[Congressional Record (Bound Edition), Volume 151 (2005), Part 9]
[Senate]
[Pages 12327-12338]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

   NOMINATION OF THOMAS B. GRIFFITH TO BE UNITED STATES CIRCUIT JUDGE

  The PRESIDENT pro tempore. Under the previous order, the Senate will 
proceed to executive session to resume consideration of Calendar No. 
66, which the clerk will report.
  The legislative clerk read the nomination of Thomas B. Griffith, of 
Utah, to be United States Circuit Judge for the District of Columbia 
Circuit.
  Mr. FRIST. Mr. President, in a few moments, we will be voting on Tom 
Griffith's nomination to the D.C. Circuit Court. Tom Griffith is a man 
of deep integrity, a man of skill, a man of experience who has won the 
respect and admiration of colleagues all across the political spectrum. 
I am confident that once approved, Mr. Griffith will serve the D.C. 
Circuit Court with honor and distinction.
  Mr. Griffith graduated summa cum laude from Brigham Young University. 
He earned his law degree from the University of Virginia Law School 
where he served on the Law Review.
  Over the course of his legal career, Mr. Griffith has developed a 
broad range of experience from civil and criminal law to regulatory and 
international issues. Mr. Griffith currently serves as assistant to the 
president and general counsel of Brigham Young University.
  As Senate legal counsel during the impeachment trial of President 
Clinton, Mr. Griffith proved his ability to fairly and impartially 
interpret the law. David Kendall and Lanny Breuer, special counsel to 
President Clinton, wrote to the Washington Post:

       Tom has been a leader in the bar and has shown dedication 
     to its principles. The Federal bench needs judges like Tom.

  Glen Ivey, former counsel to former Senate minority leader Tom 
Daschle, testified that during the Senate's Whitewater and campaign 
finance reform investigations, Mr. Griffith was scrupulous. Mr. Ivey 
says:

       Even when we were handling sensitive and politically 
     charged issues, he acted in a nonpartisan and objective 
     manner. I believe Mr. Griffith has the intellect and 
     temperament to make an outstanding jurist.

  Tom Griffith is a dedicated public servant of tremendous ability. Two 
former presidents of the American Bar Association call Mr. Griffith 
``extremely well qualified for service on the D.C. Circuit.'' They 
write:

       The Federal bench needs people like him, one of the best 
     lawyers the bar has to offer.

  Senator Hatch has said that in all of his years in the Senate, he has 
never seen such a broad outpouring of support for a nominee from so 
many distinguished individuals on both sides of the aisle.
  Senator Dodd says:

       Tom handled his difficult responsibilities as Senate legal 
     counsel with great confidence and skill, impressing all who 
     knew him with his knowledge of the law and never succumbing 
     to the temptation to bend the law to partisan ends.

  In that spirit, I urge my colleagues to vote in a few moments to 
confirm Tom Griffith to the D.C. Circuit Court.
  I am pleased by the bipartisan progress we are making in the judge 
confirmation process. In the last 3 weeks alone, we confirmed Priscilla 
Owen to the Fifth Circuit Court of Appeals, Janice Rogers Brown to the 
D.C. Circuit Court of Appeals, William Pryor to the Eleventh Circuit 
Court of Appeals, David McKeague to the Sixth Circuit Court of Appeals, 
and Richard Griffin to the Sixth Circuit Court of Appeals. I now look 
forward to Tom Griffith being added to this outstanding list of 
confirmations.
  Let us continue on this path of progress and cooperation. I believe 
it is our constitutional duty and responsibility to vote. We are doing 
so. Our constituents expect us to do just that--vote. Every nominee 
deserves the respect of a vote, fair, civil, up or down. That is what 
we will be doing today.
  Mr. President, I yield the floor.
  The PRESIDENT pro tempore. The Senator from Vermont.
  Mr. LEAHY. Mr. President, I am glad to hear the distinguished leader 
say nominees deserve an up-or-down vote. Of course, he and other 
Republicans assured that 61 of the judicial nominees

[[Page 12328]]

of President Clinton were not given a vote. They were subjected to 
pocket filibusters--61. In fact, this nomination is a measure of the 
double standards used by Republicans in connection with judicial 
vacancies. During President Clinton's Presidency, Senate Republicans 
said the 11th and 12th judgeships to the D.C. Circuit were not to be 
filled, that we did not need those seats. They had argued since 1995 
that the caseload of the D.C. Circuit did not justify a full complement 
of the court. Indeed, at a hearing in 1995, Republicans called Chief 
Judge Laurence H. Silberman of the circuit to testify against 
proceeding to fill vacancies on the D.C. Circuit. Republicans have 
argued for years this circuit's caseload per judge is one of the 
lightest in the country. In a May 9, 2000, letter, Judge Silberman 
argued that the D.C. Circuit's caseloads had continued to decline from 
1995 to 2000, and he opposed confirmation of additional Clinton 
nominees. In fact, the D.C. Circuit caseload has continued to decline 
and in 2004 was lighter than it was in 1999 when Senate Republicans 
pocket filibustered two highly qualified and moderate nominees by 
President Clinton to vacancies on that circuit.
  Now with the confirmation of Janice Rogers Brown to the court last 
week, there are 10 confirmed, active judges on the D.C. Circuit, which 
is what Republicans have always maintained is the most that circuit 
should have. Now, of course, we find we have another one.
  With all the self-righteous talk from the other side of the aisle 
about their new-found ``principle'' that ever judicial nominee is 
entitled to an up-or-down vote, the facts are that the nominations of 
Allen Snyder and Elena Kagan to the D.C. Circuit were pocket 
filibustered by those same Senate Republicans in 1999 and 2000. Ms. 
Kagan is now Dean of the Harvard Law School. Qualified? Undoubtably. 
One of the most qualified people to be nominated to that court in the 
31 years I have been in the Senate. Was she given consideration in a 
Republican-led Senate? Not on your life. She was filibustered by 
Republicans. Likewise, the nomination of Allen Snyder, former clerk to 
Chief Justice Rehnquist and a highly respected partner in a prominent 
D.C. law firm, was pocket filibustered by Senate Republicans. When one 
of Mr. Synder's partners, John Roberts, was nominated to the same court 
by President Bush, he was, of course, unanimously supported by Senate 
Republicans. Senate Republicans played a cruel joke on Mr. Snyder when 
they allowed him a hearing but then went on to refuse to list him for a 
vote by the Judiciary Committee or the Senate.
  I recall that in September 2000, Senator Sessions explained that 
Clinton nominees Allen Snyder and Elena Kagan were blocked: ``Because 
the circuit had a caseload about one-fourth the average caseload per 
judge. And the chief circuit judge said 10 judges was enough, instead 
of 12. And I actually thought that was too many. I thought 10 was too 
many.'' So this Republican Senator joined in the pocket filibuster of 
these two nominees.
  Well, the D.C. Circuit's caseload per judge is lower now than it was 
during the Clinton administration, but suddenly with a Republican 
President, Republican Senators say we need to fill those seats. It is a 
bit hypocritical. Let us see whether the votes of Republican Senators 
this time will be based on the same rationale they gave in inflicting 
pocket filibusters on Clinton nominees.
  Last week we witnessed a Republican Senator--who had voted against 
the confirmation of a Clinton judicial recess appointment and had 
explained his vote as representing his opposition to recess 
appointments reverse himself to vote for a Bush judicial recess 
appointment.
  Last week, we witnessed dozens of Republican Senators--who voted 
against confirmation of Ronnie White of Missouri in 1999 and had 
explained their vote as compelled by the opposition of his home-state 
Senators--reverse themselves and vote in favor of Justice Janice Rogers 
Brown and ignore the strong, consistent and well- founded opposition of 
her two home-state Senators.
  Ronnie White, now the first African American to be chief justice of 
the Supreme Court of Missouri, was turned down by a double standard 
used by Republicans. I wonder whether the many Republicans Senators who 
delayed and opposed the confirmation of Merrick Garland in 1996 and 
1997 and pocket filibustered the nominations of Allen Snyder and Elena 
Kagan in 1999 and 2000 will vote against a nominee to the D.C. Circuit 
because the caseload of the circuit does not justify more judges. We 
will see if Republican Senators again abandon their earlier rationale.
  It is sometimes embarrassing, I think, to some of my friends on the 
other side to be reminded of all the rationales they used in pocket 
filibustering President Clinton's nominees, when now all of a sudden 
those same rationales are out the window when a Republican nominates a 
judge.
  In addition, as I explained yesterday, my opposition to this 
particular nominee, Mr. Griffith, is because he did not follow the law. 
His decision to practice law without a license for a good part of his 
career should be disqualifying. He has not honored the rule of law by 
first practiced law illegally in the District of Columbia for several 
years and then in Utah for several years without even bothering to 
fulfill his obligation to become a member of the Utah bar. In this 
regard he appears to think he is above the law. This is not the kind of 
nominee who should be entrusted with a lifetime appointment to a 
Federal court and, least of all, to such an important court as the D.C. 
Circuit, which is entrusted with protecting the rights of all 
Americans. He may be a fine gentleman, but what a standard. We turn 
down a partner in a prestigious law firm because he was nominated by a 
Democrat, and we turn down a woman highly qualified who becomes the 
dean of the Harvard Law School, but she committed a sin of having been 
nominated by a Democratic President. When a Republican nominates 
somebody for the same seat and he practiced law illegally for 7 years, 
well, all is forgiven. This is the wrong nomination for this court, and 
I will vote against it.
  I think it is another in a series of inappropriate nominations the 
President has made to the same court. Of course, the takeover of this 
court is now complete. It becomes an arm of the Republican Party. Mr. 
Griffith is the third nominee from President Bush to be considered by 
the Senate. If he is confirmed with those 11 judges, a majority of 7 
judges will be appointed by Republican Presidents, but interestingly 
enough, they have turned this court into an arm of the Republican Party 
by using some of the worst double standards we have seen. Instead of 
having a balanced court where we have nominees of both parties, the 
Republicans in the Senate filibustered, pocket filibustered judge after 
judge nominated by a Democratic President.
  The D.C. Circuit is an especially important court in our Nation's 
judicial system for its broad caseload covering issues as varied as 
reviews of federal regulation on the environment, workplace safety, 
telecommunications, consumer protection, and other critical statutory 
and constitutional rights. The White House has rejected all Democratic 
efforts to work together on consensus nominees for this court and 
refused to engage in consultation. I wish the President would work to 
unite the country instead of dividing it. But he has divided the Senate 
and the American people with several of his judicial nominees. It is 
unfortunate for the judiciary, the Senate, and the Nation. The 
President's unilateral approach is totally unnecessary and unlike his 
predecessors'.
  I have been here with six Presidents. Five before this Senate always 
consulted with both parties on judges they sought to unite rather than 
divide.
  This is the first President who has not.
  To reiterate, I oppose the nomination of Thomas Griffith to the U.S. 
Court of Appeals for the D.C. Circuit. Mr. Griffith's decision to 
practice law without a license for a good part of his career should be 
disqualifying. Mr. Griffith has foregone at least 10 opportunities to 
take the bar in Utah, and has continued to refuse during the pendency 
of his nomination. In this regard he appears to think he is above the 
law.

