[Congressional Record (Bound Edition), Volume 151 (2005), Part 9]
[Senate]
[Page 12376]
[From the U.S. Government Publishing Office, www.gpo.gov]




                   CONFIRMATION OF THOMAS B. GRIFFITH

  Mrs. MURRAY. Mr. President, next week we will celebrate the 33rd 
anniversary of title IX. For 33 years, title IX has opened doors for 
women and girls in all aspects of education. I can say without 
reservation that I would not be a U.S. Senator today without this 
critical law.
  Unfortunately, today the Senate confirmed a vehement opponent of 
title IX--Thomas Griffith--to the U.S. Court of Appeals for the 
District of Columbia Circuit. I voted against this nominee because of 
his record on title IX, the importance of the DC Circuit Court of 
Appeals to title IX and other civil rights laws, and his disregard for 
the rule of law in his own practice.
  In 2002, Mr. Griffith served on the Commission on Opportunity in 
Athletics to evaluate whether and how current standards governing title 
IX's application to athletics should be revised. After the Department 
of Education spent nearly $1 million on the Commission, the Bush 
administration made the determination to make no changes to title IX in 
athletics. However, as a member of the Commission, Mr. Griffith made 
clear his opposition and hostility towards the law and its enforcement.
  As a member of the Commission, Mr. Griffith proposed weakening the 
standard for meeting title IX's 25-year-old requirement of equality of 
opportunity in athletics for young women through the elimination of the 
``substantial proportionality'' test for compliance. This test, one of 
the three alternative ways to comply with title IX, allows schools to 
comply by offering athletic opportunities to male and female students 
that are in proportion to each gender's representation in the student 
body of the school.
  Mr. Griffith claimed this provision constitutes a quota in violation 
of title IX and the Constitution and asserted that ``[i]t is illegal, 
it is unfair, and it is wrong'' and even ``morally wrong.'' He made 
such extreme statements despite the decisions of no fewer than 6 
Federal appeals courts which have upheld the legality of the test. In 
fact, none has ruled to the contrary. And when this fact was pointed 
out to him, he did not respect the decisions of all the Federal courts 
that have heard such cases--he said that ``the courts got it wrong.'' 
Eliminating this test would clearly undercut title IX's effectiveness--
and the Commission agreed. It rejected the Griffith proposal by a 
lopsided vote of 11 to 4.
  During his confirmation process, Griffith tried to change his 
position on title IX. Mr. Griffith now claims that he only wanted to 
eliminate the proportionality test because some have ``misused'' or 
``misinterpreted'' the test. He now claims that the Commission 
recommendations regarding the proportionality test that he supported--
in addition to his own proposal to eliminate the test--were ``modest'' 
or ``moderate.'' If these claims were so moderate, why were they 
rejected entirely by the Secretary of Education?
  Mr. President, every Federal court of appeals that has considered 
this issue and every administration since 1979 have ruled that the 
three-part test is legally valid and does not impose quotas. Mr. 
Griffith's statements and actions put him in complete opposition to six 
Federal appeals courts. If that doesn't show that Mr. Griffith is out 
of the mainstream, I don't know what does.
  The DC Circuit Court of Appeals is an especially important court. I 
believe that we must be careful when confirming individuals to serve 
lifetime appointments on this court, the second most powerful Federal 
court in the land. This court has exclusive jurisdiction over a broad 
array of Federal regulations, including title IX, and is often the 
court of last resort in critical issues involving workers' rights, 
civil liberties, and environmental regulations. I am concerned that, 
given his prior record relating to title IX, Mr. Griffith may not be 
able to hear such cases with the impartiality required of a judge on 
one of our Nation's highest courts.
  Mr. Griffith's hostility to title IX and the importance of the DC 
Circuit are not the only problems with this nominee. He has, on more 
than one occasion, failed to comply with the basic standards and 
practices of his profession by not paying bar dues and failing to get a 
license. He does not meet the high standards we must apply to any 
nominee for a lifetime appointment to the second highest court in the 
land.
  The Senate has the constitutional duty to advise the President and 
decide whether to consent to his nominations to the Federal bench. I 
believe that this role is one of the Senate's greatest 
responsibilities. It is critical that Senators work with the President 
to find judicial nominees that meet the standards of fairness, even-
handedness and adherence to the law that we expect of judges in our 
communities.
  I believe the Senate has the duty to ensure each nominee has 
sufficient experience to sit in judgment of our fellow citizens, will 
be fair to all those who come before the court, will be even-handed in 
administering justice, and will protect the rights and liberties of all 
Americans. Unfortunately, Mr. Griffith's record shows his inability to 
serve in such a manner and, therefore, I opposed his nomination.

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