[Congressional Record (Bound Edition), Volume 151 (2005), Part 9]
[Senate]
[Pages 12247-12261]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

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

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will proceed to executive session and proceed to the 
consideration of Calendar No. 66, which the clerk will report.
  The assistant legislative clerk read the nomination of Thomas B. 
Griffith, of Utah, to be United States Circuit Judge for the District 
of Columbia.
  The ACTING PRESIDENT pro tempore. The Senator from Kentucky.
  Mr. McCONNELL. Mr. President, I ask unanimous consent that I be 
allowed to proceed as in morning business.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  (The remarks of Mr. McConnell are printed in today's Record under 
``Morning Business.'')
  The ACTING PRESIDENT pro tempore. The Senator from Utah.
  Mr. HATCH. Mr. President, is the Griffith nomination before the 
Senate?
  The ACTING PRESIDENT pro tempore. The Senator is correct.
  Mr. HATCH. Mr. President, I rise in support of the nomination of 
Thomas B. Griffith to serve as a judge on the United States Court of 
Appeals for the District of Columbia Circuit.
  Because Tom Griffith served as Senate legal counsel from 1995 to 
1999, many Members of this body are very familiar with his character, 
judgment, and record. For the benefit of those new members of this body 
and those members of the public who are not familiar with Tom Griffith, 
I want to spend the next few minutes detailing why his education, 
experience, and expertise make him an excellent nominee for this 
extremely important Federal court.
  As I will set forth, Tom has broad support on both sides of the 
aisle. In the far too often partisan debate over judicial nominations 
that has occurred over the last few years, it is refreshing to have 
before us a nominee whose past record of achievement has resulted in so 
many current supporters who are firmly convinced that his future 
service on the bench will be successful.
  One of the many reasons why I am particularly proud to support Tom 
Griffith is because he is a constituent of mine. Mr. Griffith serves as 
assistant to the president and general counsel of Brigham Young 
University.
  As might be expected, Tom has many supporters at BYU. Here is what 
associate dean and Professor Constance Lundberg at the J. Reuben Clark 
School of Law has to say about the nominee:

       [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.

  Tom also has his supporters among law school faculty off the BYU 
campus. For example, please listen to what Harvard Law Professor 
William Stuntz has said about the qualifications of Tom Griffith:

       I know a great many of talented men and women in America's 
     legal profession; I've 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 just be a good judge. He'll be a great 
     one.

  That is certainly strong praise and, as I remember law school, 
getting praise from law professors is never easy unless you truly earn 
it.
  In order to become the lawyer he is today, Tom received a solid 
education.
  Back in 1978, Mr. Griffith received his Bachelor's degree from BYU. I 
am proud to say that we both graduated from BYU. I am also proud to 
tell you that Tom graduated summa cum laude. For those of us who are 
proud to call Brigham Young University our alma mater, I want to note 
that BYU is our Nation's largest private university and is recognized 
by many as one of the finest institutions of higher learning anywhere 
in the world.
  Tom Griffith was the valedictorian of the BYU College of Humanities. 
He was chosen as the recipient of the prestigious Edward S. Hinckley 
Scholarship.
  Mr. Griffith pursued his legal studies at the University of Virginia 
School of Law. Once again, he distinguished himself by being selected 
as a member of the law review at the University of Virginia. This is an 
honor that very few law students achieve.
  Upon graduation from law school in 1985, Tom commenced his legal 
career as an associate in the Charlotte, NC, law firm of Robinson, 
Bradshaw and Hinson. During this time, Mr. Griffith was engaged in 
corporate, commercial, securities and employment litigation.
  In late 1989 Tom Griffith joined the well-known and highly regarded 
Washington, DC, law firm of Wiley, Rein and Fielding, first as an 
associate. Tom specialized and excelled in complex environmental 
insurance litigation and

[[Page 12248]]

regulatory investigations and was made a partner in the firm.
  Between March, 1995 and March, 1999, Tom Griffith served as Senate 
legal counsel. This is a highly demanding job as the Senate legal 
counsel advises the Senate on all legal matters related to the Senate 
including Senate investigations, the work of Senate committees, and 
defending acts of Congress and Senate resolutions.
  During his time as Senate legal counsel, Tom faced the many 
challenges of advising the Senate during the impeachment of President 
Clinton. If there was ever a circumstance to test the temperament of a 
lawyer, his ability to ascertain what the law is and what prudence 
dictates, and to provide objective legal advice in a fair and even-
handed manner in a highly charged atmosphere, surely it was the unique 
circumstances of the impeachment trial. By all accounts, Tom Griffith 
came through in flying colors.
  After the impeachment trial, Tom rejoined the firm of Wiley, Rein and 
Fielding for about one year before taking his current position in Utah 
as the general counsel of Brigham Young University.
  As you can tell from this thumb nail sketch of Tom Griffith's career, 
he is an achiever. He has had a terrific education and has done very 
well at very demanding schools. He has also distinguished himself in 
the practice of law with one of the great law firms in this country, as 
Senate legal counsel, and in his current capacity as assistant to the 
president and general counsel at BYU.
  Many have relied upon Tom Griffith for sound legal advice. That is 
because he is an excellent lawyer who provides excellent advice.
  Despite the claims on his time made by the various legal positions 
Mr. Griffith has held, he still found the time to take on a number of 
voluntary assignments that demonstrate a commitment to serving those in 
need. For example, between 1991 and 1995 Mr. Griffith spent several 
hundred hours of his own time attempting to overturn the sentence of a 
death row inmate. Ultimately, the strategy devised by Mr. Griffith was 
successful in obtaining a pardon by then-Governor, now-Senator George 
Allen on the eve of the scheduled execution.
  Tom has volunteered to represent disadvantaged public school students 
in disciplinary proceedings and has helped operate soup kitchens or 
people in need.
  I would also like to make my colleagues aware of Tom's interest in, 
and commitment to, the emerging democracies in Central Europe. For the 
last 10 years, Tom has worked on the American Bar Association's Central 
Eurasian Law Initiative, serving on the ABA Advisory Board in this 
area. In this capacity, he has helped train judges and lawyers in 
Croatia, Serbia, the Czech Republic and Russia. He has been very active 
in helping establish a regional judicial training center in Prague. Let 
me just mention what some of his peers in the international legal 
community have said about Tom Griffith.
  Here is what David Tolbert, the Deputy Registrar at the International 
Criminal Tribunal for the former Yugoslavia has said about Tom 
Griffith:

       Mr. Griffith is without question one of the best 
     professionals with whom I have worked, given not only his 
     capability as a lawyer but his integrity as a person. He also 
     shows an open-minded approach to legal and other issues, and 
     I have discussed many issues with him, a number of which we 
     come to at somewhat different angles, and his intellectual 
     honesty and integrity are outstanding.

  That is indeed high praise. Mr. Tolbert is not alone among those in 
the international legal community who have come to know Tom and speak 
highly about him.
  Mark Ellis, the executive director of the International Bar 
Association has made the following comments about Tom.

       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. As is natural in a 
     democracy, people will not always agree with Tom's decisions 
     from the bench. I will certainly not always agree with those 
     decisions. However, there will never be a question as to the 
     veracity behind them.

  I think that Mr. Tolbert and Mr. Ellis have made some important 
observations about Tom Griffith's competence and character.
  In addition to his international work in helping to bring democratic 
institutions into formerly totalitarian regimes, Mr. Griffith has also 
served as a Commissioner on the Secretary of Education's Commission on 
Opportunity in Athletics. There are many difficult issues that 
universities across the country face in operating balanced athletic 
programs vis a vis male and female athletes in a era of constrained 
budgets. Tom has been a constructive voice in this important dialogue 
and sometimes thankless task. I prepared to speak at further length on 
his activities in this area but will not do so at this point. I will 
tell you that--not surprising for a father of five daughters--Tom has 
worked, consistent with the law, to bring opportunities for women 
athletes.
  In addition to these activities, between 1996 and 2002 Tom Griffith 
served as vice chairman of the Federalism and Separation of Powers 
Practice Group of the Federalist Society. As a long time friend and 
supporter of the Federalist Society and its leader, Leonard Leo, I am 
pleased that Tom has provide his thinking and energy to the important 
areas of federalism and separation of powers.
  As befitting a man of his experience, Mr. Griffith has also given 
many speeches in educational settings that cover a wide variety of 
legal topics including, The Rule of Law; The Line Item Veto Act; 
Disciplining Congress: The Taxing and Spending Powers, and, of course, 
The Impeachment of President Clinton.
  In addition, Tom has authored several scholarly articles that have 
appeared in legal periodicals including his law review note, Beyond 
Process: A Substantive Rationale for the Bill of Attainder Clause and 
his more recent 2003 article in the Utah Bar Journal entitled, Lawyers 
and the Rule of Law.
  The record is clear that Tom Griffith is an accomplished lawyer and 
an outstanding member of the bar. Despite the many highlights of 
academic achievements and professional accomplishments that I have just 
reviewed, I have no doubt that Tom would describe his greatest joy in 
life as his 28-year marriage to his wife, Susan, and the six children 
that their marriage has produced. Tom and Susan have five daughters--
Chelsea, Megan, Erin, Victoria and Tanye and a son, Robert. Tom and 
Susan were recently made grandparents for the first time. They have a 
month old grandson, William Sawyer Watts. His parents are Chelsea and 
Eric Watts. I would be remiss if I did not mention that Tom's only 
other married child, Megan, is married to Ryan Clegg.
  I think it is both important and appropriate to note that Tom has 
pent considerable time in positions of leadership in his church.
  Now that I have spent a few minutes describing the basic facts out 
Tom Griffith's education and experience, I will spend the next few 
minutes making some qualitative judgments about him.
  I am all for Tom Griffith. Everyone knows that. I first became 
familiar with Tom through his work in the Senate. As Senate legal 
counsel, he impressed many in this body for being hard-working, fair-
minded, and honest. I am aware of no one who believes that he carried 
out his responsibilities as Senate legal counsel in a partisan manner.
  And let's face it, the role of Senate legal counsel is not an easy 
job. We all know about the challenges and difficulties associated with 
the impeachment trial. But let me just list a few other significant 
legal matters that Mr. Griffith handled while in the Senate.
  These include representing the Senate in various lawsuits relate to 
the Line Item Veto Act; advising the Senate of its institutional 
interests in the Senate campaign finance investigations held by the 
Committee on Government Affairs with respect to fund

[[Page 12249]]

raising of the 1996 elections; representing the Senate in the 
investigations related to the contested 1996 Louisiana Senate election; 
and, many matters, including a Senate subpoena directed to the White 
House, related to the Senate Whitewater investigation.
  You can see that the inherently controversial issues that the Senate 
legal counsel is compelled to confront could easily end up in making 
some particular Senators less than pleased from time to time. Add to 
that the mother of all contentious issues--a Senate impeachment trial--
and I hope you can see why a person like Tom Griffith, who came through 
the impeachment trial with bipartisan respect, might be exactly the 
type of individual we need on the DC Circuit.
  But do not take it just from me. I will spend the next few minutes to 
tell you what judgments that others--leading Republicans and Democrats 
alike--have made about Tom Griffith.
  Let me start by reciting from the testimony that my colleague from 
Utah, Senator Bennett, gave to the Judiciary Committee last fall. Here 
is what Senator Bennett said:

     . . . Tom Griffith really needs no introduction to the Senate 
     because he served as Legal Counsel to the Senate in what is 
     perhaps the Senate's most difficult experience, at least the 
     most difficult experience in the time that I have been here. 
     Tom Griffith was Counsel to the Senate when we went through 
     the historic impeachment . . . trial of President Clinton--
     only the second time in our Republic's history where the 
     Senate has had this kind of challenge. I was involved in 
     that, as were members of this Committee.
       The primary burden of dealing with that challenge fell upon 
     the two leaders, Senator Lott as Majority Leader and Senator 
     Daschle as the Minority Leader. I watched with interest and 
     then admiration as Tom Griffith negotiated through that 
     particular mine field, giving very sound, calm, carefully 
     researched and reasoned advice to both sides. He was not a 
     partisan counsel. From my observation, Senator Daschle was as 
     reliant upon Tom Griffith's legal expertise as was Senator 
     Lott.
       If I can take us back to the memory of that experience, 
     virtually everyone around us in Washington predicted a melt-
     down. The comment was made that this case was toxic. It had 
     soiled the House of Representatives and it was going to soil 
     the United States Senate.
     . . . the Senate came out of that experience with its 
     reputation enhanced rather than soiled, and to no small 
     degree that fact . . . is due to Tom Griffith.
       There are very few nominees for the Federal bench who have 
     had the experience of going through that kind of fire, who 
     have had their judicial temperament tested in that kind of an 
     atmosphere. Tom Griffith therefore comes before this 
     Committee unique in terms of his experience and with the 
     Senate as a whole, and indeed in the national spotlight.

  I think that there is much wisdom in Senator Bennett's reflections. I 
understand that Senator Bennett will come to the floor this afternoon 
and make some remarks about Mr. Griffith. I hope my colleagues will 
listen carefully to my colleague and friend from Utah.
  Unlike the vast majority of the nominees the Senate reviews, judicial 
and executive branch, many of us have had the chance to know Tom 
Griffith personally and to see how he acts under extremely stressful, 
and sometimes extremely partisan, circumstances. He has more than 
passed the test. Tom Griffith has been in the crucible of major 
political and legal events. He performed well under the sometimes 
scorching heat of the situation and helped all of us get through that 
unique test.
  But do not take it from me and Senator Bennett alone, after all we 
are both Republicans and Mr. Griffith is our constituent. Here is what 
some leading Democrats have said about Tom Griffith.
  Let me start with Senator Dodd, our colleague from Connecticut. Upon 
Mr. Griffith's departure from the Senate, Senator Dodd made the 
following remarks on the Senate floor:

       Mr. DODD. As an original cosponsor of the resolution, I 
     rise today to add my remarks in support of, and in gratitude 
     to, our former Senate legal counsel, Mr. Tom Griffith.
       It is always with mixed emotions that I speak on occasions 
     such as this. While I am glad for Tom and wish him well in 
     his return to private practice, I know that the Senate will 
     miss the wise counsel and dedication he demonstrated during 
     his nearly 4 years of service to this body.
       The ancient Chinese had a curse in which they wished their 
     victim a life ``in interesting times''. For better or for 
     worse, Tom lived such a life as Senate legal counsel. From my 
     place on the Rules Committee--first as a member and now as 
     Ranking Member--I had a unique perspective on the legal 
     counsel's efforts to deal with numerous ``interesting'' 
     issues presenting novel, rare, and in some cases, historic 
     issues, including implementation of the Congressional 
     Accountability Act, resolution of the Louisiana election 
     challenge, and, of course, the recent impeachment trial. 
     Speaking for myself--and, I suspect, most of my colleagues--I 
     must say that Tom handled those difficult responsibilities 
     with great confidence and skill.
       A more contemporary observer--and one of Connecticut's most 
     famous residents-- Mark Twain, once suggested: ``Always do 
     right--this will gratify some and astonish the rest.'' During 
     his tenure as legal counsel, Tom exemplified this philosophy, 
     impressing all who knew him with his knowledge of the law and 
     never succumbing to the temptation to bend the law to 
     partisan ends. All of us who serve here in the Senate know 
     the importance of the rule of law; but let us never forget 
     that it is individuals like Mr. Thomas Griffith whose calling 
     it is to put that ideal into practice.
       Once again, I wish to express my gratitude to Tom for his 
     years of service, and I ask that my colleagues join me in 
     supporting this resolution.

  To me, these comments by Senator Dodd speak volumes about the precise 
qualities we should all want in our judiciary.
  As an old litigator myself, I can tell you that it is possible for 
layers arguing against each other, fighting tooth and nail against each 
other every day, to come out of litigation with mutual respect. Of 
course it is possible for adversarial advocates to come out of trial 
with less than admirable feelings towards one another.
  Whatever your views on the merits of President Clinton's impeachment, 
I think that most everyone would agree that David Kendall and Lanny 
Breuer were zealous advocates in the President's defense.
  So was Chuck Ruff. We all miss him. He was a good man and a great 
lawyer.
  As you would imagine, during the course of the impeachment trial both 
David Kendall and Lanny Breuer got to know Tom Griffith. They came to 
respect him.
  I am prepared to debate more extensively on some concerns that have 
been raised and may be raised today about Mr. Griffith's bar 
membership. I might add that the ABA has looked into this matter very 
carefully and gave Mr. Griffith a qualified rating. And you would think 
that if the ABA was satisfied on a matter relating to bar membership, 
that this should put the matter to rest.
  Nevertheless, some questions have been raised. This issue has been 
fully explored and, I think, put to rest in two Judiciary Committee 
hearings on Tom Griffith. In any event, it has been the subject of a 
few stories in the press. I might add that one of the newspapers that 
carried this story, The Washington Post, ultimately editorialized in 
support of the nomination of Mr. Griffith.
  I thought it noteworthy that two leading Democratic lawyers, David 
Kendall and Lanny Breuer, undertook a public act by writing a letter to 
the editor to the Washington Post that stated as follows:

       For years Tom has been a leader in the bar and has shown 
     dedication to its principles. The Federal bench needs judges 
     like Tom, an excellent lawyer supported across the political 
     spectrum.

  Their letter goes on to say: ``We support Tom and believe he has the 
intellect and judgment to be an excellent judge. ``
  I want to emphasize that these are President Clinton's lawyers 
talking about a Republican judicial nominee--Tom Griffith--whom they 
got to know during the Senate impeachment trial.
  But they are hardly alone. Many other leading Democratic lawyers hold 
Tom Griffith in high esteem. These include Seth Waxman, solicitor 
general of the United States in the Clinton Administration. Here is 
what Mr. Waxman wrote to The Washington Post in the aftermath of its 
story on Mr. Griffith's bar status:

       I have known Tom since he was Senate legal counsel and I 
     was Solicitor General, and I have the highest regard for his 
     integrity . . . For my own part, I would stake most 
     everything on his word alone. Litigants would be in good 
     hands with a person of Tom Griffith's character as their 
     judge.


[[Page 12250]]


  That is high praise from one of the most skilled Supreme Court 
practitioners in this country. And once again, I point out that it is 
coming from a leading Democratic lawyer in support of one of President 
Bush's judicial nominees.
  Support for Tom Griffith is equally vigorous on the part of leading 
Republican lawyers. Despite having been recently exposed as not being 
Deep Throat--after 30 years of speculation to the contrary--Fred 
Fielding, former White House Counsel to President Reagan, is still 
properly regarded as one of the best lawyers in Washington, DC, or 
anywhere else for that matter. Tom Griffith was his law partner so they 
know each other well.
  Mr. Fielding, the former chairman of the American Bar Association's 
Standing Committee on the Federal Judiciary, has described Mr. Griffith 
as ``a very special individual and a man possessed of the highest 
integrity. He is a fine professional who demands of himself the very 
best of his intellect and energies.''
  Speaking of former White House Counsels supportive of Tom Griffith, I 
would like to point out that Abner Mikva, a leading Democratic 
attorney, firmly supports Tom Griffith. Abner Mikva was a Democratic 
Congressman, and a Democratic appointee to the very court to which Mr. 
Griffith has been nominated to serve. Here is what he says about Mr. 
Griffith:

       Tom Griffith will be a very good judge. I have worked with 
     him indirectly while he was counsel to the Senate and more 
     directly as a major supporter to the . . . Central and 
     Eastern European Law Institute of the American Bar 
     Association. Tom was an active member of CEELI's advisory 
     board, and he and I participated in many prospects and 
     missions on behalf of CEELI.
       I have always found Tom to be diligent, thoughtful and of 
     the greatest integrity. I think that the bar admission 
     problems that have been raised about him do not reflect on 
     his integrity. Rather, they appear to be understandable 
     mistakes and negligence which cannot be raised to the level 
     of ethical behavior. Tom has a good temperament for the 
     bench, is moderate in his views and worthy of confirmation.

  I think that Judge Mikva, a leading Democrat got it exactly right. 
Tom is a man of high integrity and competence. Problems stemming from 
failure to timely pay bar dues--a problem that besets some 3,000 
members of the District of Columbia Bar Association each and every year 
and was immediately corrected by Mr. Griffith when brought to his 
attention--should not be artificially magnified. As Judge Mikva has 
commented on this issue: ``. . . this is a whole lot of nothing.''
  And that assessment--a whole lot of nothing--is from the former chief 
judge of the DC Circuit, former White House counsel to President 
Clinton and former Congressman. If during this debate somebody tries to 
make something out of nothing with respect to the bar membership issue, 
I just want you to remember what Ab Mikva has concluded because he has 
a lot of experience in making these type of judgments from his time in 
Congress, at the White House, and on the bench.
  Unfortunately--and with apologies to George Gershwin's Porgy and 
Bess--sometimes in judicial confirmations, nothing's plenty for some.
  Those who have known and worked with Tom Griffith praise him. Another 
name partner of Mr. Griffith's old firm, Richard Wiley, has this to say 
about him: ``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 DC Circuit and the 
Federal Judiciary as a whole.''
  While Dick Wiley is a leading Republican attorney, not all of the 
attorneys at the firm he founded are Republicans. Here is what Tom 
Brunner of Wiley, Rein and Fielding has to say about Tom Griffith.

       I offer these views from the perspective of a life-long and 
     politically active Democrat. While Tom and I don't always 
     agree on partisan political issues, I have the highest regard 
     for his integrity and for his open-mindedness. As a judge, he 
     would approach each case without prejudice, with a 
     willingness to be educated and considerations he did not 
     previously understand and a rock-solid commitment to 
     fairness.

  Last year I received a letter from 13 leading Democratic attorneys, 
including former Representative Jim Slattery, Bill Idle, President of 
the ABA in 1993-1994, and Sandy D'Alemberte, President of the ABA in 
1991-1992. Here is what this distinguished group of Democratic lawyers 
had to say about Tom Griffith:

       Each of us has had extensive contact with Tom and believes 
     him to be extremely well qualified for service on the DC 
     Circuit. For years Tom has been a leader in the bar and has 
     shown dedication to its principles. The Federal bench needs 
     people like him, one of the best lawyers the bar has to 
     offer. We urge the Senate to confirm his nomination.