[[Page 12329]]

That is not the kind of person who should be entrusted with a lifetime 
appointment to a Federal court and, least of all, to such an important 
court as the D.C. Circuit, which is entrusted with protecting the 
rights of all Americans. This is the wrong nomination for this court 
and I will vote against it.
  Given the fact that the Supreme Court routinely reviews fewer than 
100 cases per year, the circuit courts, like the D.C. Circuit, end up 
as the courts of last resort for nearly 30,000 cases each year. These 
cases affect the interpretation of the Constitution as well as statutes 
intended by Congress to protect the rights of all Americans, such as 
the right to equal protection of the laws and the right to privacy. The 
D.C. Circuit in particular is an especially important court in our 
Nation's judicial system because Congress has vested it with exclusive 
or special jurisdiction over cases involving many environmental, civil 
rights, consumer protection, and workplace statutes. For example, the 
D.C. Circuit has exclusive or concurrent jurisdiction in cases 
involving the National Labor Relations Board, the Occupational Safety 
and Health Administration, the Federal Energy Regulatory Commission, 
the Federal Election Commission, and the Federal Communications 
Commission. The D.C. Circuit is entrusted with interpreting the 
Americans with Disability Act, the Endangered Species Act, and the 
Environmental Protection Agency, and has primary responsibility for 
ruling on the Resource Conservation and Recovery Act, Superfund, the 
Clean Water Act, and the Clean Air Act. It is crucial that this court 
retain its independence.
  The White House has rejected all Democratic efforts to work together 
on consensus nominees for this court and refused to engage in 
consultation. That is too bad and totally unnecessary. This is another 
in a series of inappropriate nominations this President has made to 
this court. Last week, Senate Republicans voted in lockstep to confirm 
Janice Rogers Brown to this court. The takeover of this court is now 
complete. Mr. Griffith is the third nominee for this court from 
President Bush to be considered by the Senate. If he is confirmed the 
11 judges on the court will include a majority of seven judges 
appointed by Republican Presidents.
  At Mr. Griffith's hearing last March, I noted that unlike the many 
anonymous Republican holds and pocket filibusters that kept more than 
60 of President Clinton's moderate and qualified judicial nominees from 
moving forward, the concerns about Mr. Griffith were no secret. Unlike 
the Republicans' pocket filibusters of Allen Snyder and Elena Kagan, 
who were each denied consideration and an up or down vote when 
nominated to the D.C. Circuit, Mr. Griffith knows full well that I 
think he has not honored the rule of law by his practicing law in Utah 
for 5 years without ever bothering to fulfill his obligation to become 
a member of the Utah bar.
  By one count, Mr. Griffith has so far foregone 10 opportunities to 
take the Utah bar exam while applying for and maintaining his position 
as general counsel at BYU. He is about to forego an eleventh. This 
conscious and continuous disregard of basic legal obligations is not 
consistent with the respect for law we should demand of lifetime 
appointments to the Federal courts. He has yet to satisfactorily 
explain why he obstinately insists on refusing to do what hundreds of 
lawyers do twice a year in Utah and thousands of lawyers do around the 
country: apply for and take the State bar exam and qualify to become a 
member of the State bar in order to legally practice law.
  He has testified that he has obtained a Utah driver's license and 
pays Utah State taxes, but he is not a member of the bar despite 
admitting practicing law there since 2000. This is not Mr. Griffith's 
first or only bar problem. Mr. Griffith was less than forthcoming with 
us on questions related to his repeated failures to maintain his D.C. 
bar membership and his failures to pay his annual dues on time not just 
once, not twice, but in 1996, 1997, 1998, 1999, 2000 and 2001. He was 
twice suspended for his failures, including one suspension that lasted 
for 3 years.
  As was reported last summer in the Washington Post, and confirmed 
through committee investigation, Mr. Griffith has spent the last 5 
years as the general counsel to BYU. In all that time he has not been 
licensed to practice law in Utah, nor has he followed through on any 
serious effort to become licensed. He has hidden behind a curtain of 
shifting explanations, thrown up smokescreens of letters from various 
personal friends and political allies, and refused to acknowledge what 
we all know to be true: Mr. Griffith should have taken the bar. I ask 
unanimous consent that the relevant Washington Post articles be printed 
in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

               [From the Washington Post, Nov. 17, 2004]

 Court Nominee Gave False Data, Text Shows; Law License Was Suspended 
                          Despite Early Denial

                         (By Carol D. Leonnig)

       Thomas B. Griffith, President Bush's nominee to the U.S. 
     Court of Appeals for the District of Columbia Circuit, 
     appeared to provide inaccurate information to Utah bar 
     officials about his legal work and lapses in obtaining law 
     licenses over the past year, according to documents released 
     yesterday at his nomination hearing.
       Griffith's nomination has been stalled for months over 
     concerns that he failed to maintain a valid license for three 
     years while he practiced law in the District and Utah, and 
     that he did not obtain a Utah license after taking a job as 
     general counsel for Brigham Young University in Provo, Utah. 
     Even as Griffith defended his record yesterday, the new 
     documents added to that controversy.
       They show Griffith reported to Utah state bar officials 
     last year that his law license had never been suspended. It 
     had been suspended from 1998 to 2001. He also told the state 
     bar that he relied on his D.C. license to practice law in 
     Utah. But at yesterday's hearing, Griffith testified that he 
     had practiced law in Utah by relying on associations with 
     licensed attorneys there.
       Senate Judiciary Chairman Orrin G. Hatch (R-Utah), a 
     longtime friend of Griffith's who pledged to ``do everything 
     in my power'' to help him win confirmation, scheduled 
     yesterday's hearing for the middle of a lame-duck session and 
     was the sole committee member present to question Griffith. 
     Democrats said they were surprised Hatch proceeded despite 
     the slim chances of the Senate approving Griffith in the 
     remaining days before Congress adjourns and the objections to 
     the nominee.
       ``We're going to do our very best to get you confirmed 
     before the end of the session,'' Hatch told Griffith, before 
     acknowledging: ``It'll be miraculous if we do.''
       Senator Russell Feingold (D-Wis.) asked that Griffith's 
     application and letters to the Utah bar be released at 
     yesterday's hearing.
       The Washington Post reported this summer that Griffith's 
     D.C. license had been suspended because he did not pay bar 
     dues from 1998 to 2001, a lapse that prevented Griffith from 
     obtaining a reciprocal law license in Utah after he took the 
     Brigham Young job. Griffith applied late last year to take 
     the bar exam to obtain a Utah license but never sat for the 
     January 2004 test.
       Last month, the American Bar Association gave Griffith the 
     lowest passing grade for a judicial nominee, a ``qualified'' 
     rating. A large minority of the review committee voted ``not 
     qualified.''
       Yesterday, in his first public comments on the matter, 
     Griffith said he ``deeply regrets'' his failure to make sure 
     that his law firm paid his dues so he could keep a valid 
     District law license. ``I bear full responsibility for what 
     happened,'' he said. ``I should not have relied on others.''
       Griffith added that because his license was suspended for 
     administrative reasons, he never considered it a true 
     suspension or disciplinary matter, and did not report it to 
     Utah officials. ``The thought never crossed my mind that it 
     was related,'' he said.
       Griffith also defended his decision not to obtain a Utah 
     law license since becoming general counsel at Brigham Young, 
     Hatch's alma mater, in the summer of 2000.
       ``It was always my understanding that in-house counsel need 
     not be licensed,'' he said, as long as he worked with lawyers 
     who did have valid Utah state licenses when he dispensed 
     advice on state matters. He said he has been ``meticulous'' 
     in limiting his work by collaborating with the four lawyers 
     he supervises in his office.
       In the newly released licensing application to the Utah 
     state bar, however, Griffith answered ``yes'' to a question 
     on whether he practiced law in Utah. He reported that he did 
     so as general counsel for Brigham Young, relying on his D.C. 
     law license.
       In April 2003, the documents show, Griffith wrote a letter 
     seeking advice from the Utah bar on how he could obtain a 
     state license. Griffith said he had erred in assuming that a 
     new state rule might help him get a reciprocal license. The 
     bar's general counsel,

[[Page 12330]]

     Katherine A. Fox, wrote back the next month urging him to 
     apply to take the bar exam and warning him to work with 
     licensed colleagues in the meantime.
       ``It is unfortunate that you anticipated relying on the 
     rule without having an understanding of the restrictions it 
     imposed,'' she wrote.
                                  ____


               [From the Washington Post, Sept. 30, 2004]

Appeals Nominee Gets Low Grade; ABA Cites Licensing Lapses in Granting 
                           `Qualified' Rating

                         (By Carol D. Leonning)

