. This is not Mr. Griffith's
first or only bar problem. Mr. Griffith was less than forthcoming with
us on questions related to his repeated failures to maintain his D.C.
bar membership and his failures to pay his annual dues on time not just
once, not twice, but in 1996, 1997, 1998, 1999, 2000 and 2001. He was
twice suspended for his failures, including one suspension that lasted
for 3 years.
As was reported last summer in the Washington Post, and confirmed
through committee investigation, Mr. Griffith has spent the last 5
years as the general counsel to BYU. In all that time he has not been
licensed to practice law in Utah, nor has he followed through on any
serious effort to become licensed. He has hidden behind a curtain of
shifting explanations, thrown up smokescreens of letters from various
personal friends and political allies, and refused to acknowledge what
we all know to be true: Mr. Griffith should have taken the bar. I ask
unanimous consent that the relevant Washington Post articles be printed
in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Washington Post, Nov. 17, 2004]
Court Nominee Gave False Data, Text Shows; Law License Was Suspended
Despite Early Denial
(By Carol D. Leonnig)
Thomas B. Griffith, President Bush's nominee to the U.S.
Court of Appeals for the District of Columbia Circuit,
appeared to provide inaccurate information to Utah bar
officials about his legal work and lapses in obtaining law
licenses over the past year, according to documents released
yesterday at his nomination hearing.
Griffith's nomination has been stalled for months over
concerns that he failed to maintain a valid license for three
years while he practiced law in the District and Utah, and
that he did not obtain a Utah license after taking a job as
general counsel for Brigham Young University in Provo, Utah.
Even as Griffith defended his record yesterday, the new
documents added to that controversy.
They show Griffith reported to Utah state bar officials
last year that his law license had never been suspended. It
had been suspended from 1998 to 2001. He also told the state
bar that he relied on his D.C. license to practice law in
Utah. But at yesterday's hearing, Griffith testified that he
had practiced law in Utah by relying on associations with
licensed attorneys there.
Senate Judiciary Chairman Orrin G. Hatch (R-Utah), a
longtime friend of Griffith's who pledged to ``do everything
in my power'' to help him win confirmation, scheduled
yesterday's hearing for the middle of a lame-duck session and
was the sole committee member present to question Griffith.
Democrats said they were surprised Hatch proceeded despite
the slim chances of the Senate approving Griffith in the
remaining days before Congress adjourns and the objections to
the nominee.
``We're going to do our very best to get you confirmed
before the end of the session,'' Hatch told Griffith, before
acknowledging: ``It'll be miraculous if we do.''
Senator Russell Feingold (D-Wis.) asked that Griffith's
application and letters to the Utah bar be released at
yesterday's hearing.
The Washington Post reported this summer that Griffith's
D.C. license had been suspended because he did not pay bar
dues from 1998 to 2001, a lapse that prevented Griffith from
obtaining a reciprocal law license in Utah after he took the
Brigham Young job. Griffith applied late last year to take
the bar exam to obtain a Utah license but never sat for the
January 2004 test.
Last month, the American Bar Association gave Griffith the
lowest passing grade for a judicial nominee, a ``qualified''
rating. A large minority of the review committee voted ``not
qualified.''
Yesterday, in his first public comments on the matter,
Griffith said he ``deeply regrets'' his failure to make sure
that his law firm paid his dues so he could keep a valid
District law license. ``I bear full responsibility for what
happened,'' he said. ``I should not have relied on others.''
Griffith added that because his license was suspended for
administrative reasons, he
[[Page S6430]]
never considered it a true suspension or disciplinary matter,
and did not report it to Utah officials. ``The thought never
crossed my mind that it was related,'' he said.
Griffith also defended his decision not to obtain a Utah
law license since becoming general counsel at Brigham Young,
Hatch's alma mater, in the summer of 2000.
``It was always my understanding that in-house counsel need
not be licensed,'' he said, as long as he worked with lawyers
who did have valid Utah state licenses when he dispensed
advice on state matters. He said he has been ``meticulous''
in limiting his work by collaborating with the four lawyers
he supervises in his office.
In the newly released licensing application to the Utah
state bar, however, Griffith answered ``yes'' to a question
on whether he practiced law in Utah. He reported that he did
so as general counsel for Brigham Young, relying on his D.C.
law license.
In April 2003, the documents show, Griffith wrote a letter
seeking advice from the Utah bar on how he could obtain a
state license. Griffith said he had erred in assuming that a
new state rule might help him get a reciprocal license. The
bar's general counsel, Katherine A. Fox, wrote back the next
month urging him to apply to take the bar exam and warning
him to work with licensed colleagues in the meantime.
``It is unfortunate that you anticipated relying on the
rule without having an understanding of the restrictions it
imposed,'' she wrote.
____
[From the Washington Post, Sept. 30, 2004]
Appeals Nominee Gets Low Grade; ABA Cites Licensing Lapses in Granting
`Qualified' Rating
(By Carol D. Leonning)
The American Bar Association yesterday gave President
Bush's choice for a seat on the U.S. Court of Appeals for the
District of Columbia the lowest possible passing grade for
judicial nominees, and sources said a Republican Senate
chairman was expected to schedule a hearing next week on his
nomination.
Thomas B. Griffith, who failed to obtain a law license in
Utah or keep a current license in the District during parts
of the past six years, received a slight majority from his
peers after an unusually long, three-month investigation.
Under the ABA's system, that means at least eight of the 15
members on the review panel rated him ``qualified'' for a
seat on the court, and at least six rated him ``not
qualified.''
The national lawyers group, which also offers a higher
rating of ``well qualified,'' evaluates judicial nominees for
the Senate.
Others have received the same rating and been appointed to
the federal judiciary. Of the 10 Bush administration appeals
court nominees who received the same rating, six were
confirmed to the bench. In President Bill Clinton's second
term, two of the five appellate court nominees who received
that rating were confirmed.
Griffith has declined to discuss his pending nomination.
A spokeswoman for Senate Judiciary Chairman Orrin G. Hatch
(R-Utah) declined to say whether he plans to hold a
nomination hearing for Griffith, but committee sources said
they expect Hatch to announce today that he will schedule a
hearing for Oct. 7. Hatch has campaigned for Griffith's
confirmation, telling senators it is personally important
that the White House nominee, a friend who hails from Hatch's
home state, join the bench.
``The chairman is pretty committed to this nominee and has
a high impression of Mr. Griffith,'' said Hatch spokeswoman
Margarita Tapia.
Griffith failed to renew his law license in Washington for
three years while he was a lawyer based in the District from
1998 to 2000, as counsel to the U.S. Senate and a partner in
the firm of Wiley Rein and Fielding. He said the licensing
dues were not paid because of an oversight by his firm's
staff.
But that lapse subsequently prevented Griffith from
receiving a law license in Utah when he took a job as general
counsel for Brigham Young University in August 2000. Griffith
said he discovered his D.C. license had expired in 2001. The
Utah Bar told Griffith that after so many years without a
valid license, the only way he could obtain a Utah license
was to take the Utah bar exam. Griffith applied to sit for
the arduous test but never took it, bar officials said.
Opponents of Griffith's nomination said yesterday that the
low rating and the lateness of the Senate session should
prevent him from getting a hearing.
Sen. Patrick J. Leahy, (D-Vt.) who this month said
Griffith's nomination was on ``life support,'' said yesterday
that he was surprised the White House and Hatch continue to
press for a nominee with ``not exactly a confidence-inspiring
rating.''
``This is a nominee who has been suspended from one legal
jurisdiction and who apparently continues to this day to
engage in the unauthorized practice of law in another,'' he
said.
