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Thomas Griffith may benefit by being nobody’s first choice. While Senate Democrats have hollered mightily about Griffith’s lapses in bar membership, they may not be inclined to flex their precious political muscle to block his move to the U.S. Court of Appeals for the D.C. Circuit, as they did seven times with Miguel Estrada, the nominee who preceded him. And because Republicans would rather rally around a prominent conservative ideologue — someone like Estrada — Griffith’s nomination for a seat on the nation’s pre-eminent appeals court hasn’t drawn the vigorous support of the hard-core right either. Griffith is slated to go before the Senate Judiciary Committee this week, one of the first circuit court judges renominated by the White House to be granted a hearing — a sign that the GOP brain trust thinks he could make it through without too much of a dogfight. If that happens, it would be a testament more to Griffith’s usefulness in the Democrats’ unfolding nomination strategy than to the merits of their arguments against him. Democrats fault Griffith for not joining the Utah bar as general counsel of Brigham Young University and for his controversial statements about Title IX, the federal law that mandates equal treatment for women in sports. Griffith is one of 12 circuit picks renominated by President George W. Bush last month, seven of whom had been filibustered. And, say Democrats, absent any deal-making with the White House, there’s no reason to think the same judges won’t be blocked again. With 60 votes needed to invoke cloture, and only 55 Senate Republicans, it takes at least five Democrats to side with the GOP and cut off debate. But Griffith wasn’t one of those seven blocked nominees. He had one short, barely noticed confirmation hearing last November. In another sign of his lack of radioactivity, only one member of the Judiciary Committee showed up. Griffith wasn’t voted out of committee, which means Democrats have not committed themselves with a recorded vote, either in committee or in the full Senate. And that makes Griffith’s nomination that much more fluid. If Democrats forgo a filibuster on Griffith, they will arguably be in a stronger position to block the two other D.C. Circuit candidates renominated by Bush — California Supreme Court Justice Janice Rogers Brown and White House staff secretary Brett Kavanaugh, both considered far more fiery, ideological conservatives than Griffith. There’s also the question of whom Bush might send up to replace Griffith should his nomination be scuttled. “Depending on who comes before or after him, Griffith might look better or worse,” says one senior Democratic Senate aide. STEALTH LOBBYING From the start, Griffith’s nomination — to a court with a national reach that has a history of attracting powerful intellects with long judicial histories — has aroused little passion among his supporters or detractors. But since reports surfaced last year of Griffith’s failure to maintain his law license in the District while he was Senate legal counsel and then a partner at Wiley Rein & Fielding and his decision to bypass the Utah bar while working as general counsel at Brigham Young, several dozen supporters, many of them Democrats, have rallied around him. Williams & Connolly partners Steven Umin; Gregory Craig, former President Bill Clinton’s lawyer during impeachment; and David Kendall, Clinton’s personal lawyer, are working the Hill on Griffith’s behalf, as are former D.C. Circuit Judge Abner Mikva and former Rep. James Slattery (D-Kan.). “Those of us who know Tom Griffith, we have contacted some of our Democratic friends,” says Slattery, now a partner at Griffith’s former firm, Wiley Rein. “From my perspective, there may have been some clerical errors made. Anybody would rather it not be there. But does this person have the legal skills and temperament to be on the federal bench? The answer is an unqualified yes.” (Griffith’s backers say corporate counsel in Utah often do not join the Utah bar.) At the same time, conspicuously absent from the debate are Washington’s front-line conservatives like C. Boyden Gray and prominent members of the Federalist Society, of which Griffith has long been a member. “He’s not Miguel Estrada, and there are many other Miguel Estradas out there,” notes a senior Republican Senate staffer. Estrada, the former assistant solicitor general and current partner in the D.C. office of Gibson, Dunn & Crutcher, withdrew his name after a series of successful filibusters. “It’s not like there’s opposition. There’s just a lack of enthusiasm.” What Griffith does have is a large reservoir of good will among senators on both sides of the aisle, cultivated during Griffith’s four-year tenure as the Senate legal counsel, a period that included the impeachment of Clinton. There’s also an intensely personal dimension to the debate. Utah’s senior Republican senator, Orrin Hatch, is putting his personal prestige behind Griffith’s nomination, in effect telling his Democratic colleagues that a vote against Griffith would be a personal affront. Says a Republican Judiciary Committee aide: “Griffith is in this crazy limbo — in that nobody really wants him and nobody’s really fighting for him except Hatch.” Hatch chaired a hastily assembled hearing on Nov. 16, at the end of the 108th Congress, in the hope of moving Griffith to the Senate floor and having his nomination approved. “Hatch was working each of these guys,” says the aide, speaking of Democratic Sens. Edward Kennedy, Charles Schumer, Richard Durbin, and Harry Reid. “He needed all four to sign off.” At one point, Kennedy, Hatch, and Hatch’s judiciary counsel, Bruce Artim, were on a Senate elevator together, says the aide. “They kicked Artim off and pressed the stop button and talked. Hatch was leaning hard. . . . But he came on too strong.” QUOTA QUESTIONS While the flap over Griffith’s bar membership has dominated the discussion over his nomination, other potential roadblocks exist, ones that relate directly to how Griffith might fare as a federal appeals judge. A key proposal Griffith made in 2003 as a member of the President’s Commission on Opportunity in Athletics has drawn considerable fire from Democrats who say that it could erode enforcement of civil rights laws. The commission was formed in 2002 to address Title IX of the Education Amendments of 1972, the landmark civil rights law intended to end gender discrimination in education, including athletic programs. Griffith, a University of Virginia law graduate, says he is a strong supporter of Title IX. Nevertheless, he recommended that the commission do away with numeric formulas as one of the three legal tests universities use to prove compliance with Title IX. That test measures whether the ratio of women to men playing sports is equal to the school population’s overall gender ratio. Griffith’s idea, advocated by men’s