       The American Bar Association yesterday gave President 
     Bush's choice for a seat on the U.S. Court of Appeals for the 
     District of Columbia the lowest possible passing grade for 
     judicial nominees, and sources said a Republican Senate 
     chairman was expected to schedule a hearing next week on his 
     nomination.
       Thomas B. Griffith, who failed to obtain a law license in 
     Utah or keep a current license in the District during parts 
     of the past six years, received a slight majority from his 
     peers after an unusually long, three-month investigation. 
     Under the ABA's system, that means at least eight of the 15 
     members on the review panel rated him ``qualified'' for a 
     seat on the court, and at least six rated him ``not 
     qualified.''
       The national lawyers group, which also offers a higher 
     rating of ``well qualified,'' evaluates judicial nominees for 
     the Senate.
       Others have received the same rating and been appointed to 
     the federal judiciary. Of the 10 Bush administration appeals 
     court nominees who received the same rating, six were 
     confirmed to the bench. In President Bill Clinton's second 
     term, two of the five appellate court nominees who received 
     that rating were confirmed.
       Griffith has declined to discuss his pending nomination.
       A spokeswoman for Senate Judiciary Chairman Orrin G. Hatch 
     (R-Utah) declined to say whether he plans to hold a 
     nomination hearing for Griffith, but committee sources said 
     they expect Hatch to announce today that he will schedule a 
     hearing for Oct. 7. Hatch has campaigned for Griffith's 
     confirmation, telling senators it is personally important 
     that the White House nominee, a friend who hails from Hatch's 
     home state, join the bench.
       ``The chairman is pretty committed to this nominee and has 
     a high impression of Mr. Griffith,'' said Hatch spokeswoman 
     Margarita Tapia.
       Griffith failed to renew his law license in Washington for 
     three years while he was a lawyer based in the District from 
     1998 to 2000, as counsel to the U.S. Senate and a partner in 
     the firm of Wiley Rein and Fielding. He said the licensing 
     dues were not paid because of an oversight by his firm's 
     staff.
       But that lapse subsequently prevented Griffith from 
     receiving a law license in Utah when he took a job as general 
     counsel for Brigham Young University in August 2000. Griffith 
     said he discovered his D.C. license had expired in 2001. The 
     Utah Bar told Griffith that after so many years without a 
     valid license, the only way he could obtain a Utah license 
     was to take the Utah bar exam. Griffith applied to sit for 
     the arduous test but never took it, bar officials said.
       Opponents of Griffith's nomination said yesterday that the 
     low rating and the lateness of the Senate session should 
     prevent him from getting a hearing.
       Sen. Patrick J. Leahy, (D-Vt.) who this month said 
     Griffith's nomination was on ``life support,'' said yesterday 
     that he was surprised the White House and Hatch continue to 
     press for a nominee with ``not exactly a confidence-inspiring 
     rating.''
       ``This is a nominee who has been suspended from one legal 
     jurisdiction and who apparently continues to this day to 
     engage in the unauthorized practice of law in another,'' he 
     said.
       Thomas Z. Hayward Jr., a Chicago lawyer with Bell, Boyd & 
     Lloyd and chairman of the ABA standing committee on judicial 
     nominations, acknowledged this is ``one of the more 
     difficult'' nominee investigations for the bar. He said that 
     after Griffith's license lapses were reported in The 
     Washington Post in June and a preliminary investigation was 
     conducted in July, committee members appeared ``very closely 
     split'' about whether Griffith met the minimum qualifications 
     for an appellate judgeship.
       Hayward said he then ordered a supplemental investigation 
     ``to be fair to the nominee.'' About 40 more people with 
     direct knowledge of Griffith, his licensing lapses in the 
     District and Utah, and his career were interviewed.
       People can respectfully disagree, but we have probably done 
     more investigation into the questions raised by this 
     nomination than anybody else, including the White House, the 
     FBI and the two sides of the [Senate] Judiciary Committee,'' 
     Hayward said.

  Mr. LEAHY. Practicing law without a license, or as the bars call it, 
unauthorized practice of law, is not a technicality. In some States it 
is a crime. In Texas, for example, it is a third degree felony. It is a 
serious dereliction of a lawyer's duty. It is a commonplace of American 
jurisprudence that no one is above the law. If the American people are 
to have confidence in our system of laws that must include the lawyers, 
and beyond question, it must include the judges. I continue to be 
disappointed by Mr. Griffith's unwillingness to do what is now long 
overdue: namely, to take the Utah bar exam and become properly licensed 
to practice law in Utah, where Mr. Griffith has been practicing law for 
the last 5 years.
  Despite the evident controversy surrounding his practice of law in 
Utah for 5 years without becoming a member of the Utah bar, he appears 
to have comfortably and conveniently placed himself above the law. That 
is not something I look for in lifetime appointments to the Federal 
courts. For a court that decides some of the most important issues of 
law in our Nation, where the ruling in just one case can affect 
millions of people in the most critical areas of their lives, the 
President has chosen to send us a nominee whose disregard for the rules 
that apply to him is simply unacceptable.
  Over the months that this nomination has been pending before us we 
have done a good deal of investigation into this matter on a bipartisan 
basis. The committee investigators questioned the nominee, spoke to 
officials and experts at the D.C. bar and the Utah bar, asked for and 
received correspondence and other documents relating to Mr. Griffith's 
bar memberships and worked to understand the facts and circumstances 
surrounding the two situations. Having reviewed all of this information 
and studied Mr. Griffith's many answers, I have come to the inescapable 
conclusion that he feels he cannot be bothered to live up to the laws 
that apply to everyone else.
  I will begin with the D.C. bar dues problem. In his initial 
description of this problem Mr. Griffith did his best to downplay it, 
telling the committee in his questionnaire that his membership in the 
D.C. bar ``lapsed for non-payment of dues . . . due to a clerical 
oversight.'' At the committee hearing on his nomination, he tried to do 
the same, telling us that from the time he first began practicing law 
in North Carolina, and continuing through the time he practiced with a 
firm in D.C., he counted on his law firm to pay his bar dues. He went 
on further to say that when he took the job as Senate legal counsel he 
discovered the Government does not pay your professional fees. Here, I 
quote his testimony, where he told us: ``[W]hen I learned that the 
Senate wouldn't pay, I notified the D.C. bar to send the bar notices to 
my home, where I pay personal bills. They did so in '95, '96 and '97, 
and every time they sent a notice, I paid.''
  The only problem arose, according to Mr. Griffith, in 1998, when, for 
reasons he cannot explain, the D.C. bar suddenly stopped sending him 
mail. He says he never received his bill for the 1998 dues year, does 
not remember receiving any of the follow-up notices the bar routinely 
sends, and simply forgot about his obligation until 3 years later, when 
he was seeking a certificate of good standing from the D.C. bar.
  All of this may seem relatively harmless but a more serious problem 
arises because what Mr. Griffith told us and what he testified to is 
not entirely true, it was not the whole truth. For example, his 
membership in the D.C. bar did not just lapse when he failed to pay his 
dues in 1998, it was actually suspended. That means for the 3 years the 
suspension lasted, he was not legally allowed to practice in reliance 
on his D.C. law license. And he was not only suspended once from the 
D.C. bar, he was suspended twice, once in 1998 for not paying his dues 
at all, and also the year before, in late 1997. Furthermore, we have 
also learned that while he managed to avoid suspension in 1996, he paid 
his bar dues late that year, as well. Contrary to his misleading 
testimony at his hearing, it seems that the only year Mr. Griffith 
actually paid his D.C. bar dues on time, after coming to the Senate in 
1995, was in 1995. Two suspensions from the practice of law in 2 years, 
3 late or nonexistent payments in 4 years, and an attempt to mischar-
acterize this embarrassing record are hardly just a single 
``administrative oversight'' unless by that Mr. Griffith means to 
indicate that his single admitted error is that he does not comply with 
the law.

[[Page 12331]]

  What may be more disturbing than Mr. Griffith's failure to pay his 
D.C. dues, for whatever reason, is his lack of concern about the 
implications of having practiced law in D.C. without proper licensure. 
When I asked him if he had notified his clients from the period he was 
suspended, whether he had told his partners or even the law firm's 
liability insurance carrier, he brushed me off, telling me that his 
membership in good standing was reinstated once he paid his dues. Of 
course, that ignored my real question about the ramifications of having 
been suspended for 2 separate periods totaling more than 2 years. 
Clients should be notified, partners should be told, and courts should 
be contacted.
  The Department of Justice apparently agrees that suspension for 
failure to pay bar dues is a serious matter. Recent newspaper reports 
disclosed that the Department's Office of Professional Responsibility 
takes such a matter seriously enough to have opened an investigation 
into the case of a longtime career attorney there who, like Mr. 
Griffith, was suspended from the D.C. bar because he did not pay his 
dues. Unlike Mr. Griffith's case, the Department is concerned enough 
about such a suspension that they filed notices with the courts in 
every case this attorney worked on during the period of his suspension, 
notifying them that he was not authorized to practice at the time. This 
may impact the matters that Government attorney was supervising, which 
included the treatment and proper compensation of black farmers. 
Practicing law without a license is a serious matter.
  The facts surrounding Mr. Griffith's membership, or lack thereof, in 
the Utah bar are even more disturbing. Thomas Griffith began his 
service as assistant to the president and general counsel of BYU in the 
summer of 2000. At that time he was not a member of the Utah bar, he 
was suspended from membership in the bar of the District of Columbia, 
and he was an inactive member of the North Carolina bar. He apparently 
did not have a valid license to practice from any jurisdiction.
  According to BYU, its general counsel ``is responsible for advising 
the Administration on all legal matters pertaining to the University.'' 
In addition:

       All contracts, other legal documents and legal questions 
     pertaining to the University or its personnel shall be 
     presented to the Office of General Counsel or its staff 
     members as directed for approval and/or recommendation. The 
     General Counsel directs and manages all litigation involving 
     the University and decides when to engage outside counsel and 
     the terms and duration of outside counsel's representation. 
     The General Counsel delegates the University's legal work 
     among the lawyers in the office and supervises the work of 
     the office.
     --https://bronx.byu.edurystlife/prod/Handbook/University/
     Organization/President.html

  Mr. Griffith gave us a similar description of his duties, telling the 
committee:

       When University policy involves legal matters, I advise the 
     President's Council and its members on the legal issues 
     implicated . . . In addition, I supervise the work of the 
     Office of the General Counsel, which includes interpreting 
     University policy, participating in transactions involving 
     the University and outside entities, overseeing litigation, 
     assuring compliance with law, and coordinating activities 
     with other University offices whose work involves legal 
     issues such as human resources, risk management, and internal 
     audit.
     --Responses of Thomas B. Griffith to the Written Questions of 
     Senator Russell D. Feingold, Dec. 3, 2004, Q.1.