Thomas Z. Hayward Jr., a Chicago lawyer with Bell, Boyd &
Lloyd and chairman of the ABA standing committee on judicial
nominations, acknowledged this is ``one of the more
difficult'' nominee investigations for the bar. He said that
after Griffith's license lapses were reported in The
Washington Post in June and a preliminary investigation was
conducted in July, committee members appeared ``very closely
split'' about whether Griffith met the minimum qualifications
for an appellate judgeship.
Hayward said he then ordered a supplemental investigation
``to be fair to the nominee.'' About 40 more people with
direct knowledge of Griffith, his licensing lapses in the
District and Utah, and his career were interviewed.
People can respectfully disagree, but we have probably done
more investigation into the questions raised by this
nomination than anybody else, including the White House, the
FBI and the two sides of the [Senate] Judiciary Committee,''
Hayward said.
Mr. LEAHY. Practicing law without a license, or as the bars call it,
unauthorized practice of law, is not a technicality. 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. 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 must include the lawyers,
and beyond question, it must include the judges. I continue to be
disappointed by Mr. Griffith's unwillingness to do what is now long
overdue: namely, to take the Utah bar exam and become properly licensed
to practice law in Utah, where Mr. Griffith has been practicing law for
the last 5 years.
Despite the evident controversy surrounding his practice of law in
Utah for 5 years without becoming a member of the Utah bar, he appears
to have comfortably and conveniently placed himself above the law. That
is not something I look for in lifetime appointments to the Federal
courts. For a court that decides some of the most important issues of
law in our Nation, where the ruling in just one case can affect
millions of people in the most critical areas of their lives, the
President has chosen to send us a nominee whose disregard for the rules
that apply to him is simply unacceptable.
Over the months that this nomination has been pending before us we
have done a good deal of investigation into this matter on a bipartisan
basis. The committee investigators questioned the nominee, spoke to
officials and experts at the D.C. bar and the Utah bar, asked for and
received correspondence and other documents relating to Mr. Griffith's
bar memberships and worked to understand the facts and circumstances
surrounding the two situations. Having reviewed all of this information
and studied Mr. Griffith's many answers, I have come to the inescapable
conclusion that he feels he cannot be bothered to live up to the laws
that apply to everyone else.
I will begin with the D.C. bar dues problem. In his initial
description of this problem Mr. Griffith did his best to downplay it,
telling the committee in his questionnaire that his membership in the
D.C. bar ``lapsed for non-payment of dues . . . due to a clerical
oversight.'' At the committee hearing on his nomination, he tried to do
the same, telling us that from the time he first began practicing law
in North Carolina, and continuing through the time he practiced with a
firm in D.C., he counted on his law firm to pay his bar dues. He went
on further to say that when he took the job as Senate legal counsel he
discovered the Government does not pay your professional fees. Here, I
quote his testimony, where he told us: ``[W]hen I learned that the
Senate wouldn't pay, I notified the D.C. bar to send the bar notices to
my home, where I pay personal bills. They did so in '95, '96 and '97,
and every time they sent a notice, I paid.''
The only problem arose, according to Mr. Griffith, in 1998, when, for
reasons he cannot explain, the D.C. bar suddenly stopped sending him
mail. He says he never received his bill for the 1998 dues year, does
not remember receiving any of the follow-up notices the bar routinely
sends, and simply forgot about his obligation until 3 years later, when
he was seeking a certificate of good standing from the D.C. bar.
All of this may seem relatively harmless but a more serious problem
arises because what Mr. Griffith told us and what he testified to is
not entirely true, it was not the whole truth. For example, his
membership in the D.C. bar did not just lapse when he failed to pay his
dues in 1998, it was actually suspended. That means for the 3 years the
suspension lasted, he was not legally allowed to practice in reliance
on his D.C. law license. And he was not only suspended once from the
D.C. bar, he was suspended twice, once in 1998 for not paying his dues
at all, and also the year before, in late 1997. Furthermore,
[[Page S6431]]
we have also learned that while he managed to avoid suspension in 1996,
he paid his bar dues late that year, as well. Contrary to his
misleading testimony at his hearing, it seems that the only year Mr.
Griffith actually paid his D.C. bar dues on time, after coming to the
Senate in 1995, was in 1995. Two suspensions from the practice of law
in 2 years, 3 late or nonexistent payments in 4 years, and an attempt
to mischaracterize this embarrassing record are hardly just a single
``administrative oversight'' unless by that Mr. Griffith means to
indicate that his single admitted error is that he does not comply with
the law.
What may be more disturbing than Mr. Griffith's failure to pay his
D.C. dues, for whatever reason, is his lack of concern about the
implications of having practiced law in D.C. without proper licensure.
When I asked him if he had notified his clients from the period he was
suspended, whether he had told his partners or even the law firm's
liability insurance carrier, he brushed me off, telling me that his
membership in good standing was reinstated once he paid his dues. Of
course, that ignored my real question about the ramifications of having
been suspended for 2 separate periods totaling more than 2 years.
Clients should be notified, partners should be told, and courts should
be contacted.
The Department of Justice apparently agrees that suspension for
failure to pay bar dues is a serious matter. Recent newspaper reports
disclosed that the Department's Office of Professional Responsibility
takes such a matter seriously enough to have opened an investigation
into the case of a longtime career attorney there who, like Mr.
Griffith, was suspended from the D.C. bar because he did not pay his
dues. Unlike Mr. Griffith's case, the Department is concerned enough
about such a suspension that they filed notices with the courts in
every case this attorney worked on during the period of his suspension,
notifying them that he was not authorized to practice at the time. This
may impact the matters that Government attorney was supervising, which
included the treatment and proper compensation of black farmers.
Practicing law without a license is a serious matter.
The facts surrounding Mr. Griffith's membership, or lack thereof, in
the Utah bar are even more disturbing. Thomas Griffith began his
service as assistant to the president and general counsel of BYU in the
summer of 2000. At that time he was not a member of the Utah bar, he
was suspended from membership in the bar of the District of Columbia,
and he was an inactive member of the North Carolina bar. He apparently
did not have a valid license to practice from any jurisdiction.
According to BYU, its general counsel ``is responsible for advising
the Administration on all legal matters pertaining to the University.''
In addition:
All contracts, other legal documents and legal questions
pertaining to the University or its personnel shall be
presented to the Office of General Counsel or its staff
members as directed for approval and/or recommendation. The
General Counsel directs and manages all litigation involving
the University and decides when to engage outside counsel and
the terms and duration of outside counsel's representation.
The General Counsel delegates the University's legal work
among the lawyers in the office and supervises the work of
the office.
--https://bronx.byu.edurystlife/prod/Handbook/University/
Organization/President.html
Mr. Griffith gave us a similar description of his duties, telling the
committee:
When University policy involves legal matters, I advise the
President's Council and its members on the legal issues
implicated . . . In addition, I supervise the work of the
Office of the General Counsel, which includes interpreting
University policy, participating in transactions involving
the University and outside entities, overseeing litigation,
assuring compliance with law, and coordinating activities
with other University offices whose work involves legal
issues such as human resources, risk management, and internal
audit.
--Responses of Thomas B. Griffith to the Written Questions of
Senator Russell D. Feingold, Dec. 3, 2004, Q.1.
But Utah law prohibits the practice of law in Utah by any person not
``admitted and licensed to practice law within this state.'' Rule 5.5
of the Utah Rule of Professional Conduct holds that, ``[a] lawyer shall
not practice law in a jurisdiction where doing so violates the
regulation of the legal profession in that jurisdiction.''
So, what made Mr. Griffith think he could practice law and not be a
member of the Utah bar? Mr. Griffith testified to the committee that,
``it was my understanding that in Utah in-house counsel need not be
licensed in Utah, provided that when legal advice is given, it is done
so in close association with active members of the Utah bar.'' When I
asked him in writing to explain how he came to that understanding, and
to point out which Utah laws or bar rules might apply, Mr. Griffith
told us only that this, ``understanding was formed over the course of
the years of practicing law and as I had interacted with in-house
counsel in a variety of settings including other Utah in-house counsel
who were not members of the Utah bar.''