  I must say that I heartily join them in urging the Senate to confirm 
Tom Griffith to the DC Circuit.
  Over the past several years, we have heard many criticize President 
Bush for nominating individuals that my friends across the aisle find 
too divisive. As I have just shown, in nominating Tom Griffith, 
President Bush has made a conscious attempt to submit the name of an 
individual that has broad bipartisan support.
  I just hope that my colleagues across the aisle will recognize the 
simple fact that President Bush is offering a nominee that he hopes, 
and I hope and expect, will gain a broad bipartisan vote of support.
  I was pleased that despite some concern expressed by some Democrats 
on the Judiciary Committee that Tom Griffith received the support of 
many Committee Democrats, including the support of both Senators Durbin 
and Schumer, both of whom who would acknowledge the fact that they are 
sometimes among the toughest critics of President Bush's judicial 
nominees.
  The minority leader, Senator Reid, has expressed a willingness to 
bring the Griffith nomination up for a vote and I hope that he supports 
Mr. Griffith.
  Tom Griffith is an extraordinarily qualified nominee. He has the 
education, experience, judgment, and character to make a fine judge. 
Those of you who worked with him while he was Senate legal counsel know 
this to be the case. I ask that those of you who are new to this body 
or did not work with Mr. Griffith while he was here ask the opinion of 
those of us who were in the Senate and worked closely with him.
  I am old-fashioned enough to believe in the notion of the Senate 
family. Tom Griffith is part of the Senate family. I, and many of my 
Senate colleagues, have reputations for helping deserving members of 
the Senate family because we recognize that some of the most public-
spirited individuals in our country choose to work in the Congress, 
including some of our most energetic, smart and idealistic young 
people.
  I also recognize that given the extraordinary capabilities of staff 
members, such as Tom Griffith, it is only fitting and natural for 
Congressional staff to move into positions of great responsibility 
within the judicial and executive branches of government. So I always 
try to help along and give the benefit of the doubt to Congressional 
staffers who are nominated to serve by the President--any President, 
Republican or Democrat.
  I take great pride in lobbying on behalf of a former Democratic Chief 
Counsel of the Judiciary Committee, Stephen Breyer, to serve on both 
the 1st Circuit Court of Appeals and the Supreme Court.
  I would hope that my colleagues will continue to join me in this 
approach of recognizing those who have done well for the American 
public in serving the Senate.
  I urge my colleagues to act to send Tom Griffith off to the DC 
Circuit with the type of broad bipartisan confirmation vote that 
reflects the broad bipartisan support that his nomination has 
engendered.
  For me, this is an easy vote. I know Tom and his record. I hope that 
after all of my colleagues have considered his qualifications, it will 
be an easy vote for them as well. Tom Griffith is a good man and has 
what it takes in terms of education, intelligence, judgment and 
character, to become a great judge.
  I urge my colleagues to vote in favor of Tom Griffith to serve on the 
DC Court Circuit.

[[Page 12251]]

  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Vermont.
  Mr. LEAHY. Mr. President, what is the parliamentary situation?
  The ACTING PRESIDENT pro tempore. Under the previous order, there was 
4 hours of debate evenly divided.
  Mr. LEAHY. I thank the Chair. I will take such time as I may need.
  Mr. LEAHY, Mr. President, I oppose the nomination of Thomas Griffith 
to the U.S. Court of Appeals for the DC 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 DC 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.
  The DC Circuit is an especially important court in our Nation's 
judicial system for its broad caseload covering issues as varied as 
reviews of Federal regulation on the environment, workplace safety, 
telecommunications, consumer protection, and other critical Federal 
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. 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 from President Bush to be considered by the Senate. If 
confirmed the eleven 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 DC Circuit, Mr. Griffith knows full well that I think 
he has not honored the rule of law by his practicing law in Utah for 
five years without ever bothering to fulfill his obligation to become a 
member of the Utah Bar.
  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. According to his answers to 
my questions, he has taken no steps to fulfill the requirements for 
practicing law in Utah by taking the Utah bar exam and becoming a 
member of the Utah Bar. He was also derelict in his duty toward the DC 
Bar, and 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 three years.
  As was reported last summer in The Washington Post, and confirmed 
through committee investigation, Mr. Griffith has spent the last five 
years practicing law in Utah as the General Counsel to Brigham Young 
University. 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.
  Mr. Griffith has so far foregone ten opportunities to take the Utah 
bar exam while applying for and maintaining his position as general 
counsel at BYU. 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. Neither has Mr. 
Griffith yet satisfactorily explained why he obstinately refuses to 
take the Utah bar.
  This is not Mr. Griffith's first or only bar problem. He was 
suspended for failing to pay his DC Bar dues and then misled this 
committee on the facts of that suspension as well as other late 
payments. Contrary to his misleading testimony at his hearing, it seems 
that the only year Mr. Griffith actually paid his DC bar dues on time, 
after coming to the Senate in 1995, was in 1995. Two suspensions from 
the practice of law in two years, three late or non-existent payments 
in four years, and an attempt to mischaracterize this embarrassing 
record are hardly just an 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 DC 
dues, is his lack of concern about the implications of having practiced 
law in DC without proper licensure. When I asked him if he had notified 
his clients or law firm from the period he was suspended, he brushed me 
off, telling me that his membership in good standing was reinstated 
once he got around to paying his unpaid dues. Of course, that ignored 
my question, which was about the ramifications of having been suspended 
for two separate periods over the course of years while he continued to 
practice. Clients and partners should have been notified and courts 
should have been informed.
  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 DC 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. 
Practicing law without a license is a serious matter.
  The facts surrounding Mr. Griffith's nonexistent membership in the 
Utah bar are even more troubling. He began his service as assistant to 
the president of the university and general counsel of BYU in 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. Mr. Griffith's own testimony 
is that for the last five years, as part of his responsibilities as BYU 
general counsel, he has been practicing law in Utah.
  So, what made Mr. Griffith think he could practice law without being 
a member 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.
  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

[[Page 12252]]

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.
  The general counsel of the Utah bar, Katherine Fox, wrote to Mr. 
Griffith on May 14, 2003, telling him she was ``surprised'' he thought 
there was a general counsel exception, and explained that there was no 
way under his circumstances to waive into the Utah bar without taking 
the bar exam. This response from a career lawyer in the Utah bar made 
before political pressure was ratcheted up to defend a Republican 
nominee seems pretty straightforward to me. In plain, simple to 
understand words, Ms. Fox instructed Mr. Griffith to take the bar 
examination at the earliest opportunity. That was more than two years 
ago. Mr. Griffith refused to comply.
  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 mischarac-
terized 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.
  There are more reasons for serious concern about Mr. Griffith's 
fitness to be a member of the DC Circuit Court. His judgment is 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 DC 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 United States 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.
  I also note that during the Clinton presidency, Senate Republicans 
ensured that the 11th and 12th judgeships on the DC Circuit were not 
filled. They had argued since 1995 that the caseload of the DC Circuit 
did not justify a full complement on the court. Indeed at a 1995 
hearing, they called Judge Laurence H. Silberman of the circuit to so 
testify. 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 
to Senator Kyl, Judge Silberman argued that the DC Circuit's caseload 
continued to decline from 1995 to 2000 and to oppose confirmation of 
additional Clinton nominees.
  In fact, the DC Circuit caseload has continued to decline and in 2004 
was less than it was in 1999, when Senate Republicans refused to 
consider two highly qualified and moderate nominations by President 
Clinton to vacancies on the circuit. With the confirmation of Janice 
Rogers Brown to that court, there are now ten confirmed, active judges 
for the DC Circuit, which is what Republicans maintained was 
appropriate since 1999.
  With all the self-righteous talk from the other side of the aisle 
about their new-found principle that every judicial nominee is entitled 
to an up or down vote, the facts are that in 1999 and 2000 the 
nomination of Elena Kagan to the DC Circuit was pocket filibustered by 
those same Senate Republicans. Ms. Kagan is now dean of the Harvard Law 
School. Qualified? Yes. Was she given consideration in a Republican run 
Senate? Not on your life. Likewise the nomination of Allen Snyder to a 
vacancy on the DC Circuit was never voted upon. Mr. Snyder is a former 
clerk to Chief Justice Rehnquist and was a highly respected partner in 
a prominent DC law firm, the same law firm from which President Bush 
nominated John Roberts to the same court. Senate Republicans pocket 
filibustered President Clinton's nomination of Mr. Snyder but 
unanimously supported the confirmation of Mr. Roberts. Senate 
Republicans played a cruel joke on Mr. Snyder when they allowed him a 
hearing but would never list him for a vote before the Judiciary 
Committee or the Senate.
  In September 2002, Senator Sessions explained that Clinton nominees 
Elena Kagan and Allen Snyder were blocked: ``Because the circuit had a 
caseload about one-fourth the average caseload per judge. And the chief 
judge of the circuit said 10 judges is enough, instead of 12. And I 
actually thought that was too many. I thought ten was too many.''
  Well, the DC Circuit's caseload per judge is lower now than it was 
during the Clinton administration. Let us see whether the votes of 
Republican Senators this time will be based on the same rationale they 
gave to pocket filibuster 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 opposition to recess appointments, reverse 
himself to vote for a Bush judicial recess appointment. Last week we 
witnessed dozens of Republican Senators, who had voted against 
confirmation of Ronnie White of Missouri in 1999 and 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.
  Tomorrow we will see whether the many Republican Senators who delayed 
and opposed the confirmation of Judge Merrick Garland in 1996 and 1997 
and who pocket filibustered the nominations of Allen Snyder and Elena 
Kagan in 1999 and 2000 will vote against a Bush nominee to the DC 
Circuit because the caseload of the circuit does not justify more 
judges. Tomorrow we will see if many Republican Senators again retreat 
from their earlier rationale because today a Republican controls the 
White House.
  Mr. President, I yield the floor.
  The ACTING PRESIDENT pro tempore. Who yields time?
  Mr. LEAHY. Mr. President, I suggest the absence of a quorum and ask 
unanimous consent that the time be equally divided.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. DORGAN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.

[[Page 12253]]

  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. DORGAN. Mr. President, I ask unanimous consent to speak as in 
morning business for as much time as I may consume.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.