sports teams across the country who say the use of the proportionality test has resulted in decreased funding for their programs, drew questions from fellow commission members who wanted to know how Griffith’s ideas would weigh against the eight federal courts that have upheld the legality of the test. “The courts were wrong,” Griffith said in response to commission members’ questions, according to a transcript of the commission meeting on Jan. 30, 2003. Griffith argued that, at some universities, the test resulted in a quota system and that using numeric measures is a “fundamentally unfair way of going about remedying discrimination.” Some Senate Democrats say that notion raises red flags. “It is a hostility to understanding numbers as one component of civil rights compliance,” says one Democratic Senate staffer familiar with Title IX, “that could seep over into employment or other types of civil rights issues.” The staffer adds that the discrimination cases Griffith would be most likely to hear on the D.C. Circuit would involve disputes over allegedly discriminatory patterns, such as lending or employment issues, that hinge on statistical evidence. Last year, the D.C. Circuit rejected arguments that Title IX requires quotas for female athletes and results in discrimination against men. In December, the College Sports Council filed suit in D.C. federal court alleging that a government study hid the negative effects of Title IX on men’s athletics — a case that eventually could land before Griffith. In his written responses to the Senate late last year, Griffith assured Kennedy that he understood that if confirmed, he would be “bound by Supreme Court and D.C. Circuit precedent. . . . I would not allow my personal preferences to influence my duty as a judge.” Griffith could further tip what is now a 5-4 split in favor of conservative judges on the court, says Mark Levy, a partner at Kilpatrick Stockton in the District whose practice focuses on appellate litigation. “The court is closely divided using the usual labels of conservative and liberal,” Levy says, adding that these ideological delineations are important in many of the court’s most controversial cases, but to a lesser extent in its day-to-day diet of intricate regulatory cases. “There are voluminous records, very technical issues of the law, and oftentimes a lot of parties in one case,” Levy says. “It’s a lot to master.” At Wiley Rein, Griffith represented insurance companies and financial services corporations, including Ernst & Young. In Senate records, Griffith points to Fred Fielding, a former Republican White House lawyer and one of the firm’s founders, as his mentor. While Griffith had little courtroom experience, Fielding says that Griffith’s practice at the firm was diverse, ranging from insurance coverage cases to pro bono work. “He exudes integrity and fairness,” Fielding says. CAPITAL CONNECTIONS A converted Mormon and the father of six children, Griffith befriended other conservative religious lawyers in Washington after joining Wiley Rein in 1989. Among them was Michael Farris, a home school advocate, constitutional lawyer, and the 1993 candidate for lieutenant governor in Virginia. Farris, a Baptist minister, says that he and Griffith shared a religious conservatism and respected each other’s beliefs. The friendship proved useful for Griffith when, as part of a team of lawyers at Wiley Rein, he represented Virginia death row inmate Joseph Payne. Wiley Rein associates had taken Payne’s case in 1987. Griffith came on board in 1990. Payne was serving a life term for the 1981 slaying of a woman in suburban D.C. when he was convicted and sentenced to death for the 1985 murder of a fellow inmate based on what proved to be suspect testimony. After exhausting all state and federal appeals, the lawyers asked Republican Gov. George Allen, a death penalty proponent, to commute Payne’s death sentence. As the principal attorney responsible for Payne’s “pardon strategy,” Griffith made use of his Republican contacts, says Paul Khoury, a Wiley Rein partner and lead counsel for Payne. Griffith asked Farris, who had been Allen’s running mate, to write a letter to Allen on Payne’s behalf. “We ended up getting the support of a lot of pro-death penalty conservative politicians,” Khoury says. The efforts paid off. Three hours before Payne was to be executed in November 1996, Allen commuted Payne’s sentence of death to life without parole. Both Khoury and Farris say that Griffith’s willingness to take on the case demonstrates his fair-mindedness. “He and I don’t have similar politics,” Khoury says. “But he’s a man of integrity in the way that I view integrity.” Farris adds: “He and I are both religious conservatives, and here we are helping a guy on a death penalty case, something people think of more for ACLU types.” CHURCH AND STATE Colleagues at Wiley Rein, where Griffith returned in 1999 after working for the Senate, weren’t surprised when he took the general counsel job in 2000 at Brigham Young, his alma mater. Mormons employed by the school have to be “temple worthy,” which includes proving payment of church tithes, says H. Reese Hansen, the former dean of the university’s law school and head of the search committee that hired Griffith. “There were superb people available to us, and Tom was at the top of our list,” Hansen says of Griffith, who is a stake president in Utah, a church officer who presides over several congregations. Described by friends as not one to wear his religious beliefs on his sleeve, Griffith linked up with one of the most conservative elements in the Church of the Latter Day Saints when he became the university’s top legal adviser, says Kathleen Flake, a Mormon and former D.C. lawyer who teaches religious studies at Vanderbilt University. The school limits its acceptance of federal funding in an effort to shield its decisions from government interference; it has been censured by the American Association of University Professors for allegedly denying tenure to a female faculty member because of her feminist views. Flake says that “the fact that Griffith was hired at BYU is as indicative of his conservatism as anything. It’s not just about this man’s religion, it’s about his client list.” Still, she cautions, “Don’t expect him to be conservatively doctrinaire. His Republicanism would say more about regulatory issues than his Mormon Church affiliation.” Last fall, Griffith wrote an article in a BYU law school publication about the integration of faith in professional life. In it, he urged readers not to divide their professional and religious lives in “separate compartments,” adding, “Love God. Love your neighbor as yourself. These are the templates by which we should measure our professional conduct.” T.R. Goldman and Lily Henning can be contacted at [email protected] and [email protected], respectively.

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