Mr. Griffith testified that he relied on an in-house counsel
exception that does not exist in Utah statutes and is not recognized by
the Utah Supreme Court, as Mr. Griffith was forced to concede. It was a
most convenient and self-serving excuse. There is no such ``general
counsel'' exception in Utah and there never has been. He could not
point to any Utah statute or Utah Supreme Court pronouncement allowing
this behavior because it does not exist as a matter of law. Moreover,
his predecessor at BYU and the general counsels of the other
universities in Utah are all members of the Utah bar.
Previously, in his April 2003 letter to John Adams, then the
president of the Utah bar, Mr. Griffith explained the matter
differently and relied specifically on a former BYU general counsel and
on unnamed persons at the Utah bar, saying that, ``I was told by my
predecessor that the Utah bar had created'' what he referred to as a
``general counsel exception'' and that ``I didn't need to become a
member of the Utah bar to perform my responsibilities. Subsequent
conversations with people in your office as well as discussions with
other general counsel around the state confirmed that understanding.''
Mr. Griffith has never been able to identify who at the Utah bar he
claims advised him that he did not need to join the bar. This
fundamental refusal to abide by the law is all the more troubling by
Mr. Griffith's obstinate behavior in refusing to take the bar in order
to cure his failure. This is not complicated: Get licensed. Indeed,
during the course of committee consideration he admitted that when he
asked a second-year law student to research the matter she came back to
him and advised that he should take the bar. Yet here we are, with the
Senate being urged to confirm someone to a lifetime appointment as a
Federal judge on a court with jurisdiction over important cases that
can have nationwide impact and that nominee has adamantly refused to
follow legal requirements in his own legal practice.
Mr. Griffith did respond for the first time in his December 3, 2004
answers to some of our written questions that he had spoken to Bar
President Adams in March 2002. But in his answers, Mr. Griffith
reported the subject of that conversation was whether or not, in order
to join the bar, he would need to take the bar examination, rather than
whether or not he needed to become a bar member in the first place. Mr.
Griffith explained to the committee that he took Mr. Adams' silence on
the unasked question to be an endorsement of his self-serving position
that he did not need to be a member of the Utah bar to carry out his
responsibilities at the University.'' To Mr. Griffith, Mr. Adams'
silence on this unarticulated question apparently overrode all of the
rules of the Utah bar and the laws of the State of Utah.
There was one official representative of the Utah bar who told Mr.
Griffith in no uncertain terms what to do; namely, take the Utah bar
examination. Asked by Mr. Adams to respond to the April 10, 2003
letter, Katherine Fox, Utah bar general counsel, wrote to Mr. Griffith
on May 14, 2003, telling him she was ``surprised'' he thought there was
a general counsel exception, and explaining that in his circumstances
there was no way to waive into the Utah bar and become a member without
taking the bar exam. In her letter, and in plain, simple-to-understand
words, Ms. Fox instructed Mr. Griffith to take the bar examination at
the earliest opportunity. Ms. Fox wrote Mr. Griffith: ``You are
fortunate, however, to have a
[[Page S6432]]
viable option remaining, i.e., admittance by examination and I would
encourage you to start preparing your application as soon as
possible.'' In addition, she ``strongly'' encouraged him to, ``review
[his] current duties,'' and to either limit his work to non-legal
practice or, if legal activities were unavoidable in the interim until
he could pass the exam, be admitted to the Utah bar and cure his
deficiency, ``to closely associate with someone who is actually
licensed here and on active status.'' She closed by reminding him that
the character and fitness portion of the evaluation of prospective
members of the Utah bar could be affected by ``[p]racticing law without
a Utah license.'' I ask unanimous consent that Mr. Griffith's letter to
the Utah bar and Katherine Fox's response be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record as follows:
Utah State Bar,
Salt Lake City, Utah, May 14, 2003.
Thomas B. Griffith,
Assistant to the President, Office of the General Counsel,
Brigham Young University, Provo, UT.
Dear Mr. Griffith: I have been provided with a copy of your
letter dated April 10, 2003 and would like to respond on
behalf of the Bar to a few issues which you raised. First, I
was somewhat surprised that you were informed by your
predecessor at Brigham Young University's Office of General
Counsel and perhaps others that Utah had created a ``general
counsel rule exception.'' As you are now aware from speaking
with Joni Dickson Seko, the Bar's Deputy General Counsel in
charge of admissions, Utah does not have and has never had
such a rule. Second, although we were optimistic that the
Utah Supreme Court would approve the proposed reciprocity
rule, there was no guarantee that it would happen or that the
rule would emerge in the format we submitted.
It is unfortunate that you anticipated relying on the rule
without having an understanding of the restrictions it
imposed. However, I know of no other jurisdiction where a
reciprocity rule has no conditions or restrictions such as a
years of practice requirement. For instance, North Carolina's
reciprocity rule requires applicants to have been physically
practicing law elsewhere for at least four out of the last
six preceding years.
Your reading of the new reciprocity rule is accurate and
admission to the Utah State Bar requires a minimal number of
years of active practice in the reciprocating jurisdiction.
As both Ms. Seko and her assistant Christy Abad have informed
you, the Rules for Admission do not provide for Bar staff or
our governing body, the Board of Bar Commissioners, to make
any exceptions to uniform application of the rules. If an
applicant seeks a waiver of a rule it can only be granted
by the Utah Supreme Court through a petition. This route,
however, historically has not proven very fruitful for
those seeking waivers. See, e.g., In re Larry Gobelman, 31
P.3d 535 (Utah 2001).
You are fortunate, however, to have a viable option
remaining, i.e., admittance by examination and I would
encourage you to start preparing your application as soon as
possible. The application is an extensive one and it takes
time to complete including making arrangement for the
necessary supporting documentation. While I know you spoke
with Joni about your inability to meet the May 1st deadline,
I wanted you to realize that the final (and again, non-
waivable) deadline (with a $300 late fee) is December 1st for
the February 2004 exam. Earlier deadlines are October 1st (no
late fee) and November 1st ($100 late fee).
Finally, while I regret any misunderstandings or
assumptions that may have occurred, I also would strongly
encourage you to carefully review your current duties as
Assistant to the President in the Office of General Counsel.
As noted above, we have no general counsel exception rule
allowing individuals who serve in such positions to actually
practice law without Utah licensure. 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. If such activities are unavoidable, I strongly urge you
to closely associate with someone who is actually licensed
here and on active status. Finally, just so you know, all
applicants are required to undergo a character and fitness
assessment prior to being permitted to take the examination.
Practicing law without a Utah license has been an issue for
some applicants in the past and has resulted in delayed
admission or even denial.
Very truly yours,
Katherine A. Fox,
General Counsel.
____
Office of the General Counsel,
Brigham Young University,
Provo, Utah, April 10, 2003.
John Adams,
President, Utah Bar Association, c/o Ray Quinney & Nebeker,
South State Street, Salt Lake City, Utah.
Dear John: I need your advice. When I moved to Utah to
accept the position of Assistant to the President and General
Counsel of Brigham Young University, I was told by my
predecessor that the Utah Bar had created what he referred to
as a ``general counsel exception'' and that I didn't need to
become a member of the Utah Bar to perform my
responsibilities. Subsequent conversations with people in
your office as well as discussions with other general counsel
around the state confirmed that understanding. I have,
however, always been active in bar associations where I have
practiced--Washington, DC and North Carolina--and I
determined that I wanted to be admitted to the Utah Bar. To
that end, I prepared to take the bar exam last summer. During
the course of preparing my application materials, I learned
that the Utah Supreme Court was then actively considering the
reciprocity rule that it has only recently adopted. In
discussions with the Utah Bar Association (maybe even you--my
memory is not entirely accurate on this point), I was advised
that the conventional wisdom was that the Court would in fact
promulgate a reciprocity rule. For that reason, I suspended
my preparations and did not submit my application nor take
the bar exam last summer.
