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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 wrong."

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 and minorities.

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 paid.

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 never did.

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.

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