  But Utah law prohibits the practice of law in Utah by any person not 
``admitted and licensed to practice law within this state.'' Rule 5.5 
of the Utah Rule of Professional Conduct holds that, ``[a] lawyer shall 
not practice law in a jurisdiction where doing so violates the 
regulation of the legal profession in that jurisdiction.''
  So, what made Mr. Griffith think he could practice law and not be a 
member of the Utah bar? Mr. Griffith testified to the committee that, 
``it was my understanding that in Utah in-house counsel need not be 
licensed in Utah, provided that when legal advice is given, it is done 
so in close association with active members of the Utah bar.'' When I 
asked him in writing to explain how he came to that understanding, and 
to point out which Utah laws or bar rules might apply, Mr. Griffith 
told us only that this, ``understanding was formed over the course of 
the years of practicing law and as I had interacted with in-house 
counsel in a variety of settings including other Utah in-house counsel 
who were not members of the Utah bar.''
  Mr. Griffith testified that he relied on an in-house counsel 
exception that does not exist in Utah statutes and is not recognized by 
the Utah Supreme Court, as Mr. Griffith was forced to concede. It was a 
most convenient and self-serving excuse. There is no such ``general 
counsel'' exception in Utah and there never has been. He could not 
point to any Utah statute or Utah Supreme Court pronouncement allowing 
this behavior because it does not exist as a matter of law. Moreover, 
his predecessor at BYU and the general counsels of the other 
universities in Utah are all members of the Utah bar.
  Previously, in his April 2003 letter to John Adams, then the 
president of the Utah bar, Mr. Griffith explained the matter 
differently and relied specifically on a former BYU general counsel and 
on unnamed persons at the Utah bar, saying that, ``I was told by my 
predecessor that the Utah bar had created'' what he referred to as a 
``general counsel exception'' and that ``I didn't need to become a 
member of the Utah bar to perform my responsibilities. Subsequent 
conversations with people in your office as well as discussions with 
other general counsel around the state confirmed that understanding.''
  Mr. Griffith has never been able to identify who at the Utah bar he 
claims advised him that he did not need to join the bar. This 
fundamental refusal to abide by the law is all the more troubling by 
Mr. Griffith's obstinate behavior in refusing to take the bar in order 
to cure his failure. This is not complicated: Get licensed. Indeed, 
during the course of committee consideration he admitted that when he 
asked a second-year law student to research the matter she came back to 
him and advised that he should take the bar. Yet here we are, with the 
Senate being urged to confirm someone to a lifetime appointment as a 
Federal judge on a court with jurisdiction over important cases that 
can have nationwide impact and that nominee has adamantly refused to 
follow legal requirements in his own legal practice.
  Mr. Griffith did respond for the first time in his December 3, 2004 
answers to some of our written questions that he had spoken to Bar 
President Adams in March 2002. But in his answers, Mr. Griffith 
reported the subject of that conversation was whether or not, in order 
to join the bar, he would need to take the bar examination, rather than 
whether or not he needed to become a bar member in the first place. Mr. 
Griffith explained to the committee that he took Mr. Adams' silence on 
the unasked question to be an endorsement of his self-serving position 
that he did not need to be a member of the Utah bar to carry out his 
responsibilities at the University.'' To Mr. Griffith, Mr. Adams' 
silence on this unarticulated question apparently overrode all of the 
rules of the Utah bar and the laws of the State of Utah.
  There was one official representative of the Utah bar who told Mr. 
Griffith in no uncertain terms what to do; namely, take the Utah bar 
examination. Asked by Mr. Adams to respond to the April 10, 2003 
letter, Katherine Fox, Utah bar general counsel, wrote to Mr. Griffith 
on May 14, 2003, telling him she was ``surprised'' he thought there was 
a general counsel exception, and explaining that in his circumstances 
there was no way to waive into the Utah bar and become a member without 
taking the bar exam. In her letter, and in plain, simple-to-understand 
words, Ms. Fox instructed Mr. Griffith to take the bar examination at 
the earliest opportunity. Ms. Fox wrote Mr. Griffith: ``You are 
fortunate, however, to have a viable option remaining, i.e., admittance 
by examination and I would encourage you to start preparing your 
application as soon as possible.'' In addition, she ``strongly'' 
encouraged him to, ``review [his] current duties,'' and to either limit 
his work to non-legal practice or, if legal activities were unavoidable 
in the interim until he could pass the exam, be admitted to the Utah 
bar and cure his deficiency, ``to closely associate with someone who is 
actually

[[Page 12332]]

licensed here and on active status.'' She closed by reminding him that 
the character and fitness portion of the evaluation of prospective 
members of the Utah bar could be affected by ``[p]racticing law without 
a Utah license.'' I ask unanimous consent that Mr. Griffith's letter to 
the Utah bar and Katherine Fox's response be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record as follows:

                                               Utah State Bar,

                               Salt Lake City, Utah, May 14, 2003.
     Thomas B. Griffith,
     Assistant to the President, Office of the General Counsel, 
         Brigham Young University, Provo, UT.
       Dear Mr. Griffith: I have been provided with a copy of your 
     letter dated April 10, 2003 and would like to respond on 
     behalf of the Bar to a few issues which you raised. First, I 
     was somewhat surprised that you were informed by your 
     predecessor at Brigham Young University's Office of General 
     Counsel and perhaps others that Utah had created a ``general 
     counsel rule exception.'' As you are now aware from speaking 
     with Joni Dickson Seko, the Bar's Deputy General Counsel in 
     charge of admissions, Utah does not have and has never had 
     such a rule. Second, although we were optimistic that the 
     Utah Supreme Court would approve the proposed reciprocity 
     rule, there was no guarantee that it would happen or that the 
     rule would emerge in the format we submitted.
       It is unfortunate that you anticipated relying on the rule 
     without having an understanding of the restrictions it 
     imposed. However, I know of no other jurisdiction where a 
     reciprocity rule has no conditions or restrictions such as a 
     years of practice requirement. For instance, North Carolina's 
     reciprocity rule requires applicants to have been physically 
     practicing law elsewhere for at least four out of the last 
     six preceding years.
       Your reading of the new reciprocity rule is accurate and 
     admission to the Utah State Bar requires a minimal number of 
     years of active practice in the reciprocating jurisdiction. 
     As both Ms. Seko and her assistant Christy Abad have informed 
     you, the Rules for Admission do not provide for Bar staff or 
     our governing body, the Board of Bar Commissioners, to make 
     any exceptions to uniform application of the rules. If an 
     applicant seeks a waiver of a rule it can only be granted by 
     the Utah Supreme Court through a petition. This route, 
     however, historically has not proven very fruitful for those 
     seeking waivers. See, e.g., In re Larry Gobelman, 31 P.3d 535 
     (Utah 2001).
       You are fortunate, however, to have a viable option 
     remaining, i.e., admittance by examination and I would 
     encourage you to start preparing your application as soon as 
     possible. The application is an extensive one and it takes 
     time to complete including making arrangement for the 
     necessary supporting documentation. While I know you spoke 
     with Joni about your inability to meet the May 1st deadline, 
     I wanted you to realize that the final (and again, non-
     waivable) deadline (with a $300 late fee) is December 1st for 
     the February 2004 exam. Earlier deadlines are October 1st (no 
     late fee) and November 1st ($100 late fee).
       Finally, while I regret any misunderstandings or 
     assumptions that may have occurred, I also would strongly 
     encourage you to carefully review your current duties as 
     Assistant to the President in the Office of General Counsel. 
     As noted above, we have no general counsel exception rule 
     allowing individuals who serve in such positions to actually 
     practice law without Utah licensure. Towards that end, it 
     would be a prudent course of action to limit your work to 
     those activities which would not constitute the practice of 
     law. If such activities are unavoidable, I strongly urge you 
     to closely associate with someone who is actually licensed 
     here and on active status. Finally, just so you know, all 
     applicants are required to undergo a character and fitness 
     assessment prior to being permitted to take the examination. 
     Practicing law without a Utah license has been an issue for 
     some applicants in the past and has resulted in delayed 
     admission or even denial.
           Very truly yours,
                                                 Katherine A. Fox,
     General Counsel.
                                  ____

                                    Office of the General Counsel,


                                     Brigham Young University,

                                      Provo, Utah, April 10, 2003.
     John Adams,
     President, Utah Bar Association, c/o Ray Quinney & Nebeker, 
         South State Street, Salt Lake City, Utah.
       Dear John: I need your advice. When I moved to Utah to 
     accept the position of Assistant to the President and General 
     Counsel of Brigham Young University, I was told by my 
     predecessor that the Utah Bar had created what he referred to 
     as a ``general counsel exception'' and that I didn't need to 
     become a member of the Utah Bar to perform my 
     responsibilities. Subsequent conversations with people in 
     your office as well as discussions with other general counsel 
     around the state confirmed that understanding. I have, 
     however, always been active in bar associations where I have 
     practiced--Washington, DC and North Carolina--and I 
     determined that I wanted to be admitted to the Utah Bar. To 
     that end, I prepared to take the bar exam last summer. During 
     the course of preparing my application materials, I learned 
     that the Utah Supreme Court was then actively considering the 
     reciprocity rule that it has only recently adopted. In 
     discussions with the Utah Bar Association (maybe even you--my 
     memory is not entirely accurate on this point), I was advised 
     that the conventional wisdom was that the Court would in fact 
     promulgate a reciprocity rule. For that reason, I suspended 
     my preparations and did not submit my application nor take 
     the bar exam last summer.
       I have now read the reciprocity rule recently adopted by 
     the Court and. as far as I can tell, it may not be helpful to 
     me. The requirement that an applicant for admission under the 
     reciprocity rule has been practicing law in the jurisdiction 
     from which he or she is seeking reciprocity for three of the 
     last four years is a bar to me inasmuch as I have been in 
     Utah and not practicing in Washington, D.C. or North Carolina 
     for the last two and one-half years. I am writing you to see 
     if there might be some interpretation of which I am unaware 
     that would allow me to be admitted to the Utah Bar without 
     taking the exam. If there is not, I will prepare to take the 
     bar exam next summer.
       I look forward to hearing from you.
           Sincerely,
                                               Thomas B. Griffith,
                                                  General Counsel.