                  Concentration of Media Broadcasting

  Mr. DORGAN. Mr. President, a couple of things have happened in the 
last several days that I want to visit. First, I wish to talk for a 
moment about public broadcasting and, secondly, to talk about a Supreme 
Court decision that was announced this morning here in Washington, DC, 
and the relationship between the two.
  First, I will talk about public broadcasting. I confess I am a big 
supporter, a big fan of public broadcasting. I think they are an 
organization that provides an independent view of a range of issues to 
the American people. The Corporation for Public Broadcasting, public 
television, and public radio, I think, provide a significant service to 
this country.
  In a time when there is this enormous concentration in the media, 
more and more television stations are being bought up by fewer and 
fewer companies--one company owns over 1,200 radio stations in this 
country--the Federal Communications Commission writes new rules that 
get overturned by the courts, frankly, that say you can even buy up 
more of these properties. In fact, the rules the Federal Communications 
Commission developed some while ago said it is going to be all right in 
one of America's major cities for one company to own three television 
stations, eight radio stations, the dominant newspaper, and the cable 
company. That is unbelievable. Are they dead from the neck up? What 
possibly could they be thinking?
  Fortunately for us, the Federal courts struck down the new rules and, 
fortunately for us, this morning the Supreme Court decided that the 
court had justification in striking down these new ownership rules.
  Again, I do not think it makes any sense to have a handful of people 
in this country determining what the American people see, hear, and 
read, and that is exactly what is happening.
  That brings me back to public broadcasting. It is interesting that at 
a time of this concentration in the media--one company owning a lot of 
radio stations, 1,200 of them, one company and several companies owning 
a lot of television stations--at a time when there is not much room for 
discord and voices, which, incidentally, I think strengthens a 
democracy.
  There is this old saying when everyone is thinking the same thing, 
nobody is thinking very much. This democracy of ours, this system of 
self-government, this country that is full of self-expression is 
strengthened, in my judgment, by an exchange of views of people who 
have different views. But that, regrettably, is seen somehow as being 
disloyal these days.
  Oh, I know, someone in the Dixie Chicks said something that was 
unpopular about the President, and then we had tractors driving over 
the CDs from the Dixie Chicks and big rallies to burn their music. Just 
before the last election, one television consortium decided they were 
going to run a clearly partisan film designed to attack only one 
Presidential candidate and not allow time for the opposing view. This 
was a television consortium that nearly every single night was doing 
editorials against one of the Presidential candidates.
  In Minot, ND, late one evening, a train ran the tracks and some cars 
of anhydrous ammonia spilled a plume over that community of nearly 
50,000 people, and that deadly cloud of anhydrous ammonia enveloped 
that community at about 2 o'clock in the morning. There is some 
disagreement about the events of that night, but reports are that the 
telephone calls went to the local radio station, and were not answered. 
All the radio stations in Minot are owned by one company.
  What is happening in these broadcast facilities these days is they 
are running a broadcast out of a board someplace 1,000 miles away, 
someone who is homogenizing the music to run it through the local 
station. There is no local broadcasting in many cases. What you have is 
a company 1,000 miles or 1,500 miles away deciding they are going to 
run some homogenized music through the sound board. You do not even 
need people around to do that.
  The Minot, ND, story is one that has been well repeated. I know there 
is some dispute about a number of the details, but the fact is, there 
should not be any dispute about what is happening with this 
concentration. We now have people who sit in a basement, perhaps 20, 30 
miles from here--one of the examples I heard was over in Baltimore, a 
guy sitting in a basement studio saying: It is sunny in Salt Lake City. 
What a beautiful morning to wake up in Salt Lake City. He was not in 
Salt Lake City. He was in a basement in Baltimore.
  He was reading off the Internet, pretending he was broadcasting to 
the local folks over the local station in Salt Lake City. They have a 
term for that. They also have a term for the kind of homogenized 
television news that is put out by people who are not in your region to 
make it look like it is locally produced news.
  We have this massive concentration in the media, which I think is 
awful, the FCC promoted rules that says we will let them concentrate 
even further. As I said, in a major city, under the FCC rule, one would 
be able to own eight radio stations, three television stations, the 
cable company, and buy the dominant newspaper all at the same time. I 
think it was one of the single most complete cave-ins to the biggest 
corporate interests in this country I have ever seen: The public 
interest be damned.
  The FCC had three-quarters of a million people write to it to say: Do 
not do this. It did not matter to them. They just did it. Now they have 
been enjoined by a court. The Supreme Court says they cannot continue 
and so now they have to start over. Perhaps when they start over they 
will understand they also have a responsibility to work for the public 
interest, which brings me to public television.
  A couple of things are kicking around about public television. Last 
week, I believe on Thursday or Friday, the appropriations subcommittee 
in the House decided to cut funding for public broadcasting. The cut in 
funding probably meets the interests of some who would like to abolish 
it. I do not know. I know we had one of our colleagues some years ago 
decide to get in a big fight with Big Bird and, frankly, Big Bird won. 
Public broadcasting is widely supported in this country.
  In recent years, we have heard a drumbeat by people who say public 
broadcasting, public television, public radio, is biased. It has a 
liberal bias, they say. No evidence of that, to my knowledge. Still, 
the mantra seems to try to brand it as something that is anathema to 
fairness or balance.
  The other day I called Mr. Tomlinson, who is the Chairman of the 
Board of the Corporation for Public Broadcasting. He has been in the 
news a great deal. In fact, as Chairman, he is one who has made the 
point that he believes that some of the programming is not balanced, is 
in fact biased towards the liberal view.
  I talked to Mr. Tomlinson by telephone the other day. I do not know 
him. I do not have anything bad to say about him. But I called him 
because of what I had read in the public domain that he has said as 
chairman of the board.
  I knew he had hired, with public funds, a consultant to come in and 
take a look at programming, particularly Bill Moyers', called ``NOW,'' 
I believe it was titled, to see if it was fair. I will not use ``fair 
and balanced'' because that belongs to another brand.
  So I wrote to Mr. Tomlinson and asked: Why do you not send me the 
work papers, send me the summary. I would like to see this report that 
you empaneled with public funding. He did. He sent me what he called 
the raw data. The raw data is here. This is raw, certainly, and I guess 
it is data, but there is no summary. So I called to ask: Would you 
please also send me summary.

[[Page 12254]]

  If one looks through the raw data, it is unusual and strange. I will 
not enter this into the record. I will not put all of this information 
into the record. I am not going to read from all of it. I am still 
awaiting a summary. But I must say that the Chairman of the Board of 
the Corporation for Public Broadcasting hired a consultant to do an 
evaluation of programming. Then we have all of these sheets that 
describe the guests and it says: anti-Bush, anti-Bush, pro-Bush, anti-
Bush. It appears to me to be not so much an evaluation of is this 
slanted, is it liberal, does it have an agenda; it is the evaluation of 
is this program critical of the President?
  Is that why a consultant was employed, to see whether public 
broadcasting is critical of our President? God forbid that we would be 
critical of the President of the United States.
  I find it interesting that in this evaluation--this one is 
incidentally conservative/liberal, C or L. This was not anti-Bush but C 
or L. My colleague, Senator Hagel from Nebraska, appeared on one of the 
programs, and he apparently disagreed with a portion of President 
Bush's strategy with respect to Iraq. So my colleague, Senator Hagel, 
is referred to as liberal. He is a liberal contributor to National 
Public Radio. My guess is that is going to surprise a lot of 
Nebraskans.
  If he were on the floor he would probably say he is a pretty good 
conservative Republican, someone for whom I have deep admiration, but 
he kind of claimed the liberal status according to the consultant.
  This is pretty unseemly, frankly, spending public money on a 
consultant who then sits down and looks at all of these programs to see 
if something is being said that might be critical about a President or 
Congress.
  Well, I guess that is enough to say about this particular report. I 
will await the summary, but as someone who supports public broadcasting 
and thinks it contributes a great deal to this country--and by the way, 
who do my colleagues think has been willing to do programs about the 
concentration of media ownership in this country, about the fact that 
one company has gobbled up over 1,200 radio stations and fewer people 
are involved in what we hear, what we see and what we read in this 
country because they are gobbling up all the television stations as 
well? Who do my colleagues think has the guts to do programs on the 
question of what does the concentration in the media mean in America?
  Is it ABC, or CBS, or NBC? Get real. Do my colleagues think they are 
going to do that? They are involved in the concentration. Public 
broadcasting did it. Public broadcasting is willing to take this on.
  How about a program that describes waste in the Defense Department? I 
am on the Defense Appropriations Subcommittee. I feel very strongly 
about our country having a strong defense. I feel passionate about 
supporting men and women who wear this country's uniform. We need to 
honor them and support them in every way possible. I also happen to 
think that the Pentagon is one of the largest bureaucracies in the 
world, and there is massive waste there. So public television did one 
program in which they talked about waste over at the Pentagon. Do you 
know how that is described? Antidefense. God forbid that you should 
describe waste at the Pentagon because then you will be classified, 
according to this consultant, as antidefense.
  Let me describe something that was going on deep in the bowels of the 
Pentagon about a year and a half ago. They spent about $8 million, and 
they were going to create what was called a futures market for 
terrorism. It was basically supposed to be an online betting parlor.
  For example, you would be able to bet on such things as: How many 
American soldiers would be killed in the next year? Would the King of 
Jordan be assassinated within the next 12 months?
  Yes, that is exactly what the Pentagon was preparing to put up and 
operate in a real way on the Internet. They were within 3 days of doing 
it, and they wanted $8 million to continue it for the next fiscal year.
  Senator Wyden and I discovered what they were trying to do. We blew 
it wide open. We had a press conference, described what they were 
doing, had on the Internet to show that they were only days away from 
implementing this crazy strategy, and the next day, the Department of 
Defense shut it down.
  At the press conference, I said this idea of setting up an online 
betting parlor to take bets on terrorism was unbelievably stupid. Can 
you imagine, setting up a futures market by which Americans can buy 
futures contracts and effectively bet on how many soldiers will be 
killed in the coming year? That is exactly what was going to happen in 
the bowels of the Pentagon.
  Just as an aside, one of my staff people, about 4 months later, used 
a Google search and typed in the words ``unbelievably stupid,'' and my 
name came up. That is the danger of Google, I suppose.
  But the fact is, what was happening in the bowels of the Pentagon 
was, in fact, unbelievably stupid and a tragic waste of the taxpayers' 
money and very unseemly, so we shut it down. Would that be called 
antidefense? I guess so. I guess, according to this consultant, that is 
antidefense. It may even be anti-Bush, I don't know.
  On top of all this, the attack on public broadcasting by cutting the 
funding in the U.S. House, by hiring a consultant--unknown to the 
Board, by the way--with public funding to try to determine what is 
anti-Bush and pro-Bush or liberal or conservative--on top of all that, 
last week, the Washington Post reports that the search for the new 
president of the Corporation for Public Broadcasting has narrowed. I 
don't know whether it is true. I am just telling you what was in the 
papers last week. It has narrowed to two candidates, and the leading 
candidate is a former co-chair of the Republican National Committee. A 
former co-chair of the Republican National Committee they are going to 
make head, the president of the Corporation for Public Broadcasting? I 
don't think so. At least those who worry about bias, those who worry 
about objectivity, ought not be thinking about presenting to this 
Congress something as unprecedented as that.
  I want public broadcasting in this country to be what it has always 
been: a proud symbol of independence, willing to search for the truth 
wherever it exists and willing to take on tough subjects. I mentioned 
that it falls to the Public Broadcasting System to air the programs 
about concentration in the media. Do you know why? Because FOX News is 
not going to do it, CBS is not going to do it, NBC and ABC won't do it. 
So the American people will be spoon-fed this intellectual pabulum that 
says: All this is really good. If one company owns all the radio 
stations in your town, good for you.
  It is not good for you. Who is going to broadcast the local baseball 
games? Who is going to broadcast the local parade? Who is going to 
report on local issues, when someone in a basement in a city not far 
from here is broadcasting over a radio station in Salt Lake City and 
pretending to be living there when, in fact, they have never set foot 
in the town?
  Enough about that--only to say that some of us in this Chamber and 
some of us in Congress care very deeply about the Corporation for 
Public Broadcasting, about public television and public radio. I happen 
to listen to NPR, National Public Radio, on the way in the mornings, in 
to work in the Capitol. I think it is some of the best news you can 
find.
  Let me say I listen in the evening, when I can, to Jim Lehrer. I 
challenge you to find a better newscast than that which exists on 
public television. There are those who believe they want to abolish 
funding for it. If there are those who believe they want to have a 
former co-chair of the Republican National Committee now assume the 
presidency at a time when they themselves have raised all these 
questions and hired consultants about objectivity, I want them to know 
they are in for a fight because some of us care deeply about the future 
of public broadcasting in this country.