I have now read the reciprocity rule recently adopted by
the Court and. as far as I can tell, it may not be helpful to
me. The requirement that an applicant for admission under the
reciprocity rule has been practicing law in the jurisdiction
from which he or she is seeking reciprocity for three of the
last four years is a bar to me inasmuch as I have been in
Utah and not practicing in Washington, D.C. or North Carolina
for the last two and one-half years. I am writing you to see
if there might be some interpretation of which I am unaware
that would allow me to be admitted to the Utah Bar without
taking the exam. If there is not, I will prepare to take the
bar exam next summer.
I look forward to hearing from you.
Sincerely,
Thomas B. Griffith,
General Counsel.
Mr. LEAHY. This response from a career lawyer in the Utah bar made
before political pressure was ratcheted up to defend a Republican
nominee, seemed pretty straightforward to me. That was almost 2 years
ago and still Mr. Griffith has not taken the bar exam, has not made
arrangements to take the bar and, according to his testimony in answer
to my questions last month, has no intention of taking the bar and
becoming a member of the Utah bar despite having practiced law there
for 5 years.
In an interpretation worthy of the Queen of Hearts from Alice in
Wonderland, Mr. Griffith and his supporters have defied logic and
reason by turning Ms. Fox's letter upside down in an attempt to
characterize it as something other than it is and to condone his
conduct. If he will make this self-serving interpretation in this case,
what makes anyone think that he will not be the same sort of ends-
oriented judge that will twist facts and law in cases he rules on from
the federal bench? Ms. Fox's recommendation that he ``closely
associate'' himself with a Utah lawyer until he takes the bar and
becomes a member of the bar was not offered as an indefinite safe
harbor that permits him to violate Utah law. Ms. Fox's letter is being
misused and mis-char-acterized as an invitation to flout the law. This
is the kind of reinterpretation in one's own interest that
characterizes judicial activism of the worst sort when employed by a
judge.
Although he can point to no time before having read Ms. Fox's letter
where he used the phrase ``closely associate,'' and can show us no
evidence that he arranged his work at BYU in accordance with this
advice, Mr. Griffith has in hindsight tried to assert that he somehow
always knew he needed to ``closely associate'' with Utah lawyers.
Indeed, he variously responded to the committee that in his view he
``closely associated'' if he first gave legal advice to a University
official in a private meeting and then sometime later told a member of
his staff who was admitted to the Utah bar about it.
He points to former bar president John Adams' letter of June, 2004,
and to Utah bar executive director John Baldwin's letter of July, 2004
as support for his position, but these letters do not bolster his case.
First of all, each is written long after Mr. Griffith's inquiry of the
bar, and long after Katherine Fox told him to take the bar, but
conveniently provided by his friends and supporters in the summer of
2004 as the investigation into his bar membership was beginning. In any
case, neither of the letters says anything to undermine Ms. Fox's
letter. Indeed, the support letters only speak in the vaguest, most
noncommittal terms. Mr. Adams says that Ms. Fox's letter ``accurately
answered your questions, and
[[Page S6433]]
. . . recommended a course of action to follow in your work so long as
you were not licensed in the State of Utah.''
Mr. Baldwin's letter is even stronger, telling Mr. Griffith:
``[T]hose who engage in the practice of law in Utah must be licensed by
the Utah Supreme Court through the Utah State bar. There is no general
counsel exception rule.'' Likewise, the letter Mr. Griffith produced
from five former presidents of the Utah bar is of no effect. Aside from
their obvious interest in supporting Senator Hatch's candidate who
President Bush nominated and who is affiliated with one of the State's
most powerful and influential institutions, their letter does not say
much. They reiterate that there is no general counsel exception to the
Utah bar membership rules, and say only that if a lawyer is not
practicing Utah law he may closely associate himself with a Utah lawyer
to do those parts of the job. They make no judgment about the sort of
work Mr. Griffith is doing, or even whether, in their words, he ``lived
up to this standard'' or whether his vague implementation of how he
``closely associated'' was ever explained to them, let alone whether
they would have viewed it as passing muster.
The other person we know of who looked at this question for Mr.
Griffith was a second-year law student he asked to research the Utah
laws and practice on bar admissions regarding in-house counsel in
January 2004. By that time, Mr. Griffith had already been practicing
law in Utah for 4 years. One can suspect he made this request at that
time because his subsequent nomination was then under consideration at
the White House. According to Mr. Griffith, who now seeks to claim
attorney-client privilege and refuses to provide the committee and the
Senate with the materials, she did not definitively complete her
research: ``She recommended, therefore, that the safest course for a
Utah corporation would be to ask its in-house lawyers to join the Utah
bar.'' When we asked for the memorandum written by this law student, we
were stonewalled by Griffith and BYU, which claimed privilege for this
document. It is not clear to me why the university would be able to
claim privilege for a document prepared in response to Mr. Griffith's
personal problems with bar membership, or why once he himself revealed
its contents we are not now entitled to see it. Nonetheless, we have
not been able to see it.
But, whatever the status of the specific memo, it comes down to this:
A second-year law student in a truncated research assignment had enough
sense to recommend that in-house counsel join the Utah bar. If she had
known that such in-house counsel admits to practicing law in Utah, I
suspect her advice would have been even more definitive. Of course,
that is the prudent course and the one consistent with Utah law. After
5 years, Mr. Griffith has refused to take the normal steps taken by
scores of others every year in Utah and thousands of lawyers around the
country and take the State's bar exam in order to gain admission to the
State bar.
Mr. Griffith has offered nothing in the way of legal authority or
analysis that might begin to refute the common-sense conclusion one
must reach after an examination of the law. Mr. Griffith has been
practicing law in Utah without a Utah license. His excuses to the
contrary are insufficient and wrong. He admits that he is practicing
law in Utah. He does not have a Utah license to do so. After 5 years,
he would appear to be in violation of Utah Code Section 78-9-101, and
Rule 5.5 of the Utah Rules of Professional Conduct. There is no
``general counsel'' or ``in-house counsel'' exception on which he can
rely to justify his practice of law in Utah since 2000 without having
become a member of the Utah bar.
In addition to that threshold matter of practicing law without being
a member of the Utah bar, there are other reasons for serious concern
about Mr. Griffith's fitness to be a member of the United States Court
of Appeals for the District of Columbia Circuit. I have already alluded
to his creative, ``activist'' reading of the facts in law in connection
with his bar admission problems. In addition, he has spoken in
Federalist Society circles of his judgment that President Clinton was
properly impeached and that he would have voted for his conviction and
removal from office. Given his role as Senate Legal Counsel at the
time, these public musings are unseemly and unsound. Rather than
campaigning for this nomination, Mr. Griffith would have better spent
his time preparing for and taking the Utah bar exam.
His judgment is likewise brought into serious question by his views
on title IX of our civil rights laws. This charter of fundamental
fairness has been the engine for overcoming discrimination against
women in education and the growth of women's athletics. I urge all
Senators to think about our daughters and granddaughters, the pride we
felt when the U.S. women's soccer team began winning gold medals and
World Cups, the joy they see in young women with the opportunity to
play basketball and ski and compete and grow.
With the recent reinterpretation of title IX being imposed by this
administration in ways that will no doubt be challenged through the
courts, we may now understand why the Bush administration sees the
appointment of Mr. Griffith to the D.C. Circuit Court as such a
priority. His narrow views on title IX were unveiled during his efforts
as a member of the Bush administration Secretary of Education's
Commission on Opportunity in Athletics, to constrict the impact of
title IX. Does anyone doubt that he would rule that the Bush
administration's revision through regulations should be upheld?