  Mr. LEAHY. This response from a career lawyer in the Utah bar made 
before political pressure was ratcheted up to defend a Republican 
nominee, seemed pretty straightforward to me. That was almost 2 years 
ago and still Mr. Griffith has not taken the bar exam, has not made 
arrangements to take the bar and, according to his testimony in answer 
to my questions last month, has no intention of taking the bar and 
becoming a member of the Utah bar despite having practiced law there 
for 5 years.
  In an interpretation worthy of the Queen of Hearts from Alice in 
Wonderland, Mr. Griffith and his supporters have defied logic and 
reason by turning Ms. Fox's letter upside down in an attempt to 
characterize it as something other than it is and to condone his 
conduct. If he will make this self-serving interpretation in this case, 
what makes anyone think that he will not be the same sort of ends-
oriented judge that will twist facts and law in cases he rules on from 
the federal bench? Ms. Fox's recommendation that he ``closely 
associate'' himself with a Utah lawyer until he takes the bar and 
becomes a member of the bar was not offered as an indefinite safe 
harbor that permits him to violate Utah law. Ms. Fox's letter is being 
misused and mis-char-acterized as an invitation to flout the law. This 
is the kind of reinterpretation in one's own interest that 
characterizes judicial activism of the worst sort when employed by a 
judge.
  Although he can point to no time before having read Ms. Fox's letter 
where he used the phrase ``closely associate,'' and can show us no 
evidence that he arranged his work at BYU in accordance with this 
advice, Mr. Griffith has in hindsight tried to assert that he somehow 
always knew he needed to ``closely associate'' with Utah lawyers. 
Indeed, he variously responded to the committee that in his view he 
``closely associated'' if he first gave legal advice to a University 
official in a private meeting and then sometime later told a member of 
his staff who was admitted to the Utah bar about it.
  He points to former bar president John Adams' letter of June, 2004, 
and to Utah bar executive director John Baldwin's letter of July, 2004 
as support for his position, but these letters do not bolster his case. 
First of all, each is written long after Mr. Griffith's inquiry of the 
bar, and long after Katherine Fox told him to take the bar, but 
conveniently provided by his friends and supporters in the summer of 
2004 as the investigation into his bar membership was beginning. In any 
case, neither of the letters says anything to undermine Ms. Fox's 
letter. Indeed, the support letters only speak in the vaguest, most 
noncommittal terms. Mr. Adams says that Ms. Fox's letter ``accurately 
answered your questions, and . . . recommended a course of action to 
follow in your work so long as you were not licensed in the State of 
Utah.''
  Mr. Baldwin's letter is even stronger, telling Mr. Griffith: 
``[T]hose who engage in the practice of law in Utah

[[Page 12333]]

must be licensed by the Utah Supreme Court through the Utah State bar. 
There is no general counsel exception rule.'' Likewise, the letter Mr. 
Griffith produced from five former presidents of the Utah bar is of no 
effect. Aside from their obvious interest in supporting Senator Hatch's 
candidate who President Bush nominated and who is affiliated with one 
of the State's most powerful and influential institutions, their letter 
does not say much. They reiterate that there is no general counsel 
exception to the Utah bar membership rules, and say only that if a 
lawyer is not practicing Utah law he may closely associate himself with 
a Utah lawyer to do those parts of the job. They make no judgment about 
the sort of work Mr. Griffith is doing, or even whether, in their 
words, he ``lived up to this standard'' or whether his vague 
implementation of how he ``closely associated'' was ever explained to 
them, let alone whether they would have viewed it as passing muster.
  The other person we know of who looked at this question for Mr. 
Griffith was a second-year law student he asked to research the Utah 
laws and practice on bar admissions regarding in-house counsel in 
January 2004. By that time, Mr. Griffith had already been practicing 
law in Utah for 4 years. One can suspect he made this request at that 
time because his subsequent nomination was then under consideration at 
the White House. According to Mr. Griffith, who now seeks to claim 
attorney-client privilege and refuses to provide the committee and the 
Senate with the materials, she did not definitively complete her 
research: ``She recommended, therefore, that the safest course for a 
Utah corporation would be to ask its in-house lawyers to join the Utah 
bar.'' When we asked for the memorandum written by this law student, we 
were stonewalled by Griffith and BYU, which claimed privilege for this 
document. It is not clear to me why the university would be able to 
claim privilege for a document prepared in response to Mr. Griffith's 
personal problems with bar membership, or why once he himself revealed 
its contents we are not now entitled to see it. Nonetheless, we have 
not been able to see it.
  But, whatever the status of the specific memo, it comes down to this: 
A second-year law student in a truncated research assignment had enough 
sense to recommend that in-house counsel join the Utah bar. If she had 
known that such in-house counsel admits to practicing law in Utah, I 
suspect her advice would have been even more definitive. Of course, 
that is the prudent course and the one consistent with Utah law. After 
5 years, Mr. Griffith has refused to take the normal steps taken by 
scores of others every year in Utah and thousands of lawyers around the 
country and take the State's bar exam in order to gain admission to the 
State bar.
  Mr. Griffith has offered nothing in the way of legal authority or 
analysis that might begin to refute the common-sense conclusion one 
must reach after an examination of the law. Mr. Griffith has been 
practicing law in Utah without a Utah license. His excuses to the 
contrary are insufficient and wrong. He admits that he is practicing 
law in Utah. He does not have a Utah license to do so. After 5 years, 
he would appear to be in violation of Utah Code Section 78-9-101, and 
Rule 5.5 of the Utah Rules of Professional Conduct. There is no 
``general counsel'' or ``in-house counsel'' exception on which he can 
rely to justify his practice of law in Utah since 2000 without having 
become a member of the Utah bar.
  In addition to that threshold matter of practicing law without being 
a member of the Utah bar, there are other reasons for serious concern 
about Mr. Griffith's fitness to be a member of the United States Court 
of Appeals for the District of Columbia Circuit. I have already alluded 
to his creative, ``activist'' reading of the facts in law in connection 
with his bar admission problems. In addition, he has spoken in 
Federalist Society circles of his judgment that President Clinton was 
properly impeached and that he would have voted for his conviction and 
removal from office. Given his role as Senate Legal Counsel at the 
time, these public musings are unseemly and unsound. Rather than 
campaigning for this nomination, Mr. Griffith would have better spent 
his time preparing for and taking the Utah bar exam.
  His judgment is likewise brought into serious question by his views 
on title IX of our civil rights laws. This charter of fundamental 
fairness has been the engine for overcoming discrimination against 
women in education and the growth of women's athletics. I urge all 
Senators to think about our daughters and granddaughters, the pride we 
felt when the U.S. women's soccer team began winning gold medals and 
World Cups, the joy they see in young women with the opportunity to 
play basketball and ski and compete and grow.
  With the recent reinterpretation of title IX being imposed by this 
administration in ways that will no doubt be challenged through the 
courts, we may now understand why the Bush administration sees the 
appointment of Mr. Griffith to the D.C. Circuit Court as such a 
priority. His narrow views on title IX were unveiled during his efforts 
as a member of the Bush administration Secretary of Education's 
Commission on Opportunity in Athletics, to constrict the impact of 
title IX. Does anyone doubt that he would rule that the Bush 
administration's revision through regulations should be upheld?
  The U.S. Supreme Court recently decided that whistleblowers are 
protected in the title IX context. That was a close 5-4 decision in 
which Justice O'Connor wrote for the majority. Just the other day the 
Justices refused to hear a challenge to an appellate court decision 
that essentially found that title IX could not be blamed for cutbacks 
in men's athletic programs. These recent legal developments regarding 
title IX serve to remind us how important each of these lifetime 
appointments to the Federal courts is. In light of the record on this 
nomination, I am not prepared to take a chance on it and will vote 
against it.
  It is my understanding we are voting at 10.
  The PRESIDING OFFICER (Mr. Vitter). The Senator is correct.
  Mr. LEAHY. Have the yeas and nays been requested?
  The PRESIDING OFFICER. They have not yet been requested.
  Mr. LEAHY. I request the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I ask unanimous consent to be given equal 
time as the Senator from Vermont.
  The PRESIDING OFFICER. Is there objection?
  Mr. LEAHY. I am sorry. I could not hear.
  Mr. HATCH. I ask that I be given the same amount of time that the 
Senator from Vermont had to speak on Mr. Griffith.
  The PRESIDING OFFICER. Is there objection?
  Mr. LEAHY. Mr. President, I probably would not object. I would point 
out that I was responding to the distinguished Republican leader who 
had spoken an equal amount of time on Mr. Griffith. I had spoken 
yesterday considerably less time, on the same nomination, than the 
distinguished senior Senator from Utah. I also know both the Republican 
and Democratic cloakrooms have notified their Members that we are going 
to vote at 10. There are a number of hearings that have been 
established based on that. As a matter of courtesy, I am not going to 
object, but I wanted the distinguished Senator from Utah to know I took 
the same amount of time the distinguished Republican leader did on the 
same thing, and overall less time than the distinguished Senator from 
Utah has taken. I will not object.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The Senator from Utah.
  Mr. HATCH. Mr. President, I appreciate my colleague not objecting, 
and I will limit myself to about half the time that he has taken this 
morning just out of courtesy to him.

