Thomas B. Griffith
Encyclopedia
Thomas Beall Griffith is a federal judge
on the United States Court of Appeals for the District of Columbia Circuit
. Before his appointment to the bench he was Senate Legal Counsel, the chief legal officer of the United States Senate. In November of 2011, Griffth was included on The New Republic's list of Washington's most powerful, least famous people.
(BYU) in 1978 and served on the Virginia Law Review at the University of Virginia School of Law
, where he received his J.D. in 1985. He worked in private legal practice in Charlotte, North Carolina
from 1985 to 1989, and then in Washington, D.C.
, until 1995. Griffith left private practice in 1995 to serve as Senate Legal Counsel, the chief legal officer of the United States Senate
. In that position he gave nonpartisan legal advice to both parties during President Clinton's impeachment trial
. After briefly returning to private practice from 1999 to 2000, Griffith became General Counsel of BYU.
first nominated Griffith to the D.C. Circuit on May 10, 2004, to fill a seat vacated by retired Judge Patricia M. Wald. His nomination replaced that of Miguel Estrada
, who withdrew his nomination after Democrats filibuster
ed him for over two years.
Controversy arose over Griffith’s nomination because his District of Columbia bar membership had lapsed in 1998 for failure to pay dues. Griffith was reportedly unaware of the problem at the time and as soon as he learned of it in 2001 paid the dues and was reinstated. After the Washington Post ran a story about the issue in June 2004, a number of prominent Democrats wrote letters supporting Griffith. Abner Mikva, former Democratic congressman and former Chief Judge of the D.C. Circuit, wrote that he had known Griffith in and out of government and had “never heard a whisper against his integrity or responsibility.” Seth Waxman, who had served as Solicitor General under President Bill Clinton, wrote that “for my own part I would stake most everything on [Griffith’s] word alone.” David Kendall and Lanny Breuer, two of President Clinton’s lawyers during the impeachment trial, also wrote letters supporting Griffith.
Some Democrats also objected that Griffith had practiced law for four years as General Counsel of Brigham Young University without obtaining a Utah law license. His defenders pointed out that it had been the longstanding position of the Utah bar—as explained in a letter to the Senate Judiciary Committee by five former Utah Bar Presidents—that in-house counsel in Utah do not need to be licensed in the state provided they associate closely with Utah bar members when giving legal advice. Griffith said he carefully followed this practice during his time at BYU.
The Senate failed to act on Griffith's nomination in 2004, and it lapsed. Bush resubmitted the nomination for the same seat on February 14, 2005.
On June 14, 2005, the Senate confirmed Griffith by a vote of 73-24. Twenty Democrats joined fifty-three Republicans in voting for Griffith’s confirmation. (Two Republicans and one Independent did not vote.) Democrats voting for confirmation included Barack Obama, Joe Biden, Minority Leader Harry Reid, and Minority Whip Dick Durbin. Despite earlier criticisms of Griffith, the Washington Post endorsed his nomination, noting that he was “widely respected by people in both parties” as a “sober lawyer with an open mind.” Griffith was the second of three Bush nominees to the D.C. Circuit confirmed by the Senate. He received his commission on June 29, 2005, and is currently the second-most junior active judge on the court.
. He served as student body president at the high school his senior year and later served a mission for the LDS Church in South Africa. He attended college at Brigham Young University and later became the General Counsel of BYU from 2000-2005, where he also served as President of the BYU 9th Stake. He previously served as Bishop of the Leesburg Virginia Ward.
Griffith is married to the former Susan Ann Stell. They have 6 children.
Davis v. Federal Election Commission, 501 F. Supp. 2d 22 (D.D.C. 2007): Writing for a three-judge panel, Griffith rejected a First Amendment challenge to the Bipartisan Campaign Reform Act’s “Millionaire’s Amendment,” which relaxed contribution limits for opponents of self-financed candidates. Acknowledging that the Amendment disadvantaged candidates who financed their own campaigns, Griffith upheld the law on the ground that this disadvantage was the result of candidates’ voluntary decisions to self-finance. The Supreme Court subsequently reversed 5–4, finding that the Amendment’s differing contribution limits for self-financed and non-self-financed candidates impermissibly burdened candidates’ First Amendment right to spend their own money on campaign speech. The four dissenting Justices called Griffith’s district court opinion “thorough and well-reasoned.”
Abigail Alliance for Better Access to Developmental Drugs v. von Eschenbach, 495 F.3d 695 (D.C. Cir. 2007): Writing for an en banc court, Griffith found that there is no constitutional right to experimental drugs and upheld the FDA’s policy of limiting access to such drugs as rationally related to the government’s interest in protecting patients from potentially unsafe drugs. Griffith’s opinion reversed an earlier 2–1 panel decision from which Griffith had dissented.
Kiyemba v. Obama (“Kiyemba II”), 561 F.3d 509 (D.C. Cir. 2009): Dissenting from the panel’s holding that a court cannot issue a writ of habeas corpus to prevent the transfer of a Guantanamo detainee to a country where the detainee claims he will be tortured or further detained, Griffith argued that the Suspension Clause entitles Guantanamo detainees to notice and an opportunity to challenge the lawfulness of proposed transfers. In a subsequent dissent from denial of en banc hearing on this same issue, Abdah v. Obama, 630 F.3d 1047 (D.C. Cir. 2011), Griffith further canvassed the history of habeas corpus to argue that the writ has long protected a prisoner’s right to challenge a transfer to a location where the writ does not run. Griffith emphasized that Guantanamo detainees were entitled to notice of transfers “only because Boumediene [v. Bush] extended habeas corpus to Guantanamo.”