The U.S. Supreme Court recently decided that whistleblowers are
protected in the title IX context. That was a close 5-4 decision in
which Justice O'Connor wrote for the majority. Just the other day the
Justices refused to hear a challenge to an appellate court decision
that essentially found that title IX could not be blamed for cutbacks
in men's athletic programs. These recent legal developments regarding
title IX serve to remind us how important each of these lifetime
appointments to the Federal courts is. In light of the record on this
nomination, I am not prepared to take a chance on it and will vote
against it.
It is my understanding we are voting at 10.
The PRESIDING OFFICER (Mr. Vitter). The Senator is correct.
Mr. LEAHY. Have the yeas and nays been requested?
The PRESIDING OFFICER. They have not yet been requested.
Mr. LEAHY. I request the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Mr. President, I ask unanimous consent to be given equal
time as the Senator from Vermont.
The PRESIDING OFFICER. Is there objection?
Mr. LEAHY. I am sorry. I could not hear.
Mr. HATCH. I ask that I be given the same amount of time that the
Senator from Vermont had to speak on Mr. Griffith.
The PRESIDING OFFICER. Is there objection?
Mr. LEAHY. Mr. President, I probably would not object. I would point
out that I was responding to the distinguished Republican leader who
had spoken an equal amount of time on Mr. Griffith. I had spoken
yesterday considerably less time, on the same nomination, than the
distinguished senior Senator from Utah. I also know both the Republican
and Democratic cloakrooms have notified their Members that we are going
to vote at 10. There are a number of hearings that have been
established based on that. As a matter of courtesy, I am not going to
object, but I wanted the distinguished Senator from Utah to know I took
the same amount of time the distinguished Republican leader did on the
same thing, and overall less time than the distinguished Senator from
Utah has taken. I will not object.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
The Senator from Utah.
Mr. HATCH. Mr. President, I appreciate my colleague not objecting,
and I will limit myself to about half the time that he has taken this
morning just out of courtesy to him.
[[Page S6434]]
I know Tom Griffith. We all know Tom Griffith. Tom Griffith was
general counsel of the Senate. He served the Senate well. He did it in
a nonpartisan way, even though he is a Republican. He helped all of us
during the impeachment. Both sides acknowledge that he was terrific. He
has all the academic and legal credentials necessary to fulfill this
position. He is a person who is a consensus builder, someone who tries
to get along with everybody and who, I think, will be perfect on this
particular court.
So I hope everybody will vote for Tom. He is a member of our family.
He served us all. As a general rule, in the past, people who have
served us such as Tom Griffith has would pass this body 100 to zip.
Unfortunately, we have had some very forceful partisan politics rear
its ugly head in some of these judgeship issues, and from time to time
it may have been on both sides, but in this particular case it has been
all on one side.
I get a little tired of hearing the same arguments over and over
again. The fact is, when President Bush 1 left office there were 54
holdovers with the Democrats in control of the Senate, and he only
served 4 years. One could imagine how many there would have been if he
served 8 years. The fact is, the all-time confirmation champion was
Ronald Reagan who had 382 judges confirmed in his 8 years, but he had 6
years of a Republican Senate to help him. President Clinton got almost
the same number, a total of 377, with only 2 years of his own party to
help him.
As chairman of that committee, I know I did everything in my power to
give the Clinton nominees an opportunity to get an up-or-down vote, and
when they reached the floor I think virtually all of them got an up-or-
down vote without any delays or filibusters.
The Clinton administration was treated very fairly. There were people
left over at the end of his administration, and he had 8 years, no more
than were left over basically when President Bush I left the
Presidency.
Getting back to Tom Griffith, as most of my colleagues know, Tom
served as Senate legal counsel for 4 years so many of us have had
first-hand experience with him.
Because the D.C. Circuit reviews cases involving Federal statutes,
regulations, and other important matter, this is a tough assignment.
Many observers believe that the D.C. Circuit's jurisdiction makes it
second in importance to that of the U.S. Supreme Court.
Tom Griffith is up to the task of sitting on this court.
At some length yesterday, I detailed his qualifications.
Time is short today, so I will make only a few summary comments.
In order to become the exceptional lawyer that he is today, Tom
Griffith had to gain an exceptional educational foundation.
He accomplished this first as an undergraduate at my alma mater,
Brigham Young University. He graduated summa cum laude and was the
valedictorian of the BYU College of Humanities.
Tom then attended the University of Virginia School of Law, where he
was a member of the law review.
Upon graduation, Tom joined the leading Charlotte, NC, law firm of
Robinson, Bradshaw, and Hinson where he was an associate specializing
in commercial litigation.
In 1989, Tom moved to Washington, DC, to become an associate, and
then a partner, in the firm of Wiley, Rein and Fielding--by all
accounts, a highly-regarded law firm.
He began his four year stint as Senate legal counsel in 1995 and
served through the very challenging impeachment trial of President
Clinton that concluded in early 1999.
Upon departing from the Senate, Tom returned to Wiley, Rein and
Fielding for a period of time before he went to Utah in 2000 to serve
as assistant to the president and general counsel of Brigham Young
University. He serves in that capacity today.
This is a bare bones sketch of a distinguished professional career.
Along the way, Tom Griffith has faced many challenges and he has
impressed many with his legal skills.
Here is what associate dean and professor of law, Constance Lundberg,
of the J. Reuben Clark School of Law has to say about Mr. Griffith:
[Tom] is also a lawyer of unexcelled ability. He
understands the differences between law and policy and has a
deep understanding of the powers and prerogatives of each of
the three branches of government. He is immensely fair and
compassionate. The laws and Constitution of the United States
could not be in better hands.
These comments do not stand alone in academic circles. Harvard Law
Professor William Stuntz has said the following about Tom:
I know a great many of talented men and women in America's
legal profession. I have taught more than three thousand
students at three top law schools, and I have friends
scattered across the country in various kinds of law practice
and in academics. I do not know anyone whom I would rather
see on the federal bench than Tom Griffith. If he is
confirmed, he will not be a good judge. He will be a great
one.
I think that both of these professors have made assessments that we
would be wise to take into account.
Over the past 10 years, Tom has demonstrated his commitment not only
to the legal profession but to the broader justice system. He has
volunteered a great deal of time in training judges and lawyers in
Eastern Europe, impressing many, including Mark Ellis, the executive
director of the International Bar Association, who had this to say
about Tom Griffith:
The duty of a judge is to administer justice according to
the law, without fear or favor, and without regard to the
wishes or policy of the governing majority. Tom Griffith will
fervently adhere to this principle.
We in the Senate have ample evidence that Tom Griffith will place the
law over partisan politics. Tom was Senate legal counsel during the
Clinton impeachment trial and won praise from those on both sides of
the aisle. Yesterday, I quoted from Senator Dodd's speech in tribute to
Tom on his departure from the Senate. Senator Bennett, my colleague
from Utah, has already explained the constructive role that Tom played
in keeping the Senate together during the impeachment trial. I agree
that the reputation of the Senate was enhanced rather than degraded
through that time, in part because of the steady hand and solid
guidance of Tom Griffith.
Few nominees that come before the Senate are as well-known by
Senators as Tom Griffith and we know that he can handle complex
problems in a charged atmosphere in a manner that brings consensus.
I think that the qualities that Tom displayed as Senate legal counsel
are exactly those that we need on the Federal bench.
Many agree with this assessment. For example, here is what one of our
Nation's leading appellate lawyers, the Clinton administration's
Solicitor General Seth Waxman, had to say about Mr. Griffith:
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 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.