[[Page 12255]]

  I wish to talk just for a moment about an announcement last week. 
Coming in, listening to the radio this morning, I heard a report that 
the dollar had strengthened just a bit recently. It has strengthened on 
the news that last Friday, at 8:30 in the morning, our trade deficit 
was announced, and our trade deficit last Friday was announced to be 
only $57 billion. It actually went up to $57 billion, a significant 
increase from the month before, but a bit less than had been expected. 
On the strength of that, the dollar improved a little bit because the 
currency market, which is probably on medication of some type, believes 
that is marginally good news.
  This is the fourth highest monthly trade deficit in the history of 
this country, the fourth highest trade deficit ever. What it means is 
we are drowning in a sea of red ink. Going back to 1998, these are our 
monthly trade deficits on this chart. It means we are buying more from 
abroad than they are selling, importing much more than we are 
exporting. So each day, we sell about $2 billion worth of America. Each 
and every day, 7 days a week, we sell about $2 billion worth of our 
country.
  This is what we expect. If we take a look at the first 4 months of 
trade deficits this year, it is 22 percent higher than last year. You 
see, last year was a big record. This year, we are probably headed 
toward $750 billion in the annual trade deficit.
  To a lot of people, the trade deficit doesn't matter; it is just a 
term. There is nobody in this Chamber wearing a dark-blue suit who is 
ever going to lose his job because of a trade deficit. It is just folks 
working on production lines and working for American companies who 
discover that this trade deficit means we are buying from abroad what 
we used to buy at home and sending American jobs abroad. We are firing 
the workers at home and doing it relentlessly, day after day after day.
  There are some who say, ``I know you are using these statistics and 
this data, but what really matters is how it relates to the entire 
economy.'' You can see how it relates to the economy. It is going up, 
up as a percent of our GDP.
  Finally, while our trade deficit is a serious problem with Japan, 
with Canada, with Mexico, with Europe, this is the 500 pound gorilla--
China. It is a dramatic problem.
  I have spoken at length. Some do not want to hear it anymore, but it 
is worth saying again because, you know, repetition is important, at 
least for slow learners. For others, it is important just to remember. 
Let me describe some specific examples.
  Incidentally, I notice the Presiding Officer smiled a bit. I am not 
speaking about anyone in this Chamber being a slow learner. These are 
all advanced learners who serve in the Senate, I am sure. But let me 
describe some stories, if I might. I have used them all.
  Huffy bicycles. In fact, I got a letter from Huffy bicycles. They 
didn't like what I said. Huffy bicycles used to be made in Ohio. It was 
20 percent of the bicycle market in the United States. You buy them all 
at Wal-Mart, Kmart, Sears. The people in Ohio who made Huffy bicycles 
actually put a little decal between the handle bar and the front 
fender. The decal was the American flag.
  The workers in Ohio who made Huffy bicycles were fired because they 
were making $11 an hour plus benefits, and their jobs went to China for 
30 cents an hour by people who work 7 days a week, 12 to 14 hours a 
day.
  The last job performed by those folks in Ohio was to take off the 
little flag decal on the Huffy bicycle and replace it with a decal of 
the globe. Huffy bicycles are not American any more. They are Chinese. 
Why? Because American workers were making $11 an hour plus benefits. 
They were paid too much money.
  Radio Flyer, the little red wagon that all the children in this 
country played with, was an American company for 110 years. It is gone 
now. Little red wagons are made elsewhere. Why? Because the American 
workers cost too much.
  Levis? There is not one pair of Levis made in the United States. 
None. It is an all American company. Levis are gone.
  Fig Newton cookies. Want to buy some Mexican food? Fig Newton cookies 
are made in Monterey, Mexico. They left this country to be made in 
Mexico.
  Fruit of the Loom underwear, shorts, shirts--gone.
  I could go on and on at great length. But these are companies who 
took their jobs elsewhere. Why? Because you can find labor dirt cheap, 
you can instantly move technology and capital, and then you can produce 
that product--yes, bicycles, wagons, underwear, shirts, shoes, 
trousers, trinkets, you name it--you can produce it elsewhere. Then you 
can ship it to Toledo, Fargo, to Los Angeles, Boston, New York, and 
sell it to the American consumer.
  It is a brilliant strategy, if you are a big corporation that wants 
to maximize your profits. It is a devastating strategy, if you have 
worked all your life in a factory, proud of what you produce, and have 
just been told your job is gone.
  Thirty years ago, the largest American corporation was General 
Motors. People frequently worked for that corporation for a lifetime, 
generally were paid a pretty good wage, were paid health care and also 
retirement benefits. Now, the largest corporation is Wal-Mart. I don't 
have to tell you what the average wage is, what the turnover is. The 
fact is, it is dramatically different, with less stability, fewer 
benefits, lower wages.
  This country is in a race to the bottom, and what we ought to be 
doing with the strategy on international trade is lifting others up. 
Instead, we are pushing American workers down.
  The other day, I found out that Lama boots, Tony Lama boots--I talk 
about Levis being all American, when you spot someone with Tony Lama 
boots, you think that is all American. Tony Lama boots has now moved to 
China.
  The list goes on and on and on.
  So the question is, when will this country stand up for its own 
economic interests? Not build walls around America, but at least 
develop a straight strategy that tries to lift others up rather than 
push us down. There is a feeling among some that workers do not matter 
very much, workers are like wrenches, like screwdrivers and pliers. Use 
them, use them up, and you throw them away. And throwing them away is 
as easy as saying, sayonara, so long, we are off to China, off to Sri 
Lanka, off to Bangladesh.
  The thing is, none of this works. Henry Ford used to believe that he 
wanted his workers to earn a sufficient income so they could buy the 
product they produce. He wanted the workers at Ford Motor to have 
enough in wages to be able to buy Ford cars. Very simple. Simple 
economics.
  This is an unsustainable course. We cannot continue this course of 
trade deficit after trade deficit, $50, $60 billion a month, month 
after month after month.
  There is a lot of discussion about crisis around here. The President 
says Social Security is in crisis. It is not. Social Security, if 
nothing is done, will be wholly solvent until George W. Bush is 106. 
Clearly, it is not a crisis. Do we have to make some adjustments 
because people are living longer? Yes, and we will, and we should. But 
it is not a crisis. The trade deficit is a crisis. In a presidential 
campaign, some time ago, this issue was described as that giant sucking 
sound, that giant sucking sound that sucks American jobs out of this 
country.
  People say, well, more people are working. But what is happening in 
this country? What is happening is good American jobs are leaving. And, 
no, it is not just the manufacturing jobs. It is now all too often 
engineering jobs, programming jobs, system design jobs, and others as 
well. What are the American workers replacing the lost jobs with? Jobs 
that pay less. Jobs with less security. Jobs without health care. Jobs 
without retirement capability. That is what is happening in our 
country.
  Again, this town will snore through it. Last Friday, at 8:30 in the 
morning, we get an announcement that in the previous month we had a 
$57-billion trade deficit. What was the reaction to this town? Just 
roll over and continue

[[Page 12256]]

laying down and taking another long nap because nothing much like this 
matters. This is not a crisis. This is not urgent, they say.
  This country has an identity crisis. It has to decide what it wants 
for its future, and who will stand up for it. We fought for 100 years 
on these issues. We had people die on the streets of this country for 
the right to organize as workers. People literally died in the streets 
for the right to organize. Now a company can shut down their U.S. 
operation, ship the jobs to China, and if those workers, at 30 cents an 
hour, try to organize, they are fired like that. Just that quick.
  We had people fighting in the streets over child labor laws, over 
safe workplaces, the right to work in a safe plant, the right to expect 
that a plant is not going to dump its chemicals into the air and into 
the water. Nowadays, corporations can instantly decide to pole-vault 
over that. We will just fire the American workers and move the jobs to 
another country.
  The other day, I saw a report about the 470 workers laid off at a 
General Electric plant making refrigerators. They were told on April 
Fool's Day of this year, April 1, it would be the last day for 470 
workers. G.E. was going to discontinue the production of midline, side-
by-side refrigerator models that supposedly are not competitive or do 
not have the right product features, but a very similar new line of 
refrigerators will be started up in the G.E. Plant in Celaya, Mexico. 
And that plant will be funded with a loan from the Export Import Bank, 
which is to say U.S. taxpayers.
  This may not matter much to someone around here who wears a white 
shirt and a blue suit to work and who is never going to lose their job 
to cheap foreign labor. I don't know of one journalist or one 
politician in this country that has ever lost their job to cheap 
foreign labor. It is just the folks on the assembly line, folks that 
work for a living in the plant, often the folks that have to come back 
in the evening and at suppertime and tell their family, I lost my job 
today. It wasn't because I did a bad job. I have worked for that 
company for 15, or 20, or 25 years. I love that job. I love it, but I 
cannot compete with 30 cents an hour.
  This country has to try to figure out what is going on in how it 
deals with it. This country really needs to understand that this is a 
crisis and this requires action and an urgent response by this 
President and by this Congress.
  There is so much to say about trade. I am tempted to continue to talk 
about the 600,000 cars we get from Korea every year. We get the 
opportunity to send 3,000 cars back into the Korean marketplace. 
Unbelievable to me. Just unbelievable. There are 600,000 vehicles 
coming our way from Korea, and we do not get cars into Korea.
  I could talk about automobiles in China, talk about beef to Japan, I 
could talk about potato flakes to Korea. The length of the presentation 
could be nearly endless.
  But for now let me say last Friday's announcement of one more trade 
deficit sells just a bit more of this country in a way that Warren 
Buffet, a fellow I greatly admire, says will one day put us in the 
position of being sharecroppers because we are selling part of America 
with these dramatic trade deficits. And it is not just selling part of 
our country when you are buying more than you are selling. Not only are 
your jobs leaving--and in this case they are leaving for much lower 
wages--but in addition to that, you end up, unlike the budget deficit, 
which you can argue as an economist we owe to ourselves, you end up 
providing, in the hands of foreign governments, currency, stock, or 
real estate claims against our country. That affects foreign policies, 
virtually everything else we do.
  I will have more to say about this. But I did not want Friday's 
moment to pass, despite the rather sleepy attitude here in Washington, 
DC. In the hot, lazy months of summer, I did not want it to pass 
without some people understanding that some of us think what is 
happening is nuts. And some of us believe it is time--long past the 
time--for Congress and the President to have the backbone, the nerve, 
and the will to stand up for this country's economic interests and say: 
We represent this country. We represent the United States.
  The next time there is a trade agreement negotiated, they ought to 
wear a jersey that says ``USA.'' And maybe they could just look down 
briefly to see who they represent and say: I stand for this country and 
this country's long-term interests. Without that--and we have not had 
that for a long while--this country, in my judgment, is consigned to a 
future of lower wages and a lower standard of living.
  You will not, in my judgment, long remain a world economic power 
without addressing this issue directly. My hope is sooner, rather than 
later, my colleagues will join me.
  Mr. President, I yield the floor and suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. HAGEL. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. HAGEL. Mr. President, I ask unanimous consent that I be allowed 
to speak for 5 minutes as in morning business.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  (The remarks of Mr. Hagel are printed in today's Record under 
``Morning business.'')
  Mr. HAGEL. Mr. President, thank you. I yield the floor.
  I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. DURBIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.


