Appeals Court Nominee Thomas B. Griffith
is a Poor Choice
March 31, 2005
By Gene C. Gerard
Last year, President Bush nominated Thomas B. Griffith to fill
a vacancy on the U.S. Court of Appeals. Senate Democrats prevented
a vote on his nomination. Consequently, President Bush re-nominated
Mr. Griffith in February. The Senate Judiciary Committee held a
hearing on his nomination on March 8, and is expected to vote on
his confirmation in April.
Senate Democrats were correct in not furthering his previous nomination.
Mr. Griffith has a strong record of opposition to women's rights,
as regards public education. Additionally, he practiced law, both
in the District of Columbia and in Utah, although he was not authorized
to do so. Equally troubling, he gave false answers while under oath
regarding his practice of the law.
During President Bush's first term, Mr. Griffith was appointed
to serve on the Commission on Opportunity in Athletics. The Commission
was created to determine if current standards regarding the application
of Title IX of the Education Amendments on 1972 should be revised
for sports. The Title IX provision was intended to expand opportunities
for girls and women in education, especially athletics. Indeed,
it has been successful in doing so.
Mr. Griffith made a recommendation so extreme it was overwhelmingly
rejected by the Commission. He proposed eliminating a test that
has long been used to verify compliance with Title IX. The National
Coalition for Women and Girls in Education noted that the recommendation
"... would have devastated current Title IX athletics policies
and reduced the athletic opportunities and scholarship dollars to
which woman and girls are legally entitled."
Under the test, a school is in compliance with Title IX if it
demonstrates that the athletic opportunities for males and females
is substantially proportionate to each sex's representation in the
student body. Mr. Griffith recommended abolishing this verification,
saying, "... it is unfair, and it is wrong." In doing
do, he rejected the opinion of all eight federal appeals courts,
who have upheld the constitutionality of the test. When other Commission
members pointed this out, Mr. Griffith replied that the courts "were
However, the Department of Education later stated the "test
... has worked well" and "is thus a valid, alternative
way for schools to comply with Title IX." Mr. Griffith's position
would significantly undermine legal and educational principals that
have protected girls and women from discrimination. His legal viewpoint
is clearly at odds with the nation's commitment to ending discrimination
based on sex. And his position causes serious concerns about whether
he would support civil rights laws in defense of the rights of women
Also, Mr. Griffith practiced law in the District of Columbia between
1996 and 2000, despite the fact that he was suspended twice from
the District of Columbia Bar, and as such was unauthorized to do
so. His membership in the District of Columbia Bar was suspended
in January, 1998, and again from November, 1998 to November, 2001.
According to Mr. Griffith, this was "due to a clerical oversight."
Mr. Griffith has said that his office accidentally failed to renew
his participation in the Bar. The Bar's policy is to mail out an
invoice for dues, with two follow-up notices when the dues are not
The District of Columbia Court of Appeals requires that an attorney
engaged in the practice of law in the District be "enrolled as an
active member of the District of Columbia Bar." During his suspension,
he served as the legal counsel to Senate Republicans and was a partner
at a law firm. As such, he actively worked as an attorney after
being suspended from the practice of law.
In addition, from 2000 to 2004 Mr. Griffith served as the General
Legal Counsel of Brigham Young University. But he was never authorized
to practice law in Utah, either. Under Utah law, a person cannot
practice law unless they have been admitted to the state Bar. Mr.
Griffith could have received admittance to the Utah Bar if he was
a member in good standing with another state Bar. Of course, he
was not. His other option was to take the Utah Bar exam, but he
As the General Counsel of BYU, Mr. Griffith was engaged in the
practice of law. According to BYU itself, the General Counsel is
responsible for "advising the Administration on all legal matters
pertaining to the University." In response to a questionnaire from
the Senate Judiciary Committee, when asked what the most recent
position in his legal career was, Mr. Griffith responded "2000-present:
Higher education law." When questioned by the Committee as to why
he didn't join the Utah Bar, he said he didn't believe as General
Counsel for BYU this was necessary.
However, in 2003 the General Counsel of the Utah Bar sent a letter
to Mr. Griffith which stated, "Utah does not have and has never
had" a " general counsel rule exception." The letter further advised
him to take the state Bar exam. Although he had eight opportunities
to take the exam, Mr. Griffith never did. Presumably, he felt that
he was above the law, or was concerned that he was incapable of
passing it. However, he did submit an application, under oath, to
take the exam.
The application asked, "Have you ever been disbarred, suspended,
censured, sanctioned, disciplined or otherwise reprimanded or disqualified,
whether publicly or privately, as an attorney?" He had the opportunity
to answer "Yes" and offer an explanation. Instead, he answered "No."
Of course, he knew that he had been suspended from the District
of Columbia Bar twice. In doing so, he gave a false answer, under
oath, to the Utah Bar.
The federal appeals courts play an extremely important role in
the judicial system. While the U.S. Supreme Court only hears about
80 cases annually, the appeals courts adjudicate about 30,000 cases
yearly. The judges who hold lifetime appointments to these courts
have considerable ability to effect enforcement of the nation's
laws. We should expect those judges to have strong professional
ethics and a high regard for the law. Sadly, Mr. Griffith has neither.