This strong sentiment in favor of Tom Griffith's competence and
character is shared, not surprisingly, by his former law partners and
mentors. Fred Fielding, former White House Counsel to President Reagan
and former chairman of the American Bar Association's Standing
Committee on the Federal Judiciary, has described Tom 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.''
Another law partner of Mr. Griffith, Richard Wiley, has this to say
about his qualifications:
Tom is an outstanding lawyer, with keen judgment, congenial
temperament and impeccable personal integrity. He would bring
great expertise and fair-minded impartiality to the bench
and, in my judgment, would be a considerable credit to the
D.C. Circuit and the Federal Judiciary as a whole.
Tom Griffith has the education, experience, judgment, and character
to make an outstanding member of the Federal judiciary. I commend
President Bush for nominating an individual from Utah who has a proven
track record as a lawyer and has strong bipartisan support.
In addition to this affirmative discussion of Tom Griffith's
qualifications and bipartisan support, I do need to respond to the few
arguments that have been raised against his nomination by some on the
other side of the aisle.
First, my friend from Vermont, Senator Leahy, referred to Mr.
Griffith
[[Page S6435]]
yesterday as someone who ``admittedly practiced law illegally first in
the District of Columbia and then in Utah.'' Mr. President, this
statement is patently false.
Mr. Griffith has admitted no such thing because he did no such thing.
No court or administrative body, including no bar association,
anywhere has ever concluded that Mr. Griffith has, in the Senator from
Vermont's ill-chosen words, practiced law illegally.
Neither have they found that Mr. Griffith engaged in the unauthorized
practice of law, either in the District of Columbia or in Utah.
Let me once again set this record straight with respect to both of
these jurisdictions.
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 rectified it. He paid his dues in full and was
promptly reinstated as a bar member in good standing.
He remains a member in good standing today.
This matter involving Mr. Griffith's bar dues does involve several
unfortunate mistakes. In the early 1990s, Mr. Griffith worked for a
large law firm in Washington and became accustomed to the firm's
practice of paying its attorneys' bar dues.
When he returned to that firm following his service as Senate legal
counsel, he wrongly assumed the firm was once again paying his bar
dues. He accepts full responsibility for the oversights and, as I said,
is today a member in good standing.
Mr. President, the only, I repeat, the only question is whether this
error was anything other than inadvertent. And Mr. Griffith has
answered that question with a clear and resounding no. No one,
including the Senator from Vermont, has offered a shred of evidence to
suggest otherwise.
Each year, more than 3000 lawyers in the District of Columbia alone--
and, I understand, a number of sitting judges--similarly see their law
license suspended for failure to pay bar dues.
As in Mr. Griffith's situation, this is an administrative suspension,
not a disciplinary suspension.
Despite the rhetoric from the Senator from Vermont, we do not have
thousands and thousands of lawyers practicing illegally in the Nation's
Capital.
In a letter to the Judiciary Committee dated June 14, 2004, former
ABA Presidents Bill Ide and Sandy D'Alemberte wrote:
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.
Yesterday the Senator from Vermont was trying to turn something
entirely common and of no major concern into something untoward and of
very grave concern. It will not work.
The story is no different with respect to the Utah chapter of this
story.
Mr. Griffith graduated from the University of Virginia School of Law
and practiced law in North Carolina and Washington, DC, for 15 years,
including service as Senate legal counsel.
The position he accepted of general counsel of Brigham Young
University was very different, in both content and location, than his
previous experience. He consulted with Utah attorneys requiring Utah's
requirement for in-house counsel, and he has always complied with the
advice he has received in this regard.
Simply put, the advice he received was that he need not become a
member of the Utah bar, so long as he worked with a bar member when
engaged in legal practice activities. No one, including the Senator
from Vermont, has documented that he has not met this standard.
In a letter to the Judiciary Committee dated June 28, 2004, five
former presidents of the Utah bar affirmed 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.''
In a letter dated July 2, 2004, John Baldwin, executive director of
the Utah bar, similarly affirmed that ``those who follow that advice
are not engaged in the unauthorized practice of law.''
Mr. Griffith not only complied with the letter of the advice he
received, his actions are consistent with the spirit of that advice as
well.
In a letter to the editor of the New York Times dated July 4, 2004,
law professors and legal ethics experts Monroe Freedman of Hofstra
University and Thomas Morgan of George Washington University,
emphasized that the requirement of bar membership is not a rule of
legal ethics. Rather, it assures the public--those to whom lawyers
offer their services--that lawyers are competent.
Their letter states:
The requirement of membership in a particular bar is not in
itself a rule of ethical professional conduct, but a lawyer's
guild rule . . . designed to restrict competition . . . 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.
Obviously, this does not apply to an in-house counsel who does not
hold himself out to the public. Brigham Young University, Mr.
Griffith's employer, was well aware that he was not a bar member and
was thoroughly satisfied with both his status and his service.
The unsubstantiated charge that Mr. Griffith has practiced law
without a license is pure hokum. Or as I explained yesterday, in the
opinion of Abner Mikva, a former Democratic Congressman, White House
Counsel to President Clinton, and former Chief Judge of the D.C.
Circuit, this charge amounts to ``a whole lot of nothing.''
Judge Mikva has it right. My friend from Vermont is simply wrong.
The other area of criticism involves Mr. Griffith's views on title
IX, a statutory provision which provides equal opportunities for women
in college sports. Tom has proven that he is a strong supporter of
title IX and women's rights.
In fact, he was appointed to the Secretary of Education's Commission
on Opportunity in Athletics by Rod Paige in part because of his
outspoken support of title IX's objectives.
In response to written questions from members of the Judiciary
Committee, Tom Griffith expressed his personal convictions about title
IX. He wrote:
I am deeply committed to Title IX in particular and to
expanding and advancing opportunities for women in all areas
of our society. I am committed to that because it is the
right thing to do. But it is also personal for me. I am the
father of five daughters and a son. My entire adult life, I
have been an outspoken advocate for expanding opportunities
for women in part because it means more opportunities for my
daughters and a better society for my son. Those who know me
best know that about me.
Let us consider what those who know Tom Griffith say in this regard.
Brian Jones, former title IX commissioner and general counsel of the
Department of Education, said:
During the Commission's months of deliberation it was quite
clear that every member of the Commission--including Tom--
strongly supports Title IX and is immensely proud of the
progress brought about by its passage. . . . Tom was
consistently a member of the Commission who was not only
willing but also eager to engage every commissioner's
opinions--listening and deliberating in a thoughtful manner,
in a sincere effort to bridge disagreements and seek
consensus where possible.
Graham Spanier, president of Penn State University and another former
title IX commissioner, had this to say:
During the many months that Mr. Griffith served on the
Commission charged with reviewing Title IX, I found him to be
supportive of the law that established Title IX. He was, in
fact, outspoken in his support for the law while thoughtfully
reflecting on matters of interpretation and commenting on
potential refinements to enforcement protocols. . . . During
our work, Mr. Griffith stated his belief that Title IX was
one of the great landmarks in civil rights in our Nation.
Ted Leland, former cochair of the title IX commission and director of
athletics at Stanford University, affirms Tom's clear commitment to
title IX:
During our numerous public meetings, I found Mr. Griffith
not only a diligent commission member, but a staunch
supporter of Title IX.
The list goes on, but because these baseless allegations linger, I
want to also offer the views of Tom's colleagues at Brigham Young
University. The executive director of BYU Women's Athletics, Elaine
Michaelis, applauded Tom's efforts:
[[Page S6436]]
Tom has been very supportive of our women's athletic
program, the coaches, and the athletes. I believe that he is
committed to women and minorities and to fairness in all
aspects of the law.