                           tobacco settlement

  Mr. DURBIN. Mr. President, I rise to speak on an issue that appeared 
in the newspapers last week. Last week a client was sold out by his 
lawyer. It happens across America on a regular basis. It is 
unfortunate. It is unethical, unprofessional, and basically wrong, but 
it happens.
  The reason why this caught my attention, and the attention of many, 
was that the lawyer in this case was the Attorney General of the United 
States; the client, the American people. At issue was a lawsuit brought 
against the tobacco industry by the Department of Justice. It was a 
lawsuit started under President Clinton and carried on under President 
Bush. The case was made that the tobacco industry in America over 50 
years deceived and deliberately misinformed the people about the 
dangers of the product they were selling.
  Last week our lawyers, the Attorney General of the United States and 
the Department of Justice, the people who are supposed to be working 
endlessly every day to protect the best interests of America, basically 
walked away from their own case. The Department of Justice chose to 
dismiss credible testimony from its own witnesses, people it had 
brought into this lawsuit.
  A few months ago, Michael Fiore, who spent his entire career in 
public health and the study of tobacco use and cessation, recommended a 
comprehensive smoking cessation program across America, funded at $5.2 
billion a year for at least 25 years. Mr. Fiore's testimony was that we 
would take the money and profits the tobacco companies had made by 
deceiving the American people about the danger of tobacco and 
cigarettes and use it so that Americans currently smoking, addicted, or 
who might be tempted to smoke would have a chance to be spared from the 
disease and death which follows from that addiction.
  Last week, the Justice Department's lawyer, a gentleman working for 
Attorney General Gonzales by the name of Stephen Brody, shocked the 
court and the American people by announcing that the Justice Department 
would only seek a fraction of the money which his own witness had said 
should

[[Page 12257]]

be recovered by the people. This Assistant Attorney General, Stephen 
Brody, walked into a courtroom and said that instead of the $130 
billion the tobacco companies would owe to the people to help them 
avoid tobacco addictions, he would only seek $10 billion.
  Before I was elected to Congress, I used to be a trial lawyer. I used 
to go through this routine. But it certainly didn't involve billions or 
even millions of dollars. They were much smaller cases. If I was being 
sued and someone had said, Listen, we need $100,000 and that is it, 
come up with $100,000 or we are going to trial, I would have to make an 
assessment. Is this case one that I am likely to win or lose, if I am 
being sued, $110,000, $100,000 on the line? But if a few days before 
the trial they walked in and said, No, we are wrong. It isn't $100,000, 
it is only $10,000, I would think to myself, They don't have much of a 
lawsuit, on one day to ask for $100,000 and the next to ask for 
$10,000.
  In this case, our Attorney General, through Mr. Brody, was asking the 
court for $130 billion. And then last week, to the surprise of 
everybody, he walked in and said, No, only $10 billion.
  Does this administration really believe the people of the United 
States won't notice the Government is willing to leave $120 billion on 
the table and walk away from it?
  Well, they did notice. Newspapers across the country have run 
editorials and articles criticizing the Department of Justice for what 
appears to be bad representation of the American people, the fact that 
the American people were cheated by their lawyer, newspapers are from 
all over the country: Houston, TX; Lowell, MS; Lakeland, OH; 
Harrisburg, PA; Tacoma, WA; Albuquerque; Denver; Racine, WI; Los 
Angeles; New York; and the Washington Post. The country has noticed 
that a lawyer sold out his client because it is a big sellout.
  The Albany Times Union wrote:

       So, why the sudden about face? Yes, it's routine for 
     attorneys to suddenly change a client's demand if it appears 
     that the merits of the case are weak, or that a judge or jury 
     appears likely to rule against them. But most legal experts 
     had widely believed the government would win this case 
     because it was based on the same evidence used successfully 
     by state attorneys general to win $246 billion. That evidence 
     . . . showed they knew cigarettes were addictive even as they 
     conducted campaigns to get young people to smoke.

  The Denver Post editorial was headlined, ``What Are the Feds 
Smoking?'' Good question.
  The Lowell Sun says:

       The dramatic change [in government strategy] was both 
     shocking and outrageous. Allowing political pressure to 
     interfere in any trial--particularly one of such importance--
     is beyond unacceptable, it's unconscionable.

  Finally, the Houston Chronicle, from the President's own home State 
of Texas, quotes a civil attorney who says he would be ``thrilled'' if 
he were representing a tobacco company in this case. The lawyer said:

       I've never seen anything like this happen unless there's 
     political pressure.

  It is obvious something happened in this case, and it wasn't about 
law. It was clearly about politics.
  The Chronicle concludes:

       If this illustrates the compassion [Attorney General] 
     Alberto Gonzales promised to bring to the job, then he is 
     feeling sorry for the wrong people.

  I agree. This administration has never demonstrated much enthusiasm 
for this tobacco case, which it inherited from the Clinton 
administration.
  To its credit, though, the Department has avoided public discussion 
of settlement, prosecuted a strong case, brought in the witnesses, 
until last week. I have joined several of my colleagues in the House 
and Senate asking the Attorney General to initiate an investigation 
surrounding this decision last week to basically sell out the American 
people when it comes to this tobacco lawsuit. I call on the Attorney 
General, through his inspector general or directly, to answer the 
question: Why did you walk away from the American people in this 
tobacco lawsuit?
  This Government has signaled to the tobacco industry that the 
settlement will be cheap. While the American people deserve more, the 
people's lawyers appear to be winking at the other side. It is hard to 
imagine a settlement after last week that would be a good deal for the 
American people. I encourage the Department to hold off any settlement 
discussions until we replace the DOJ officials who sold us out last 
week. Those who put pressure on Stephen Brody have to go. If The 
Department of Justice can walk into that courtroom and sell out the 
American people, the American people need a new lawyer.
  The purpose of this lawsuit was to hold accountable the promoters of 
tobacco use for what has become the leading cause of preventable death 
in America. An early settlement in this case will miss that point 
entirely. The Department of Justice set out a detailed case 
establishing the tobacco industry's role in misleading America. This is 
a rare opportunity to hold tobacco companies accountable for the 
preventable deaths tobacco causes and to reach those who are addicted 
to tobacco today.
  The Department of Justice chose to walk away, leaving $120 billion 
and 43 million American lives behind.
  Mr. President, I yield the floor, and I suggest the absence of a 
quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. SPECTER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. SPECTER. Mr. President, I rise to speak on behalf of Mr. Thomas 
B. Griffith for confirmation to the U.S. Court of Appeals for the 
District of Columbia. I could not be here in my capacity as chairman of 
the Judiciary Committee to open the debate this afternoon because we 
had a field hearing on juvenile crime in Philadelphia. But I am here 
now because I want to express my views as to why I believe Mr. Griffith 
is preeminently well qualified to take on the important job of circuit 
judge in the District of Columbia.
  Mr. Griffith has an extraordinary academic background. He graduated 
from Brigham Young University with his bachelor's degree in 1978, with 
a summa cum laude rating and high honors. He also was valedictorian of 
his college. He earned his law degree from the University of Virginia. 
During law school, Mr. Griffith was a member of the Editorial and 
Articles Review Board of the Virginia Law Review, which is a very high 
position at a prestigious law school.
  Following law school, Mr. Griffith worked at the Charleston, NC, law 
firm of Robinson, Bradshaw & Hinson. He then continued his very 
distinguished professional career as a partner at Wiley, Rein & 
Fielding. In 1995, by unanimous resolution, the Senate, sponsored by 
the Republican and Democratic leaders, appointed him to the nonpartisan 
position of Senate legal counsel.
  During his tenure as Senate legal counsel, Mr. Griffith tackled a 
very tough issue relating to the impeachment of President Clinton. He 
did an outstanding job. He also argued, on behalf of the Senate, two 
very important matters involving committee investigations and the line 
item veto litigation, which resulted in two landmark decisions by the 
Supreme Court of the United States, At the conclusion of his tenure, 
Mr. Griffith was unanimously endorsed by a bipartisan resolution, 
cosponsored by Senator Daschle, Senator Lott, Senator Dodd, and Senator 
McConnell, expressing the Senate's gratitude for his services as Senate 
legal counsel.
  There were especially complimentary remarks made by Senator Dodd, who 
said, ``Mark Twain once suggested, `Always do right. This will gratify 
some people and astonish the rest.' During his tenure as legal counsel, 
Tom exemplified this philosophy, impressing all who knew him with his 
knowledge of the law and never succumbing to the temptation to bend the 
law to partisan ends. All of us who serve here in the Senate know the 
importance of the rule of law; but let us never forget that it is 
individuals like Mr. Thomas Griffith whose calling it is to put that 
ideal into practice.''

[[Page 12258]]

  Senator Thurmond also expressed high praise for Mr. Griffith, as did 
Senator Lott.
  Beyond his work in the profession, Mr. Griffith has found time to 
give back to the community. He serves as an advisory board member to 
the ABA Central European and Eurasian Law Initiative. Furthermore, 
while in private practice, Mr. Griffith took on a significant pro bono 
representation of a death row inmate, which led to the commutation of 
the inmate's sentence by the Governor of Virginia.
  Mr. President, I ask unanimous consent to have printed in the 
Congressional Record, statements of support on behalf of Mr. Griffith.
  There being no objection, the material was to be printed in the 
Record, as follows:

                                Support

       Seth Waxman said of Mr. Griffith's nomination, ``I have 
     known Tom since he was Senate Legal Counsel and I was 
     Solicitor General, and I have the highest regard for his 
     integrity. For my own part, I would stake most everything on 
     his word alone. Litigants would be in good hands with a 
     person of Tom Griffith's character as their judge.''
       Glen Ivey, former counsel to Former Senate Democratic 
     Leader Tom Daschle, wrote to this Committee, stating, ``I 
     believe Mr. Griffith is an exceptional nominee and would make 
     an excellent judge. Although Mr. Griffith and have different 
     party affiliations and do not agree on all political matters, 
     I learned during the Senate's Whitewater and Campaign Finance 
     Reform investigations that Mr. Griffith took seriously his 
     oath of office. Even when we were handling sensitive and 
     politically charged issues, he acted in a non-partisan and 
     objective manner. I believe Mr. Griffith has the intellect 
     and the temperament to make an outstanding jurist.''
       According to David Kendall, personal counsel to President 
     and Senator Clinton, ``For years Tom has been a leader in the 
     bar and has shown dedication to its principles. The federal 
     bench needs judges like Tom, an excellent lawyer who is 
     supported across the political spectrum. . . . [W]e support 
     Tom and believe he has the intellect and judgment to be an 
     excellent judge.''
       Harvard Law Professor William Stuntz has known Mr. Griffith 
     for over twenty years. He wrote, ``Few people I know deserve 
     to be called wise; very few deserve to be called both wise 
     and good. Tom is a wise and good man. I believe he will be 
     one of this nation's finest judges.''
       Abner Mikva, a former White House Counsel for President 
     Clinton and a former Chief Judge of the U.S. Court of Appeals 
     for the D.C. Circuit, wrote to Senator Leahy, ``I write as an 
     enthusiastic supporter. . . . I have known Tom Griffith in 
     the public sector and in the private sector, and I have never 
     heard a whisper against his integrity or responsibility. Tom 
     Griffith will be a very good judge. I have always found Tom 
     to be diligent, thoughtful, and of the greatest integrity . . 
     . Tom has a good temperament for the bench, is moderate in 
     his views and worthy of confirmation.''
       Finally, Senator Dodd of Connecticut noted that Mr. 
     Griffith handled his difficult responsibilities as Senate 
     Legal Counsel with great confidence and skill . . . 
     impressing all who knew him with his knowledge of the law and 
     never succumbing to the temptation to bend the law to 
     partisan ends.''

