Griffith reportedly scheduled for confirmation hearing on Tuesday, November 16; PFAW letter in opposition cites flouting of law, extreme legal stance on Title IX

Senate Judiciary Committee Orrin Hatch appears to be making a last-ditch effort to give a powerful lifetime judgeship to a friend whose record makes him unfit for the job. Thomas Griffith, General Counsel of Brigham Young University, received the lowest possible passing grade from the American Bar Association and has been opposed by Utah’s largest newspaper. Griffith has been nominated by President Bush to the U.S. Court of Appeals for the D.C. Circuit, widely considered the second most important court in the United States after the Supreme Court.

“A lawyer who has repeatedly failed to follow basic rules of the legal profession, and has arguably violated state law in the process, does not belong on the federal appeals court,” said People For the American Way President Ralph G. Neas. “Neither does a lawyer who has staked out radical positions against remedies for discrimination.”

“Unfortunately, this nomination is emblematic of Senator Hatch’s record of abusing the power of his chairmanship,” said Neas, “and of the Bush administration’s lack of concern for the rule of law when it stands in the way of something the White House wants.”

Hatch has scheduled a hearing, reportedly for Griffith, on Tuesday, November 16. In a letter to members of the Judiciary Committee, Neas spelled out People For the American Way’s objections to Griffith’s confirmation, based on his record, including the fact that he apparently has been engaged in the unauthorized practice of law in Utah for the past four years.

Extreme Legal Positions on Title IX

Griffith was a member of the Commission on Opportunity in Athletics, created in 2002 by Secretary of Education Rod Paige to consider potential revisions to Title IX, which since 1972 has been instrumental in expanding opportunities for women and girls in education, particularly in sports. Griffith not only supported Commission recommendations that would have reduced athletic and scholarship opportunities for women and girls, but he also made his own more extreme recommendation, one that was contrary to existing law and was rejected 11-4 by the Commission.

Griffith proposed elimination of the proportionality test, which declares a school in compliance with Title IX if it can demonstrate that the athletic opportunities for males and females are in substantial proportion to each gender’s representation in the student body of the school. Griffith said of the test, “It is illegal, it is unfair, and it is wrong.” When other commissioners pointed out that each of the eight federal appeals courts that had considered the proportionality test had upheld it, he responded that the courts “were wrong.” He later described his unsuccessful effort to abolish the proportionality rule “radical” and noted that it “went down in flames.”

The PFAW letter notes that Griffith’s position demonstrates a lack of commitment to eradicating ongoing gender discrimination. Moreover, Griffith’s being “unalterably opposed” to what he called “numeric formulas” to evaluate compliance raises significant concerns about opposition to methods used to document and remedy discrimination in other areas, including the use of statistical evidence to prove that facially neutral policies have had a disparate impact on women or racial or ethnic minorities.

Unauthorized practice of law in the District of Columbia and Utah

PFAW’s letter notes that Griffith practiced law in the District of Columbia for three years during which his bar membership had been suspended for his failure to pay mandatory dues, and has for the past four years apparently practiced law in the state of Utah without a license. Although Griffith maintains that his problem in the District of Columbia was the result of clerical error, published reports indicate that he cannot make such an excuse for his actions in Utah.

In 2000, Griffith became General Counsel of Brigham Young University, where, among other things, he oversees all litigation involving the university, but he is still not a member of the Utah Bar. It is illegal under Utah law to practice law without a license. This apparently was no oversight. Because Griffith’s suspension in DC made him ineligible for “reciprocal” admission to practice law in Utah, the Utah Bar reportedly sent Griffith a letter recommending that he take the Utah Bar exam, “and work closely with a Utah bar member while his license application was pending.” In four years, Griffith has never bothered to take the exam, which is given twice every year.

Both the New York Times and the Salt Lake Tribune — one of the leading newspapers in Mr. Griffith’s home state — have published editorials stating that in light of Mr. Griffith’s failure to abide by applicable Bar licensing rules, particularly in Utah, where all public reports indicate that the failure clearly has been knowing, he should not be confirmed for the federal bench. A columnist for a Colorado paper wrote that Griffith “apparently thinks that rules don’t apply to him.”

Unfit for a Powerful Lifetime Seat on the D.C. Circuit Court

“Thomas Griffith’s apparent willingness to ignore the rules and flout the law make him unfit to be a federal judge,” said Neas, who added that Griffiith is an especially inappropriate nominee for the D.C. Circuit, which has special jurisdiction over federal regulatory agencies and their rulemaking procedures.