B.R. Siegfried, an associate professor of English literature and
Women's studies at BYU, said the following:
I am an especially fierce advocate of equality for women,
and of the civil liberties that lend themselves to the
expansion and development of women's opportunities. . . . Tom
is and has been a steadfast and enthusiastic advocate for
women. In a local context in which there is tremendous social
pressure to gloss over gender issues, he has spoken out
repeatedly in support of fairness and justice. His support
has been constant and resolute, and his words are founded on
deeds of practical service.
As a member of a commission overseeing a review of title IX's
application, Tom recommended some changes. He is the kind of person to
take such a role seriously; I am sure he did not consider it sufficient
to fill a chair and not bring his considerable judgment, insight, and
experience to bear in a constructive way.
In some respects, however, Tom's recommendations are beside the
point. As the many lawyers who now serve here in the Senate, lawyers
wear many different hats over the course of their careers.
When Stephen Breyer, for example, was chief counsel to my friend, the
Senator from Massachusetts, believe me, we did not always see eye to
eye on issues. But when he was nominated to the U.S. Court of Appeals
and later to the Supreme Court, I was confident that he would be able
to put politics aside, apply the law to the facts, and make fair and
objective judgments.
I hope there is no partisan double-standard at work here. Tom
Griffith is also a fair, reasonable, and accomplished lawyer who has
served us well here in the Senate and who will properly move into a
judicial role. There is no justification for treating him differently
because he happens to be the nominee of a Republican President.
Now let's address Tom's supposedly radical policy views. The Office
of Civil Rights at the Department of Education uses a three prong test
to determine an educational institution's adherence to title IX. That
test requires that an institution demonstrate one of the following:
that the male to female ratio of athletes is substantially
proportionate to the male to female ratio of student enrollment; that
the institution has a continuing practice of program expansion for
members of the under-represented gender; or that the institution is
fully and effectively accommodating the athletic interests and
abilities of the under represented gender.
The first prong, the substantial proportionality test, has been
designated by the Office of Civil Rights as a safe harbor. If an
institution meets the requirements of a numeric formula, the university
can avoid liability under title IX. The commission found that many
institutions have transformed substantial proportionality into strict
proportionality.
The problem represented by this legalese is clear. This automatic
adherence to a numeric formula means that a quota system has been
established. Regardless of the number of young women interested in
collegiate sports, colleges and universities must offer equal numbers
of athletic slots.
This is a radical revision of title IX's intention, which was to
provide equal opportunity for participation in college sports, not
equal results.
The perverse result of shifting from equal opportunity to equal
results has been documented on numerous occasions. It has required
closing down men's sports teams in swimming, wrestling, gymnastics, and
baseball. In 1999, for example, Providence College cut its 78-year-old
baseball program to bring it within the proportionality requirement.
In 1996, California State University at Bakersfield's wrestling
program, a two-time PAC 10 champion, was eliminated to conform to the
proportionality requirement. A General Accounting Office study found
that from 1985-86 to 1996-97, no less than 21,000 male athletic spots
disappeared, a 12-percent drop overall.
Carol Zaleski, the former president and executive director of USA
Swimming, had this to say:
The unfortunate truth is that Title IX has evolved into
something never intended. The act was intended to expand
opportunity. The interpretation by the Office of Civil Rights
and the evolved enforcement has turned into a quota system.
Title IX is a good law with bad interpretation.
Tom Griffith argued that while such rigid numerical quotas may be
easy to administer, they fail actually to provide women with more
athletic opportunities and that using this quota went beyond the powers
Congress had allocated to the Department of Education.
Tom has hardly been the only individual opposed to this quota
approach. Our former colleague, Senator Birch Bayh of Indiana, said:
The word quota does not appear [in Title IX] . . . What we
were really looking for was equal opportunity for young women
and for girls in the educational system.
Despite divergent views over the best application of the law, Tom
Griffith wholeheartedly joined the recommendations of the commission to
strengthen title IX and ensure that the test did not simply become a
quota. Specifically, he joined recommendations calling for clearer
guidelines for implementation of title IX and a method of
``demonstrating compliance with Title IX's participation requirement
that treats each part of the [three-part] test equally.''
The question here is not whether Tom Griffith agrees with a
particular policy evaluation. The real question is whether he supports
women's rights and is committed to equal opportunity. The answer to
that is a resounding answer is yes.
Three Associate Deans at Brigham Young University Law--Constance
Lundberg, Katherine Lund and Mary Hoagland--wrote to me and had this to
say about Tom Griffith:
In specific instances of which we have personal knowledge,
[Mr. Griffith] has fought for the promotion and recognition
of women, including ethnic minorities. His support has been
vigorous even when faced with substantial administrative
roadblocks. . . . In our experience, some men in similar
roles are not comfortable working with women as colleagues.
Tom, on the other hand, seeks out and respects women's
opinions. Indeed, if every person in university
administration were as evenhanded on gender issues as Tom,
Title IX and other ameliorative measures would be moot.
In both of these areas of criticism--whether he engaged in the
unauthorized practice of law and whether he supports equal opportunity
for women--the pattern is the same. The allegations bear no
relationship whatsoever to the facts, and those who know Tom Griffith
best and have worked with him most strongly support his nomination to
the U.S. Court of Appeals.
I do think that this nominee has been treated badly, and I hope
Senators will do the right thing and allow him to take this very
important position. He will be a consensus builder and will work to
make sure the law is implemented as the law was intended to be.
At one time, when another person was being nominated for this
position, I had those in the minority say: You ought to nominate
Griffith. Some of the chief staff people said: Why not nominate Tom
Griffith? These senior staff members said that Tom would be a slam dunk
because everybody knows how great he is and what a good person he is.
Well, I fought to get him nominated all the way to the White House
itself. Almost immediately after he was nominated, we instead hear some
of these ridiculous arguments that, if not frivolous, certainly off the
mark. What is important is we have a man of integrity, ability, and
capacity who could fulfill this position in a way that might bring
other people together. We all know it because we have seen him for four
solid years right here in the Senate doing the Senate's business.
I appreciate my colleagues on the other side, and especially those
who are willing to vote for Tom Griffith. I think he deserves their
vote. He deserves the vote of all of us, and I hope everybody in this
body will give him a fair vote today.
Mr. FEINGOLD. Mr. President, I will vote no on the nomination of
Thomas Griffith to be a Judge on the D.C. Circuit Court of Appeals.
The D.C. Circuit is widely regarded as the most important Federal
circuit. It has jurisdiction over the actions of most Federal agencies.
Many of the highest profile cases that have been decided in recent
years by the Supreme Court concerning regulation of economic activity
by federal agencies in
[[Page S6437]]
areas such as the environment, health and safety regulation, and labor
law, went first to the D.C. Circuit. In the area of administrative law
and the interpretation of the major regulatory statutes such as the
Clean Air Act, the Clean Water Act, the Occupational Safety and Health
Act, and the National Labor Relations Act, the D.C. Circuit is often
the last word, as the Supreme Court reviews only a tiny minority of
circuit court decisions.
After the confirmation of Judge Janice Rogers Brown last week, there
are 6 judges on the D.C. Circuit who were appointed by Republican
Presidents, and four by Democrats, and there are two vacancies.
President Clinton, of course, made two nominations that were never
acted upon by the Senate Judiciary Committee. In one case, the
committee held a hearing but never scheduled a vote on attorney Alan
Snyder, and in another case, Clinton nominee and now Harvard Law School
Dean Elena Kagan wasn't even given the courtesy of a hearing.
I am disappointed that the Bush administration has not been willing
to seek a compromise on judicial nominees, and on this circuit in
particular. At the beginning of President Bush's first term, there were
enough vacancies to accommodate the two nominations by President
Clinton who were treated so badly in the 106th Congress and allow
President Bush to nominate additional judges to the circuit. The
administration squandered an opportunity to change the tone and repair
some of the damage done to the nomination process by previous
Congresses.