[[Page 12334]]

  I know Tom Griffith. We all know Tom Griffith. Tom Griffith was 
general counsel of the Senate. He served the Senate well. He did it in 
a nonpartisan way, even though he is a Republican. He helped all of us 
during the impeachment. Both sides acknowledge that he was terrific. He 
has all the academic and legal credentials necessary to fulfill this 
position. He is a person who is a consensus builder, someone who tries 
to get along with everybody and who, I think, will be perfect on this 
particular court.
  So I hope everybody will vote for Tom. He is a member of our family. 
He served us all. As a general rule, in the past, people who have 
served us such as Tom Griffith has would pass this body 100 to zip. 
Unfortunately, we have had some very forceful partisan politics rear 
its ugly head in some of these judgeship issues, and from time to time 
it may have been on both sides, but in this particular case it has been 
all on one side.
  I get a little tired of hearing the same arguments over and over 
again. The fact is, when President Bush 1 left office there were 54 
holdovers with the Democrats in control of the Senate, and he only 
served 4 years. One could imagine how many there would have been if he 
served 8 years. The fact is, the all-time confirmation champion was 
Ronald Reagan who had 382 judges confirmed in his 8 years, but he had 6 
years of a Republican Senate to help him. President Clinton got almost 
the same number, a total of 377, with only 2 years of his own party to 
help him.
  As chairman of that committee, I know I did everything in my power to 
give the Clinton nominees an opportunity to get an up-or-down vote, and 
when they reached the floor I think virtually all of them got an up-or-
down vote without any delays or filibusters.
  The Clinton administration was treated very fairly. There were people 
left over at the end of his administration, and he had 8 years, no more 
than were left over basically when President Bush I left the 
Presidency.
  Getting back to Tom Griffith, as most of my colleagues know, Tom 
served as Senate legal counsel for 4 years so many of us have had 
first-hand experience with him.
  Because the D.C. Circuit reviews cases involving Federal statutes, 
regulations, and other important matter, this is a tough assignment. 
Many observers believe that the D.C. Circuit's jurisdiction makes it 
second in importance to that of the U.S. Supreme Court.
  Tom Griffith is up to the task of sitting on this court.
  At some length yesterday, I detailed his qualifications.
  Time is short today, so I will make only a few summary comments.
  In order to become the exceptional lawyer that he is today, Tom 
Griffith had to gain an exceptional educational foundation.
  He accomplished this first as an undergraduate at my alma mater, 
Brigham Young University. He graduated summa cum laude and was the 
valedictorian of the BYU College of Humanities.
  Tom then attended the University of Virginia School of Law, where he 
was a member of the law review.
  Upon graduation, Tom joined the leading Charlotte, NC, law firm of 
Robinson, Bradshaw, and Hinson where he was an associate specializing 
in commercial litigation.
  In 1989, Tom moved to Washington, DC, to become an associate, and 
then a partner, in the firm of Wiley, Rein and Fielding--by all 
accounts, a highly-regarded law firm.
  He began his four year stint as Senate legal counsel in 1995 and 
served through the very challenging impeachment trial of President 
Clinton that concluded in early 1999.
  Upon departing from the Senate, Tom returned to Wiley, Rein and 
Fielding for a period of time before he went to Utah in 2000 to serve 
as assistant to the president and general counsel of Brigham Young 
University. He serves in that capacity today.
  This is a bare bones sketch of a distinguished professional career. 
Along the way, Tom Griffith has faced many challenges and he has 
impressed many with his legal skills.
  Here is what associate dean and professor of law, Constance Lundberg, 
of the J. Reuben Clark School of Law has to say about Mr. Griffith:

       [Tom] is also a lawyer of unexcelled ability. He 
     understands the differences between law and policy and has a 
     deep understanding of the powers and prerogatives of each of 
     the three branches of government. He is immensely fair and 
     compassionate. The laws and Constitution of the United States 
     could not be in better hands.

  These comments do not stand alone in academic circles. Harvard Law 
Professor William Stuntz has said the following about Tom:

       I know a great many of talented men and women in America's 
     legal profession. I have taught more than three thousand 
     students at three top law schools, and I have friends 
     scattered across the country in various kinds of law practice 
     and in academics. I do not know anyone whom I would rather 
     see on the federal bench than Tom Griffith. If he is 
     confirmed, he will not be a good judge. He will be a great 
     one.

  I think that both of these professors have made assessments that we 
would be wise to take into account.
  Over the past 10 years, Tom has demonstrated his commitment not only 
to the legal profession but to the broader justice system. He has 
volunteered a great deal of time in training judges and lawyers in 
Eastern Europe, impressing many, including Mark Ellis, the executive 
director of the International Bar Association, who had this to say 
about Tom Griffith:

       The duty of a judge is to administer justice according to 
     the law, without fear or favor, and without regard to the 
     wishes or policy of the governing majority. Tom Griffith will 
     fervently adhere to this principle.

  We in the Senate have ample evidence that Tom Griffith will place the 
law over partisan politics. Tom was Senate legal counsel during the 
Clinton impeachment trial and won praise from those on both sides of 
the aisle. Yesterday, I quoted from Senator Dodd's speech in tribute to 
Tom on his departure from the Senate. Senator Bennett, my colleague 
from Utah, has already explained the constructive role that Tom played 
in keeping the Senate together during the impeachment trial. I agree 
that the reputation of the Senate was enhanced rather than degraded 
through that time, in part because of the steady hand and solid 
guidance of Tom Griffith.
  Few nominees that come before the Senate are as well-known by 
Senators as Tom Griffith and we know that he can handle complex 
problems in a charged atmosphere in a manner that brings consensus.
  I think that the qualities that Tom displayed as Senate legal counsel 
are exactly those that we need on the Federal bench.
  Many agree with this assessment. For example, here is what one of our 
Nation's leading appellate lawyers, the Clinton administration's 
Solicitor General Seth Waxman, had to say about Mr. Griffith:

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

  This strong sentiment in favor of Tom Griffith's competence and 
character is shared, not surprisingly, by his former law partners and 
mentors. Fred Fielding, former White House Counsel to President Reagan 
and former chairman of the American Bar Association's Standing 
Committee on the Federal Judiciary, has described Tom Griffith as ``a 
very special individual and a man possessed of the highest integrity. 
He is a fine professional who demands of himself the very best of his 
intellect and energies.''
  Another law partner of Mr. Griffith, Richard Wiley, has this to say 
about his qualifications:

       Tom is an outstanding lawyer, with keen judgment, congenial 
     temperament and impeccable personal integrity. He would bring 
     great expertise and fair-minded impartiality to the bench 
     and, in my judgment, would be a considerable credit to the 
     D.C. Circuit and the Federal Judiciary as a whole.

  Tom Griffith has the education, experience, judgment, and character 
to make an outstanding member of the Federal judiciary. I commend 
President Bush for nominating an individual from Utah who has a proven 
track

[[Page 12335]]

record as a lawyer and has strong bipartisan support.
  In addition to this affirmative discussion of Tom Griffith's 
qualifications and bipartisan support, I do need to respond to the few 
arguments that have been raised against his nomination by some on the 
other side of the aisle.
  First, my friend from Vermont, Senator Leahy, referred to Mr. 
Griffith yesterday as someone who ``admittedly practiced law illegally 
first in the District of Columbia and then in Utah.'' Mr. President, 
this statement is patently false.
  Mr. Griffith has admitted no such thing because he did no such thing.
  No court or administrative body, including no bar association, 
anywhere has ever concluded that Mr. Griffith has, in the Senator from 
Vermont's ill-chosen words, practiced law illegally.
  Neither have they found that Mr. Griffith engaged in the unauthorized 
practice of law, either in the District of Columbia or in Utah.
  Let me once again set this record straight with respect to both of 
these jurisdictions.
  In 2001, Mr. Griffith discovered that his D.C. bar membership had 
been suspended for failing to pay his annual dues. As soon as he became 
aware of the problem, he rectified it. He paid his dues in full and was 
promptly reinstated as a bar member in good standing.
  He remains a member in good standing today.
  This matter involving Mr. Griffith's bar dues does involve several 
unfortunate mistakes. In the early 1990s, Mr. Griffith worked for a 
large law firm in Washington and became accustomed to the firm's 
practice of paying its attorneys' bar dues.
  When he returned to that firm following his service as Senate legal 
counsel, he wrongly assumed the firm was once again paying his bar 
dues. He accepts full responsibility for the oversights and, as I said, 
is today a member in good standing.
  Mr. President, the only, I repeat, the only question is whether this 
error was anything other than inadvertent. And Mr. Griffith has 
answered that question with a clear and resounding no. No one, 
including the Senator from Vermont, has offered a shred of evidence to 
suggest otherwise.
  Each year, more than 3000 lawyers in the District of Columbia alone--
and, I understand, a number of sitting judges--similarly see their law 
license suspended for failure to pay bar dues.
  As in Mr. Griffith's situation, this is an administrative suspension, 
not a disciplinary suspension.
  Despite the rhetoric from the Senator from Vermont, we do not have 
thousands and thousands of lawyers practicing illegally in the Nation's 
Capital.
  In a letter to the Judiciary Committee dated June 14, 2004, former 
ABA Presidents Bill Ide and Sandy D'Alemberte wrote:

       By immediately paying his dues when he became aware of the 
     oversight, Tom took the proper course of action. According to 
     D.C. bar counsel, such an oversight is entirely common and of 
     no major concern.

  Yesterday the Senator from Vermont was trying to turn something 
entirely common and of no major concern into something untoward and of 
very grave concern. It will not work.
  The story is no different with respect to the Utah chapter of this 
story.
  Mr. Griffith graduated from the University of Virginia School of Law 
and practiced law in North Carolina and Washington, DC, for 15 years, 
including service as Senate legal counsel.
  The position he accepted of general counsel of Brigham Young 
University was very different, in both content and location, than his 
previous experience. He consulted with Utah attorneys requiring Utah's 
requirement for in-house counsel, and he has always complied with the 
advice he has received in this regard.
  Simply put, the advice he received was that he need not become a 
member of the Utah bar, so long as he worked with a bar member when 
engaged in legal practice activities. No one, including the Senator 
from Vermont, has documented that he has not met this standard.
  In a letter to the Judiciary Committee dated June 28, 2004, five 
former presidents of the Utah bar affirmed that ``a general counsel 
working in the state of Utah need not be a member of the Utah bar 
provided that when giving legal advice to his or her employer that he 
or she does so in conjunction with an associated attorney who is an 
active member of the Utah bar.''
  In a letter dated July 2, 2004, John Baldwin, executive director of 
the Utah bar, similarly affirmed that ``those who follow that advice 
are not engaged in the unauthorized practice of law.''
  Mr. Griffith not only complied with the letter of the advice he 
received, his actions are consistent with the spirit of that advice as 
well.
  In a letter to the editor of the New York Times dated July 4, 2004, 
law professors and legal ethics experts Monroe Freedman of Hofstra 
University and Thomas Morgan of George Washington University, 
emphasized that the requirement of bar membership is not a rule of 
legal ethics. Rather, it assures the public--those to whom lawyers 
offer their services--that lawyers are competent.
  Their letter states:

       The requirement of membership in a particular bar is not in 
     itself a rule of ethical professional conduct, but a lawyer's 
     guild rule . . . designed to restrict competition . . . At 
     best, the requirement of a license is intended to assure that 
     one who holds himself out to the public as a lawyer is indeed 
     competent to serve as a lawyer. In that regard, there is no 
     question about Mr. Griffith's competence, which is the only 
     ethical issue that is material.