  Mr. SPECTER. There has been a challenge against Mr. Griffith, with 
respect to his Utah bar membership. Because he serves as general 
counsel to Brigham Young University, there were some questions raised 
as to whether he should have been a member of the Utah bar. I think 
that issue has been clarified, although some are still contesting it. I 
ask unanimous consent to have printed in the Record a full explanation 
of the Utah bar membership issue.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                   Tom Griffith: Utah Bar Membership


                                 Facts

       As soon a Mr. Griffith accepted the position of Assistant 
     to the President and General Counsel of Brigham Young 
     University (``BYU''), he sought to determine what Utah's 
     requirements were for in-house counsel by consulting with 
     Utah attorneys.
       Mr. Griffith always has complied with the advice he 
     received--when his responsibilities require that he provide 
     legal advice to the University, he does so only in close 
     association with active members of the Utah Bar.
       Mr. Griffith was told that, as in-house counsel, he need 
     not become a member of the Utah Bar provided that when he 
     gives legal advice, he does so in close association with 
     active members of the Utah Bar.
       Mr. Griffith has always provided legal advice in 
     conjunction with one of four attorneys in his office who are 
     licensed with the Utah Bar, or an outside counsel who is 
     licensed with the Utah Bar. As BYU's General Counsel, he has 
     made no court appearances, nor has he signed any pleadings, 
     motions, or briefs.
       Mr. Griffith communicated with Utah State Bar officials who 
     were aware that he had not sat for the Utah Bar exam. These 
     officials advised Mr. Griffith to associate himself closely 
     with a Utah Bar member whenever giving legal advice pending 
     his admission to the Utah Bar--which he did. Not once did 
     Utah Bar officials warn Mr. Griffith that his arrangements 
     were contrary to accepted practice--because they weren't. The 
     Utah Bar has affirmed that such arrangements do not 
     constitute practicing law without a license.
       Numerous former and current Utah Bar officials have written 
     letters affirming that the precautions taken by Mr. Griffith 
     were appropriate and in accordance with the Utah Bar rules.
       Five former Presidents of the Utah Bar: ``While there is no 
     formal `general counsel' exception to the requirement that 
     Utah lawyers must be members of the Utah bar, it has been our 
     experience that a general counsel working in the state of 
     Utah need not be a member of the Utah Bar provided that when 
     giving legal advice to his or her employer that he or she 
     does so in conjunction with an associated attorney who is an 
     active member of the Utah Bar and that said general counsel 
     makes no Utah court appearances and signs no Utah pleadings, 
     motions, or briefs.''--John Adams, Charles Brown, Scott 
     Daniels, Randy Dryer, Dennis Haslam, Letter to Chairman 
     Hatch, June 28, 2004.
       John Baldwin, Executive Director of the Utah Bar: ``To 
     those general counsel who cannot avoid circumstances which 
     approach or may cross that line, we have consistently advised 
     that under such circumstances they should directly associate 
     with lawyers who are licensed in the state and on active 
     status. Our policy has also consistently been that of those 
     who follow that advice are not engaged in the unauthorized 
     practice of law.''--Letter to Chairman Hatch, July 2, 2004.
       Ethics experts have explained that Mr. Griffith has at all 
     times been in compliance with rules of ethical professional 
     conduct.
       ``[T]he requirement of membership in a particular bar is 
     not in itself a rule of ethical professional conduct, but a 
     lawyers' `guild rule' (like minimum fee schedules and 
     restrictions on advertising) designed to restrict 
     competition.--Monroe Freedman, Law Professor at Hofstra 
     University and Thomas Morgan, Law Professor at GW Law School, 
     Letter to the Editor, New York Times, July 4, 2004.
       ``At best, the requirement of a license is intended to 
     assure that one who holds himself out to the public as a 
     lawyer is indeed competent to serve as a lawyer. In that 
     regard, there is no question about Mr. Griffith's competence, 
     which is the only ethical issue that is material.'' Id.
       The ABA and the American Law Institute Restatement both 
     support a policy of not requiring in-house counsel to be 
     license in state, as long as the attorney is licensed in at 
     least one state.
       ALI Restatement: ``States have permitted practice within 
     the jurisdiction by inside legal counsel for a corporation or 
     similar organization, even if the lawyer is not locally 
     admitted and even if the lawyer's work consists entirely of 
     in-state activities, when all of the lawyer's work is for the 
     employer-client and does not involve appearances in court. 
     Leniency is appropriate because the only concern is with the 
     client-employer, who is presumably in a good position to 
     assess the quality and fitness of the lawyer's work.''--ALI 
     Restatement, Section 3, Comment f.
       ABA Model Rules: ``(d) A lawyer admitted in another United 
     States jurisdiction and not disbarred or suspended from 
     practice in any jurisdiction, may provide legal services in 
     this jurisdiction that (1) are provided to the lawyer's 
     employer or its organizational affiliates and are not 
     services for which the forum requires pro hac vice 
     admission.''--Model Rule 5.5(d)(1).
       Mr. Griffith's sole employer, BYU, was aware that Mr. 
     Griffith was not a member of the Utah Bar and did not require 
     him to be a member. BYU is the largest private university in 
     the U.S., with campuses and programs throughout the world--
     much like a multinational corporation.
       Former Dean of BYU Law and Chair of BYU General Counsel 
     Search Committee, Professor H. Reese Hansen: ``The fact that 
     Mr. Griffith was not a member of the Utah Bar was, of course, 
     well known to all relevant decision makers when he was 
     recommended for and hired as Assistant to the President and 
     General Counsel to BYU.''--Letter to Chairman Hatch, June 29, 
     2004.
       Dean Hansen: ``A lawyer who is employed as General Counsel 
     to a [multinational corporation] and who provides legal and 
     other services only to his or her employer is obviously not 
     licensed to practice in every jurisdiction where the entity 
     has suppliers, customers, or shareholders or where its 
     advertisements may reach. I view BYU's Assistant to the 
     President and General Counsel in exactly the same situation 
     in regard to his bard membership. . . . I believe that Mr.

[[Page 12259]]

     Griffith has conducted his professional service to his sole 
     client, Brigham Young University, in a completely appropriate 
     manner in all regards and consistent with common practices of 
     general counsel to large U.S. entities who conduct multi-
     state and international activities.'' Id.

  Mr. SPECTER. Similarly, there had been an issue regarding Mr. 
Griffith's lapsed membership in the District of Columbia bar, which 
occurred because of an administrative oversight.
  Excuse me; nothing is as troublesome as a pesky summer cold. Without 
this cold, my speech would be considerably longer, Mr. President, so 
there are some advantages, at least, for anyone who may be watching on 
C-SPAN--if anyone watches C-SPAN during these late afternoon 
proceedings of the Senate. I ask unanimous consent that a full 
explanation of the DC Bar membership issue also be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                   Tom Griffith: D.C. Bar Membership


                                 Facts

       In 2001, Mr. Griffith discovered that his D.C. Bar 
     membership had been suspended for failing to pay his annual 
     dues. As soon as he became aware of the problem, he paid the 
     dues and was reinstated as a bar member in good standing.
       Mr. Griffith accepts full responsibility for the oversight, 
     and he brought the lapse in his membership to the attention 
     of the Senate Judiciary Committee in his questionnaire.
       Having worked as an attorney at a large D.C. law firm from 
     1991-1995, Mr. Griffith became accustomed to the firm's 
     practice of paying its attorney's bar dues.
       When Mr. Griffith became Senate Legal Counsel, he was late 
     in paying his 1997 D.C. Bar dues, and as a result, was 
     suspended from the D.C. Bar for approximately five weeks. As 
     soon as Mr. Griffith became aware of the problem in January 
     1998, he paid the dues and was reinstated as a member in good 
     standing.
       In 1998, while still serving as Senate Legal Counsel, Mr. 
     Griffith unintentionally failed to pay his 1998 D.C. Bar dues 
     and was suspended as a result. He was unaware of his 
     suspension at the time.
       When Mr. Griffith returned to his former law firm in March 
     1999, he wrongly assumed, based on his prior experience at 
     the firm, that the firm was paying dues on his behalf. He 
     continued to have no knowledge of suspension.
       Mr. Griffith paid his back dues as soon as he discovered 
     the problem in 2001. He was promptly reinstated as a member 
     in good standing of the D.C. Bar. Since then, he has paid his 
     D.C. Bar dues in a timely manner and remains a D.C. Bar 
     member in good standing.
       Mr. Griffith's situation is not at all unusual. D.C. Bar 
     counsel quotes that every year over 3,000 D.C. lawyers (and a 
     number of sitting judges) are ``administratively suspended'' 
     for late payment of dues.
       An inadvertent failure to pay bar dues does not reflect 
     poorly on Mr. Griffith's character or ability to serve as a 
     judge on the U.S. Circuit Court of Appeals.
       Abner Mikva, former Chief Judge, U.S. Court of Appeals for 
     the D.C. Circuit: ``I cannot believe the [the Washington 
     Post] or anyone else thinks that the inadvertent failure to 
     pay bar dues because no bill was sent is a mark of a lawyer's 
     character. I have known Tom Griffith in the public sector and 
     in the private sector, and I have never heard a whisper 
     against his integrity or responsibility.''--Letter to the 
     Editor, Washington Post, June 8, 2004.
       David Kendall, private attorney to former President 
     Clinton, and Lanny Breuer, former Associate Counsel to 
     President Clinton: ``Contrary to the Post's implication, Tom 
     is an outstanding attorney who takes his responsibilities as 
     a member of the bar seriously. . . . As soon as he realized 
     that bills were unpaid, he paid them. Tom took the common and 
     proper course of action under the circumstances. This 
     innocent oversight has no bearing on his ability to serve as 
     a judge.''--Letter to the Editor, Washington Post, June 11, 
     2004.
       Former ABA Presidents Bill Ide and Sandy D'Alemberte, along 
     with 11 other attorneys: ``By immediately paying his dues 
     when he became aware of the oversight, Tom took the proper 
     course of action. According to D.C. Bar counsel, such an 
     oversight is entirely common and of no major concern, 
     particularly where no reminder notice is sent out. In fact, 
     Tom was promptly reinstalled after he paid his accrued dues, 
     without any questions raised about possible sanctions.''--
     Letter to Chairman Hatch, June 14, 2004.
       Ethics Expert, Professor Monroe H. Freedman, Hofstra 
     University Law School: ``In the District of Columbia, Mr. 
     Griffith had in fact been a member of the bar in good 
     standing; the only problem was a temporary lapse in the 
     payment of dues, which he promptly remedied when he became 
     aware of it. He thereby once again became, and remains, a 
     member of the D.C. Bar in good standing. Neither the bar nor 
     anyone else has ever questioned Mr. Griffith's competence to 
     practice law.''--Letter to Chairman Hatch, June 29, 2004.
       Mr. Griffith was ``administratively suspended'' from the 
     D.C. Bar for failure to pay his bar dues. No disciplinary 
     action was ever taken against him.
       *Former ABA Presidents Bill Ide and Sandy D'Alemberte, 
     along with 11 other attorneys: ``The Post improperly equated 
     Tom's situation to `disciplinary suspension,' a rare sanction 
     imposed only when a lawyer knowingly refuses to pay bar dues. 
     It was nothing of the kind. When advised of the problem, Tom 
     promptly paid his dues in full.''--Letter to Chairman Hatch, 
     June 14, 2004.