In light of this history, and the importance of this circuit, I
believe it is my duty to give this nomination very close scrutiny.
After reviewing Mr. Griffith's record and his testimony at two
different Judiciary Committee hearings, I do not believe he should be
confirmed to a lifetime appointment to this important court. Let me
take a few minutes to outline the concerns that have caused me to reach
this conclusion.
Mr. Griffith's adherence to professional rules of conduct and State
laws regarding bar membership has been less than scrupulous. In the
District of Columbia, Mr. Griffith twice was administratively suspended
for failure to pay his bar dues, one time for over 3 years. During that
time, Mr. Griffith continued to practice law in the District and then
in Utah. This might not be all that troubling if he had later been
honest about the administrative suspensions he received for failure to
pay his dues. Instead, Mr. Griffith failed to note those suspensions in
answering two separate questions on his Utah bar application in
November 2003.
First, he answered ``no'' when asked if he had ``ever been disbarred,
suspended, censured, sanctioned, disciplined, or otherwise reprimanded
or disqualified, whether publicly or privately, as an attorney.'' At
his hearing before the Judiciary Committee, Mr. Griffith claimed that
he interpreted the question as referring only to disciplinary
suspensions, and that he considered his suspension from the D.C. bar to
be administrative. Given the clear language of the question, and the
fact that the application gives an applicant the opportunity to explain
a yes answer, Mr. Griffith's no response is cause for concern.
In addition, Mr. Griffith answered yes when asked whether he had
``ever given legal advice and/or held himself out as an attorney,
lawyer, or legal counselor in the state of Utah.'' He stated:
Since August 2000, I have served as Assistant to the
President and General Counsel at [BYU]. When called up to act
in my capacity as an attorney, I have done so as a member of
the bar of the District of Columbia.
At the time he answered this question in 2003, Mr. Griffith certainly
was aware that his license in D.C. had been suspended from November
1998 to November 2001.
Even more disturbingly, Mr. Griffith has practiced law in Utah
without a Utah law license, and still does so to this day. Utah law
does not provide that in-house counsel do not need to obtain a Utah law
license. Yet Mr. Griffith failed to seek guidance from the Utah bar for
almost three years on what he could and could not do without a Utah law
license when he began working for BYU. Instead, according to this
testimony, Mr. Griffith relied on his own professional experience and
discussions with other in-house counsel in Utah. None of these people
told him such an exception existed, yet he did not make inquiries to
the bar until 2003. In 2003, Mr. Griffith received a letter from
Katherine Fox, general counsel to the Utah bar, which indicated that he
should limit himself to work that would not constitute the practice of
law, and if he had to practice law, he should do so only in close
association with members of the Utah bar. She also advised him to sit
for the bar exam as soon as possible, and warned him that lawyers
who have practiced in the state without a Utah license have later had
difficultly obtaining such a license.
Since he received that letter, Mr. Griffith has had four
opportunities to sit for the Utah bar, but has instead insisted that he
may practice law in Utah without a law license so long as he works in
close association with members of the Utah bar. He made it abundantly
clear at his second hearing that he does not intend to sit for the Utah
bar exam. I suppose that since he is now about to be confirmed to a
D.C. Circuit seat for life, he won't have to. But his attitude toward a
basic responsibility of every practicing lawyer was disturbing.
In response to these concerns, Mr. Griffith stated at his hearing
that from the very beginning of his work as general counsel at BYU he
has worked in close association with attorneys in his office who were
licensed to practice in Utah. When I questioned him about his adherence
to this close association requirement during his time in Utah, I was
troubled by what I learned. Although Mr. Griffith insists that he has
always worked in close association with members of the Utah bar when
dispensing legal advice, he can provide no documentation of that
practice whatsoever. It is not even clear how Mr. Griffith interprets
the close association requirement. He testified, for example, that he
does not require a licensed member of the Utah bar to be present on
phone calls where he dispensed legal advice.
Mr. Griffith's failure to document his close association with other
attorneys is disturbing and revealing, in light of the letter from
Katherine Fox, which warned him about the consequences that practicing
law without a license might have on his eventual application to the
bar. It also makes it even more difficult to believe that when he began
working for BYU he was aware of the issue and was taking steps to
ensure he involved members of the Utah bar in activities that would be
considered giving legal advice.
Mr. Griffith did submit several letters written beginning last summer
from current and former officers of the Utah bar, to support his
position that he has not violated bar rules so long as he works in
close association with members of the Utah bar. These letters were
written, however, long after Mr. Griffith approached the bar about a
general counsel exception, and long after he received notice from Ms.
Fox of the Utah bar's position on it. Furthermore, these letters
reiterate that there is no general counsel exception to the requirement
that a lawyer practicing law in Utah must be a member of the Utah bar.
Mr. Griffith's entire approach to the issue of his Utah bar
membership has been to suggest that he knew all along what he was doing
and took care to avoid any improper conduct. But a prudent and careful
person, aware of and being careful to abide by restrictions on his
activities, would have documented his actions. It seems clear to me
that much of Mr. Griffith's argument is simply a post hoc
rationalization. He has chosen to stick to his story and try and
convince the Senate that he was fully aware of the Utah license issue
from the beginning and acted at all times in accordance with part of
the advice he received only in 2003. I find Mr. Griffith's explanations
not credible and disdainful of his professional obligations. This is
not the kind of conduct that the public has a right to expect from
someone who will sit on the second most important court in the land.
Mr. President, I am not predisposed to vote against judicial
nominees. In fact, I have voted for over 90 percent of this President's
choices. Mr. Griffith served the Senate with distinction, and his
foremost supporter is the former chairman of the Judiciary Committee,
[[Page S6438]]
for whom I have great regard. But we have an affirmative duty to place
on the bench judges who adhere to the ethical standards of the legal
profession. I am not satisfied that Mr. Griffith meets that test, and I
will vote no.
The PRESIDING OFFICER. The question is, Will the Senate advise and
consent to the nomination of Thomas B. Griffith, of Utah, to be United
States Circuit Judge for the District of Columbia? The yeas and nays
have been ordered. The clerk will call the roll.
The assistant journal clerk called the roll.
Mr. McCONNELL. The following Senators were necessarily absent: the
Senator from Pennsylvania (Mr. Santorum), and the Senator from
Pennsylvania, (Mr. Specter).
Mr. DURBIN. I announce that the Senator from Vermont (Mr. Jeffords)
is necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 73, nays 24, as follows:
[Rollcall Vote No. 136 Ex.]
YEAS--73
Alexander
Allard
Allen
Baucus
Bennett
Biden
Bingaman
Bond
Brownback
Bunning
Burns
Burr
Carper
Chafee
Chambliss
Coburn
Cochran
Coleman
Collins
Conrad
Cornyn
Craig
Crapo
DeMint
DeWine
Dodd
Dole
Domenici
Dorgan
Durbin
Ensign
Enzi
Feinstein
Frist
Graham
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Inouye
Isakson
Kohl
Kyl
Levin
Lieberman
Lincoln
Lott
Lugar
Martinez
McCain
McConnell
Murkowski
Nelson (FL)
Nelson (NE)
Obama
Pryor
Reid
Roberts
Schumer
Sessions
Shelby
Smith
Snowe
Stevens
Sununu
Talent
Thomas
Thune
Vitter
Voinovich
Warner
NAYS--24
Akaka
Bayh
Boxer
Byrd
Cantwell
Clinton
Corzine
Dayton
Feingold
Harkin
Johnson
Kennedy
Kerry
Landrieu
Lautenberg
Leahy
Mikulski
Murray
Reed
Rockefeller
Salazar
Sarbanes
Stabenow
Wyden
NOT VOTING--3
Jeffords
Santorum
Specter
The nomination was confirmed.
The PRESIDING OFFICER. The President will be notified of the Senate's
action.
____________________