  Obviously, this does not apply to an in-house counsel who does not 
hold himself out to the public. Brigham Young University, Mr. 
Griffith's employer, was well aware that he was not a bar member and 
was thoroughly satisfied with both his status and his service.
  The unsubstantiated charge that Mr. Griffith has practiced law 
without a license is pure hokum. Or as I explained yesterday, in the 
opinion of Abner Mikva, a former Democratic Congressman, White House 
Counsel to President Clinton, and former Chief Judge of the D.C. 
Circuit, this charge amounts to ``a whole lot of nothing.''
  Judge Mikva has it right. My friend from Vermont is simply wrong.
  The other area of criticism involves Mr. Griffith's views on title 
IX, a statutory provision which provides equal opportunities for women 
in college sports. Tom has proven that he is a strong supporter of 
title IX and women's rights.
  In fact, he was appointed to the Secretary of Education's Commission 
on Opportunity in Athletics by Rod Paige in part because of his 
outspoken support of title IX's objectives.
  In response to written questions from members of the Judiciary 
Committee, Tom Griffith expressed his personal convictions about title 
IX. He wrote:

       I am deeply committed to Title IX in particular and to 
     expanding and advancing opportunities for women in all areas 
     of our society. I am committed to that because it is the 
     right thing to do. But it is also personal for me. I am the 
     father of five daughters and a son. My entire adult life, I 
     have been an outspoken advocate for expanding opportunities 
     for women in part because it means more opportunities for my 
     daughters and a better society for my son. Those who know me 
     best know that about me.

  Let us consider what those who know Tom Griffith say in this regard. 
Brian Jones, former title IX commissioner and general counsel of the 
Department of Education, said:

       During the Commission's months of deliberation it was quite 
     clear that every member of the Commission--including Tom--
     strongly supports Title IX and is immensely proud of the 
     progress brought about by its passage. . . . Tom was 
     consistently a member of the Commission who was not only 
     willing but also eager to engage every commissioner's 
     opinions--listening and deliberating in a thoughtful manner, 
     in a sincere effort to bridge disagreements and seek 
     consensus where possible.

  Graham Spanier, president of Penn State University and another former 
title IX commissioner, had this to say:

       During the many months that Mr. Griffith served on the 
     Commission charged with reviewing Title IX, I found him to be 
     supportive of the law that established Title IX. He was, in 
     fact, outspoken in his support for the law while thoughtfully 
     reflecting on matters of interpretation and commenting on 
     potential refinements to enforcement protocols. . . . During 
     our work, Mr. Griffith

[[Page 12336]]

     stated his belief that Title IX was one of the great 
     landmarks in civil rights in our Nation.

  Ted Leland, former cochair of the title IX commission and director of 
athletics at Stanford University, affirms Tom's clear commitment to 
title IX:

       During our numerous public meetings, I found Mr. Griffith 
     not only a diligent commission member, but a staunch 
     supporter of Title IX.

  The list goes on, but because these baseless allegations linger, I 
want to also offer the views of Tom's colleagues at Brigham Young 
University. The executive director of BYU Women's Athletics, Elaine 
Michaelis, applauded Tom's efforts:

       Tom has been very supportive of our women's athletic 
     program, the coaches, and the athletes. I believe that he is 
     committed to women and minorities and to fairness in all 
     aspects of the law.

  B.R. Siegfried, an associate professor of English literature and 
Women's studies at BYU, said the following:

       I am an especially fierce advocate of equality for women, 
     and of the civil liberties that lend themselves to the 
     expansion and development of women's opportunities. . . . Tom 
     is and has been a steadfast and enthusiastic advocate for 
     women. In a local context in which there is tremendous social 
     pressure to gloss over gender issues, he has spoken out 
     repeatedly in support of fairness and justice. His support 
     has been constant and resolute, and his words are founded on 
     deeds of practical service.

  As a member of a commission overseeing a review of title IX's 
application, Tom recommended some changes. He is the kind of person to 
take such a role seriously; I am sure he did not consider it sufficient 
to fill a chair and not bring his considerable judgment, insight, and 
experience to bear in a constructive way.
  In some respects, however, Tom's recommendations are beside the 
point. As the many lawyers who now serve here in the Senate, lawyers 
wear many different hats over the course of their careers.
  When Stephen Breyer, for example, was chief counsel to my friend, the 
Senator from Massachusetts, believe me, we did not always see eye to 
eye on issues. But when he was nominated to the U.S. Court of Appeals 
and later to the Supreme Court, I was confident that he would be able 
to put politics aside, apply the law to the facts, and make fair and 
objective judgments.
  I hope there is no partisan double-standard at work here. Tom 
Griffith is also a fair, reasonable, and accomplished lawyer who has 
served us well here in the Senate and who will properly move into a 
judicial role. There is no justification for treating him differently 
because he happens to be the nominee of a Republican President.
  Now let's address Tom's supposedly radical policy views. The Office 
of Civil Rights at the Department of Education uses a three prong test 
to determine an educational institution's adherence to title IX. That 
test requires that an institution demonstrate one of the following: 
that the male to female ratio of athletes is substantially 
proportionate to the male to female ratio of student enrollment; that 
the institution has a continuing practice of program expansion for 
members of the under-represented gender; or that the institution is 
fully and effectively accommodating the athletic interests and 
abilities of the under represented gender.
  The first prong, the substantial proportionality test, has been 
designated by the Office of Civil Rights as a safe harbor. If an 
institution meets the requirements of a numeric formula, the university 
can avoid liability under title IX. The commission found that many 
institutions have transformed substantial proportionality into strict 
proportionality.
  The problem represented by this legalese is clear. This automatic 
adherence to a numeric formula means that a quota system has been 
established. Regardless of the number of young women interested in 
collegiate sports, colleges and universities must offer equal numbers 
of athletic slots.
  This is a radical revision of title IX's intention, which was to 
provide equal opportunity for participation in college sports, not 
equal results.
  The perverse result of shifting from equal opportunity to equal 
results has been documented on numerous occasions. It has required 
closing down men's sports teams in swimming, wrestling, gymnastics, and 
baseball. In 1999, for example, Providence College cut its 78-year-old 
baseball program to bring it within the proportionality requirement.
  In 1996, California State University at Bakersfield's wrestling 
program, a two-time PAC 10 champion, was eliminated to conform to the 
proportionality requirement. A General Accounting Office study found 
that from 1985-86 to 1996-97, no less than 21,000 male athletic spots 
disappeared, a 12-percent drop overall.
  Carol Zaleski, the former president and executive director of USA 
Swimming, had this to say:

       The unfortunate truth is that Title IX has evolved into 
     something never intended. The act was intended to expand 
     opportunity. The interpretation by the Office of Civil Rights 
     and the evolved enforcement has turned into a quota system. 
     Title IX is a good law with bad interpretation.

  Tom Griffith argued that while such rigid numerical quotas may be 
easy to administer, they fail actually to provide women with more 
athletic opportunities and that using this quota went beyond the powers 
Congress had allocated to the Department of Education.
  Tom has hardly been the only individual opposed to this quota 
approach. Our former colleague, Senator Birch Bayh of Indiana, said:

       The word quota does not appear [in Title IX]. . . . What we 
     were really looking for was equal opportunity for young women 
     and for girls in the educational system.

  Despite divergent views over the best application of the law, Tom 
Griffith wholeheartedly joined the recommendations of the commission to 
strengthen title IX and ensure that the test did not simply become a 
quota. Specifically, he joined recommendations calling for clearer 
guidelines for implementation of title IX and a method of 
``demonstrating compliance with Title IX's participation requirement 
that treats each part of the [three-part] test equally.''
  The question here is not whether Tom Griffith agrees with a 
particular policy evaluation. The real question is whether he supports 
women's rights and is committed to equal opportunity. The answer to 
that is a resounding answer is yes.
  Three Associate Deans at Brigham Young University Law--Constance 
Lundberg, Katherine Lund and Mary Hoagland--wrote to me and had this to 
say about Tom Griffith:

       In specific instances of which we have personal knowledge, 
     [Mr. Griffith] has fought for the promotion and recognition 
     of women, including ethnic minorities. His support has been 
     vigorous even when faced with substantial administrative 
     roadblocks. . . . In our experience, some men in similar 
     roles are not comfortable working with women as colleagues. 
     Tom, on the other hand, seeks out and respects women's 
     opinions. Indeed, if every person in university 
     administration were as evenhanded on gender issues as Tom, 
     Title IX and other ameliorative measures would be moot.