  Mr. SPECTER. We had a second hearing for Mr. Griffith this year, 
after I became chairman, because his original hearing was not well 
attended. It was held at the end of the last session. At the hearing 
this year, I think we explored in considerable detail the issue of his 
DC bar membership.
  It is always a difficult matter when a lawyer is a member of one bar 
and seeks to become a member of another. I know I went through a 
similar issue when I took the New Jersey bar, 23 years after I attended 
law school. It is an experience, but I went through it. However, I 
think this by no means disqualifies Mr. Griffith, and I think the issue 
has been adequately explained on the record.
  Tom Griffith is well known in the Senate, perhaps better known than 
virtually any other judicial nominee who comes here, because he had 
been legal counsel to the Senate. I think many people who know Mr. 
Griffith on a personal, intimate basis know of his high ethical 
standards, his scholarship, and his legal ability. He is soft spoken. 
He is mature. He is knowledgeable. I think he will make a fine circuit 
judge.
  Mr. Griffith comes with an especially strong recommendation from the 
former chairman of the Judiciary Committee, Senator Hatch, who has 
known Mr. Griffith personally for many years, and speaks very highly of 
him.
  Regrettably, I cannot be here tomorrow to speak again, as is the 
practice for the chairman to speak immediately before leadership, 
because I will be traveling in Pennsylvania with President Bush. Tom 
Griffith is an outstanding candidate, and I urge my colleagues to vote 
to confirm him.
  Mr. President, in the absence of any Senator seeking recognition, in 
fact, in the absence of any other Senator on the floor, I suggest the 
absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. BENNETT. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. BENNETT. Mr. President, I understand the debate is on the 
qualifications of Thomas Griffith.
  The ACTING PRESIDENT pro tempore. The Senator is correct.
  Mr. BENNETT. I wish to make a few comments with respect to Mr. 
Griffith. I ask all Members of the Senate to think back on what for 
many of us will be the most dramatic experience we had as Members of 
this body. It was an unprecedented situation, certainly in this, the 
last century. You had to go all the way back to Abraham Lincoln's time 
to find anything similar to it, when we met in this body with the Chief 
Justice of the United States, William Rehnquist, sitting in the chair, 
and held an impeachment trial of the President of the United States.
  I doubt very much that will ever happen again. It was a very 
different kind of trial than the one that occurred with Andrew Johnson 
the first time this happened. That was purely political with Andrew 
Johnson, and everybody recognized that. I remember a Member of this 
body saying that we had actually had three impeachment situations in 
our history: The first, Andrew Johnson; the second that never got to 
the Senate, which was Richard Nixon; and the third, President Clinton. 
The Senator said Andrew Johnson, clearly not guilty, clearly a 
political vendetta; Richard Nixon, clearly guilty, clearly should have 
been removed--he stopped that by resigning;

[[Page 12260]]

and then he said the Clinton one was in between. It was a close case 
that could have gone one way or the other.
  Some of my friends on the Democratic side of the aisle said it is not 
a question of whether he did it. It is not a question of whether it was 
a high crime and a misdemeanor. The only question was whether it was a 
serious enough high crime and misdemeanor on the part of the President 
of the United States to justify removing him from office. I think that 
was a thoughtful summary of where things were.
  Why am I saying all of this with respect to Thomas Griffith? Because 
during the period that the Senate went through that very difficult and 
historic debate, the counsel to the Senate of the United States was 
Thomas Griffith. In that position, he served both sides. He was not 
counsel to the majority, he was not counsel to the minority, he was the 
Senate's counsel.
  I remember very well the conversations that took place here, both 
formally and informally.
  I remember the time when we were in a quorum call where the then 
minority leader, Tom Daschle, and the then majority leader, Trent Lott, 
met in the well of the Senate, other Senators pressed forward, and 
pretty soon we had about 30 Senators gathered around talking: What can 
we do, how can we resolve this, where can we go?
  The decision was made, as a result of that, the Senate would go into 
the old Senate Chamber in executive session, where there were no 
television cameras, there were no reporters, there was no staff, other 
than the absolutely essential one or two. We talked about how we could 
get through this difficult time.
  One of the speeches given in that chamber made this comment about the 
impeachment proceedings with respect to President Clinton. He said: 
This case is toxic. It has sullied the Presidency. It has stained the 
House of Representatives. It is about to do the same thing to us.
  Unfortunately, the Senator made that prediction, with which I agree, 
but had no solution. He was just short of explaining how difficult that 
was going to be out of a sense almost of resignation that this 
particular case was going to end up besmirching the Senate as badly as 
it had stained the Presidency and the House of Representatives.
  When it was all over, some 30 days later, that particular prediction 
had not come true. The Senate had not been stained. Indeed, it was one 
of the Senate's finest hours. We had come together in a civil way, with 
a deliberate understanding of our responsibility. We had acted 
responsibly. Every Member of the Senate had voted his or her own 
conscience, and we had disposed of the case in a manner that reflected 
well upon the Senate.
  In that situation, the legal mind that was counselling both Senator 
Daschle and Senator Lott was Tom Griffith, the Senate's counsel who 
would sit down with the Republicans and describe to Senators the 
precedent, outline what the consequences would be if we did this, that, 
or the other. He would then sit down with the Democrats and do exactly 
the same thing from a standpoint of evenhandedness, fairness, great 
respect for the law, and through documentation and examination, 
thorough scholarship and research.
  The Senate counsel who did all of those things and helped the Senate 
through, arguably, one of its most difficult times in the last 100 
years, is the man now before the Senate to be a circuit judge.
  I am very surprised people have such short memories. People who were 
complaining about Tom Griffith not being qualified for the circuit 
court bench, where were they when he was qualified and performing 
magnificently on their behalf as the counsel of this body? Have they no 
memory of the professionalism, the deep research, the evenhanded 
fairness that Tom Griffith showed on that occasion? Don't they remember 
how he served, regardless of party, the law, the precedent, and the 
institution?
  We can talk about opinions. We can talk about papers written. We can 
talk about positions taken. All of these are important in deciding what 
we should do with respect to a circuit court judge. But I cannot think 
of any place where we could duplicate the crucible in which a potential 
judge's capabilities are tried that would approach the crucible through 
which Tom Griffith has come.
  I intend to support him. I urge my colleagues to support him. He will 
make an outstanding circuit court judge.
  I, ultimately, come to a very personal kind of test. If I were on 
trial for some very complicated situation, some very Byzantine kind of 
charge that required a great legal mind to cut through to the real 
issues, would I want that case to be tried before Tom Griffith sitting 
on the bench? My answer, as I have thought about it, is clearly, yes. 
If I were on trial, and I needed a judge who had the capacity to cut 
through all the extraneous matter and get to the heart and render an 
accurate decision, I would want Tom Griffith to be the judge in that 
kind of case.
  I hope I am never on trial in a case that goes before the circuit 
court. But there are those who will be. There are those who will have 
that challenge and have that experience. The best thing I can do for 
them is to vote to put Tom Griffith on the court so he will be there to 
render that kind of service and that kind of expertise on their behalf.
  I hope he is confirmed. I will vote for his confirmation. I urge all 
of my colleagues to do the same.
  Mr. LOTT. Mr. President, I would like to state my support for the 
nomination of Thomas B. Griffith to the U.S. Court of Appeals for the 
D.C. Circuit. I believe that Mr. Griffith will serve the Federal 
judiciary with honor and distinction.
  Mr. Griffith served as Senate Legal Counsel while I was majority 
leader, and I found him to be intelligent, honorable, and supremely 
qualified for this position on the Federal bench. As Senate Legal 
Counsel, he represented the Senate, its committees, Members, officers, 
and employees in litigation relating to their constitutional powers and 
privileges; advised committees about their investigatory powers and 
procedures; and represented the institutional interests of the Senate 
with honor.
  He was appointed to that nonpartisan position by a unanimous 
resolution sponsored by the leaders on both sides of the aisle. In 
addition to his service to this body, Mr. Griffith has obtained 
extensive legal experience in private practice in civil, criminal and 
regulatory matters.
  Mr. Griffith currently serves as assistant to the president and 
general counsel of Brigham Young University, a position he has held 
since August of 2000. As general counsel for BYU he is responsible for 
advising the university on all legal matters, including the management 
of all litigation involving the university.
  Evidence of qualification can also be found in Mr. Griffith's 
outstanding academic record. He graduated summa cum laude from BYU, 
receiving high honors with distinction from its Honors Program. He 
later received his Juris Doctor from the University of Virginia School 
of Law and served on the editorial and articles review board of the 
Virginia Law Review.
  Mr. Griffith has the support of a broad, bipartisan group of 
attorneys and law professors, including Abner Mikva, former Chief Judge 
of the Court of Appeals for the D.C. Circuit.
  This nominee has also served on the American Bar Association Central 
European and Eurasian Law Initiative's Advisory Board. With the CEELI, 
he participated in the training of judges and lawyers in Croatia, 
Serbia, Russia, the Czech Republic and several other countries and has 
actively worked to establish a regional judicial training institute in 
Prague. His experiences in these unique endeavors should be of 
particular value during his tenure on the bench.
  Additionally, between 1991 and 1995, Mr. Griffith dedicated hundreds 
of hours in the pro bono representation. He has also represented 
disadvantaged students in the public school system in North Carolina 
during due process hearings that accompanied disciplinary actions.
  The American Bar Association has stated that Mr. Griffith is 
qualified for

[[Page 12261]]

this position in the Federal judiciary, and I concur.
  I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. VOINOVICH. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  (The remarks of Mr. Voinovich are printed in today's Record under 
``Morning Business.'')
  I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. FRIST. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. FRIST. Mr. President, I ask unanimous consent to speak as in 
morning business for what time is required.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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