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WASHINGTON — Moving at a rapid pace, the Senate Judiciary Committee on Tuesday morning heard testimony from Thomas Griffith, the third of a dozen controversial appeals court nominees sent to the Senate by President George W. Bush last month. Griffith, the general counsel of Brigham Young University and previously the Senate legal counsel during the Bill Clinton impeachment, is a well-known figure in the Senate and one whose nomination to the influential U.S. Court of Appeals for the D.C. Circuit should have been relatively uncomplicated. But Griffith, 50, was criticized by the left for several controversial statements decrying the use of quotas under Title IX, the federal law that mandates equal treatment for women in sports. He also came under attack for failing to pay his bar dues in the District of Columbia for three years and for never joining the Utah Bar when he moved to Provo to become Brigham Young’s general counsel. Griffith’s failure to pay his D.C. Bar dues was an oversight, he told the panel, only four of whose 18 members bothered to show up for the hearing. “I made a mistake,” he said. “Did you fail to pay those dues willingly?” asked committee Chairman Arlen Specter, R-Pa., rhetorically. “Were you trying to save money?” Griffith’s decision not to take the Utah Bar, however, proved more problematic. Ordinarily, he would have been allowed to waive into the Utah Bar. But since Griffith’s D.C. Bar membership had lapsed, this was not possible, and in order to join the Utah Bar, he had take the bar exam in that state. His failure to do so particularly irked Wisconsin Democrat Russell Feingold and the committee’s ranking Democrat, Sen. Patrick Leahy of Vermont, the only two Democrats at the hearing. Leahy called Griffith’s decision not to take the Utah Bar exam a “serious dereliction of duty.” “Your lack of taking the bar exam is a matter of concern to me,” Leahy told Griffith. “Even to a state court in Vermont, such a nomination would be rejected out of hand.” While conceding that there was no state statute that allowed a general counsel in Utah to forgo joining the Utah Bar, Griffith explained to the committee that he had been repeatedly told that as long as he “closely associated” with lawyers licensed in the state, he was not engaged in the unauthorized practice of law. A letter from five former presidents of the Utah Bar affirmed that viewpoint, noted Griffith’s chief Senate patron, Utah Republican and previous committee Chairman Orrin Hatch. Last year, Hatch held a hearing in the waning days of the 108th Congress in an unsuccessful effort to push Griffith’s nomination to the Senate floor for a vote. Asked by Leahy if he knew any other Utah general counsel who had also failed to join the state bar, Griffith replied, “I know of some, I’ve heard of others,” but didn’t provide any names. “Isn’t that kind of an activist interpretation?” Leahy responded, cracking a smile. Because the Judiciary Committee has two more Republicans than Democrats, Griffith’s nomination is expected to clear the committee as early as next week. But it is unclear whether Senate Democrats will decide to filibuster the nominee and, if they do, whether his supporters can muster the requisite 60 votes needed to cut off debate and bring Griffith’s nomination to an up or down majority vote. T.R. Goldman is a reporter with Legal Times, a Recorder affiliate based in Washington, D.C.

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