  In both of these areas of criticism--whether he engaged in the 
unauthorized practice of law and whether he supports equal opportunity 
for women--the pattern is the same. The allegations bear no 
relationship whatsoever to the facts, and those who know Tom Griffith 
best and have worked with him most strongly support his nomination to 
the U.S. Court of Appeals.
  I do think that this nominee has been treated badly, and I hope 
Senators will do the right thing and allow him to take this very 
important position. He will be a consensus builder and will work to 
make sure the law is implemented as the law was intended to be.
  At one time, when another person was being nominated for this 
position, I had those in the minority say: You ought to nominate 
Griffith. Some of the chief staff people said: Why not nominate Tom 
Griffith? These senior staff members said that Tom would be a slam dunk 
because everybody knows how great he is and what a good person he is.
  Well, I fought to get him nominated all the way to the White House 
itself. Almost immediately after he was nominated, we instead hear some 
of these

[[Page 12337]]

ridiculous arguments that, if not frivolous, certainly off the mark. 
What is important is we have a man of integrity, ability, and capacity 
who could fulfill this position in a way that might bring other people 
together. We all know it because we have seen him for four solid years 
right here in the Senate doing the Senate's business.
  I appreciate my colleagues on the other side, and especially those 
who are willing to vote for Tom Griffith. I think he deserves their 
vote. He deserves the vote of all of us, and I hope everybody in this 
body will give him a fair vote today.
  Mr. FEINGOLD. Mr. President, I will vote no on the nomination of 
Thomas Griffith to be a Judge on the D.C. Circuit Court of Appeals.
  The D.C. Circuit is widely regarded as the most important Federal 
circuit. It has jurisdiction over the actions of most Federal agencies. 
Many of the highest profile cases that have been decided in recent 
years by the Supreme Court concerning regulation of economic activity 
by federal agencies in areas such as the environment, health and safety 
regulation, and labor law, went first to the D.C. Circuit. In the area 
of administrative law and the interpretation of the major regulatory 
statutes such as the Clean Air Act, the Clean Water Act, the 
Occupational Safety and Health Act, and the National Labor Relations 
Act, the D.C. Circuit is often the last word, as the Supreme Court 
reviews only a tiny minority of circuit court decisions.
  After the confirmation of Judge Janice Rogers Brown last week, there 
are 6 judges on the D.C. Circuit who were appointed by Republican 
Presidents, and four by Democrats, and there are two vacancies. 
President Clinton, of course, made two nominations that were never 
acted upon by the Senate Judiciary Committee. In one case, the 
committee held a hearing but never scheduled a vote on attorney Alan 
Snyder, and in another case, Clinton nominee and now Harvard Law School 
Dean Elena Kagan wasn't even given the courtesy of a hearing.
  I am disappointed that the Bush administration has not been willing 
to seek a compromise on judicial nominees, and on this circuit in 
particular. At the beginning of President Bush's first term, there were 
enough vacancies to accommodate the two nominations by President 
Clinton who were treated so badly in the 106th Congress and allow 
President Bush to nominate additional judges to the circuit. The 
administration squandered an opportunity to change the tone and repair 
some of the damage done to the nomination process by previous 
Congresses.
  In light of this history, and the importance of this circuit, I 
believe it is my duty to give this nomination very close scrutiny. 
After reviewing Mr. Griffith's record and his testimony at two 
different Judiciary Committee hearings, I do not believe he should be 
confirmed to a lifetime appointment to this important court. Let me 
take a few minutes to outline the concerns that have caused me to reach 
this conclusion.
  Mr. Griffith's adherence to professional rules of conduct and State 
laws regarding bar membership has been less than scrupulous. In the 
District of Columbia, Mr. Griffith twice was administratively suspended 
for failure to pay his bar dues, one time for over 3 years. During that 
time, Mr. Griffith continued to practice law in the District and then 
in Utah. This might not be all that troubling if he had later been 
honest about the administrative suspensions he received for failure to 
pay his dues. Instead, Mr. Griffith failed to note those suspensions in 
answering two separate questions on his Utah bar application in 
November 2003.
  First, he answered ``no'' when asked if he had ``ever been disbarred, 
suspended, censured, sanctioned, disciplined, or otherwise reprimanded 
or disqualified, whether publicly or privately, as an attorney.'' At 
his hearing before the Judiciary Committee, Mr. Griffith claimed that 
he interpreted the question as referring only to disciplinary 
suspensions, and that he considered his suspension from the D.C. bar to 
be administrative. Given the clear language of the question, and the 
fact that the application gives an applicant the opportunity to explain 
a yes answer, Mr. Griffith's no response is cause for concern.
  In addition, Mr. Griffith answered yes when asked whether he had 
``ever given legal advice and/or held himself out as an attorney, 
lawyer, or legal counselor in the state of Utah.'' He stated:

       Since August 2000, I have served as Assistant to the 
     President and General Counsel at [BYU]. When called up to act 
     in my capacity as an attorney, I have done so as a member of 
     the bar of the District of Columbia.

  At the time he answered this question in 2003, Mr. Griffith certainly 
was aware that his license in D.C. had been suspended from November 
1998 to November 2001.
  Even more disturbingly, Mr. Griffith has practiced law in Utah 
without a Utah law license, and still does so to this day. Utah law 
does not provide that in-house counsel do not need to obtain a Utah law 
license. Yet Mr. Griffith failed to seek guidance from the Utah bar for 
almost three years on what he could and could not do without a Utah law 
license when he began working for BYU. Instead, according to this 
testimony, Mr. Griffith relied on his own professional experience and 
discussions with other in-house counsel in Utah. None of these people 
told him such an exception existed, yet he did not make inquiries to 
the bar until 2003. In 2003, Mr. Griffith received a letter from 
Katherine Fox, general counsel to the Utah bar, which indicated that he 
should limit himself to work that would not constitute the practice of 
law, and if he had to practice law, he should do so only in close 
association with members of the Utah bar. She also advised him to sit 
for the bar exam as soon as possible, and warned him that lawyers who 
have practiced in the state without a Utah license have later had 
difficultly obtaining such a license.
  Since he received that letter, Mr. Griffith has had four 
opportunities to sit for the Utah bar, but has instead insisted that he 
may practice law in Utah without a law license so long as he works in 
close association with members of the Utah bar. He made it abundantly 
clear at his second hearing that he does not intend to sit for the Utah 
bar exam. I suppose that since he is now about to be confirmed to a 
D.C. Circuit seat for life, he won't have to. But his attitude toward a 
basic responsibility of every practicing lawyer was disturbing.
  In response to these concerns, Mr. Griffith stated at his hearing 
that from the very beginning of his work as general counsel at BYU he 
has worked in close association with attorneys in his office who were 
licensed to practice in Utah. When I questioned him about his adherence 
to this close association requirement during his time in Utah, I was 
troubled by what I learned. Although Mr. Griffith insists that he has 
always worked in close association with members of the Utah bar when 
dispensing legal advice, he can provide no documentation of that 
practice whatsoever. It is not even clear how Mr. Griffith interprets 
the close association requirement. He testified, for example, that he 
does not require a licensed member of the Utah bar to be present on 
phone calls where he dispensed legal advice.
  Mr. Griffith's failure to document his close association with other 
attorneys is disturbing and revealing, in light of the letter from 
Katherine Fox, which warned him about the consequences that practicing 
law without a license might have on his eventual application to the 
bar. It also makes it even more difficult to believe that when he began 
working for BYU he was aware of the issue and was taking steps to 
ensure he involved members of the Utah bar in activities that would be 
considered giving legal advice.
  Mr. Griffith did submit several letters written beginning last summer 
from current and former officers of the Utah bar, to support his 
position that he has not violated bar rules so long as he works in 
close association with members of the Utah bar. These letters were 
written, however, long after Mr. Griffith approached the bar about a 
general counsel exception, and long after he received notice from Ms. 
Fox

[[Page 12338]]

of the Utah bar's position on it. Furthermore, these letters reiterate 
that there is no general counsel exception to the requirement that a 
lawyer practicing law in Utah must be a member of the Utah bar.
  Mr. Griffith's entire approach to the issue of his Utah bar 
membership has been to suggest that he knew all along what he was doing 
and took care to avoid any improper conduct. But a prudent and careful 
person, aware of and being careful to abide by restrictions on his 
activities, would have documented his actions. It seems clear to me 
that much of Mr. Griffith's argument is simply a post hoc 
rationalization. He has chosen to stick to his story and try and 
convince the Senate that he was fully aware of the Utah license issue 
from the beginning and acted at all times in accordance with part of 
the advice he received only in 2003. I find Mr. Griffith's explanations 
not credible and disdainful of his professional obligations. This is 
not the kind of conduct that the public has a right to expect from 
someone who will sit on the second most important court in the land.
  Mr. President, I am not predisposed to vote against judicial 
nominees. In fact, I have voted for over 90 percent of this President's 
choices. Mr. Griffith served the Senate with distinction, and his 
foremost supporter is the former chairman of the Judiciary Committee, 
for whom I have great regard. But we have an affirmative duty to place 
on the bench judges who adhere to the ethical standards of the legal 
profession. I am not satisfied that Mr. Griffith meets that test, and I 
will vote no.
  The PRESIDING OFFICER. The question is, Will the Senate advise and 
consent to the nomination of Thomas B. Griffith, of Utah, to be United 
States Circuit Judge for the District of Columbia? The yeas and nays 
have been ordered. The clerk will call the roll.
  The assistant journal clerk called the roll.
  Mr. McCONNELL. The following Senators were necessarily absent: the 
Senator from Pennsylvania (Mr. Santorum), and the Senator from 
Pennsylvania, (Mr. Specter).
  Mr. DURBIN. I announce that the Senator from Vermont (Mr. Jeffords) 
is necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 73, nays 24, as follows:

                      [Rollcall Vote No. 136 Ex.]

                                YEAS--73

     Alexander
     Allard
     Allen
     Baucus
     Bennett
     Biden
     Bingaman
     Bond
     Brownback
     Bunning
     Burns
     Burr
     Carper
     Chafee
     Chambliss
     Coburn
     Cochran
     Coleman
     Collins
     Conrad
     Cornyn
     Craig
     Crapo
     DeMint
     DeWine
     Dodd
     Dole
     Domenici
     Dorgan
     Durbin
     Ensign
     Enzi
     Feinstein
     Frist
     Graham
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Inouye
     Isakson
     Kohl
     Kyl
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     Martinez
     McCain
     McConnell
     Murkowski
     Nelson (FL)
     Nelson (NE)
     Obama
     Pryor
     Reid
     Roberts
     Schumer
     Sessions
     Shelby
     Smith
     Snowe
     Stevens
     Sununu
     Talent
     Thomas
     Thune
     Vitter
     Voinovich
     Warner

                                NAYS--24

     Akaka
     Bayh
     Boxer
     Byrd
     Cantwell
     Clinton
     Corzine
     Dayton
     Feingold
     Harkin
     Johnson
     Kennedy
     Kerry
     Landrieu
     Lautenberg
     Leahy
     Mikulski
     Murray
     Reed
     Rockefeller
     Salazar
     Sarbanes
     Stabenow
     Wyden

                             NOT VOTING--3

     Jeffords
     Santorum
     Specter
  The nomination was confirmed.
  The PRESIDING OFFICER. The President will be notified of the Senate's 
action.

                          ____________________