El-Shifa Pharmaceutical Industries Co. v. United States, 607 F.3d 836 (D.C. Cir. 2010): In an opinion for an en banc court, Griffith affirmed the dismissal of a defamation suit against the United States by owners of a Sudanese pharmaceutical plant. The plant owners alleged that following a U.S. missile attack against the plant in 1998, Clinton administration officials had made statements to the press falsely linking the owners to Osama bin Laden. Griffith affirmed the dismissal on the ground that the owners’ allegations presented a nonjusticiable political question, writing that “courts are not a forum for reconsidering the wisdom of discretionary decisions made by the political branches in the realm of foreign policy or national security.”
Oberwetter v. Hilliard, No. 10-5078, 2011 WL 1843417 (D.C. Cir., May 17, 2011): Griffith wrote a unanimous opinion holding that there is no constitutional right to engage in “silent expressive dancing” inside the Jefferson Memorial. The opinion noted that the government has substantial authority to impose reasonable and viewpoint-neutral speech restrictions on a discrete portion of its own property in order to create a tranquil national memorial. In this case, the court held that dancing inside the Jefferson Memorial was prohibited “because it stands out as a type of performance, creating its own center of attention and distracting from the atmosphere of solemn commemoration that the [National Park Service Regulations] are designed to preserve.” The court went on to hold that the Memorial is a nonpublic forum for purposes of First Amendment analysis: Having “created and maintained the Memorial as a commemorative site, the government is under no obligation to open it up as a stage for the roving dance troupes of the world.” The case garnered national attention.
United States federal judge
In the United States, the title of federal judge usually means a judge appointed by the President of the United States and confirmed by the United States Senate in accordance with Article II of the United States Constitution....
on the United States Court of Appeals for the District of Columbia Circuit
United States Court of Appeals for the District of Columbia Circuit
The United States Court of Appeals for the District of Columbia Circuit known informally as the D.C. Circuit, is the federal appellate court for the U.S. District Court for the District of Columbia. Appeals from the D.C. Circuit, as with all the U.S. Courts of Appeals, are heard on a...
. Before his appointment to the bench he was Senate Legal Counsel, the chief legal officer of the United States Senate. In November of 2011, Griffth was included on The New Republic's list of Washington's most powerful, least famous people.
Educational and professional background
Griffith graduated summa cum laude from Brigham Young UniversityBrigham Young University
Brigham Young University is a private university located in Provo, Utah. It is owned and operated by The Church of Jesus Christ of Latter-day Saints , and is the United States' largest religious university and third-largest private university.Approximately 98% of the university's 34,000 students...
(BYU) in 1978 and served on the Virginia Law Review at the University of Virginia School of Law
University of Virginia School of Law
The University of Virginia School of Law was founded in Charlottesville in 1819 by Thomas Jefferson as one of the original subjects taught at his "academical village," the University of Virginia. The law school maintains an enrollment of approximately 1,100 students in its initial degree program...
, where he received his J.D. in 1985. He worked in private legal practice in Charlotte, North Carolina
Charlotte, North Carolina
Charlotte is the largest city in the U.S. state of North Carolina and the seat of Mecklenburg County. In 2010, Charlotte's population according to the US Census Bureau was 731,424, making it the 17th largest city in the United States based on population. The Charlotte metropolitan area had a 2009...
from 1985 to 1989, and then in Washington, D.C.
Washington, D.C.
Washington, D.C., formally the District of Columbia and commonly referred to as Washington, "the District", or simply D.C., is the capital of the United States. On July 16, 1790, the United States Congress approved the creation of a permanent national capital as permitted by the U.S. Constitution....
, until 1995. Griffith left private practice in 1995 to serve as Senate Legal Counsel, the chief legal officer of the United States Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
. In that position he gave nonpartisan legal advice to both parties during President Clinton's impeachment trial
Impeachment of Bill Clinton
Bill Clinton, President of the United States, was impeached by the House of Representatives on charges of perjury and obstruction of justice on December 19, 1998, but acquitted by the Senate on February 12, 1999. Two other impeachment articles, a second perjury charge and a charge of abuse of...
. After briefly returning to private practice from 1999 to 2000, Griffith became General Counsel of BYU.
D.C. Circuit nomination and confirmation
President George W. BushGeorge W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
first nominated Griffith to the D.C. Circuit on May 10, 2004, to fill a seat vacated by retired Judge Patricia M. Wald. His nomination replaced that of Miguel Estrada
Miguel Estrada
Miguel Angel Estrada Castañeda is an attorney who became embroiled in controversy following his 2001 nomination by President George W. Bush to the United States Court of Appeals for the District of Columbia Circuit...
, who withdrew his nomination after Democrats filibuster
Filibuster
A filibuster is a type of parliamentary procedure. Specifically, it is the right of an individual to extend debate, allowing a lone member to delay or entirely prevent a vote on a given proposal...
ed him for over two years.
Controversy arose over Griffith’s nomination because his District of Columbia bar membership had lapsed in 1998 for failure to pay dues. Griffith was reportedly unaware of the problem at the time and as soon as he learned of it in 2001 paid the dues and was reinstated. After the Washington Post ran a story about the issue in June 2004, a number of prominent Democrats wrote letters supporting Griffith. Abner Mikva, former Democratic congressman and former Chief Judge of the D.C. Circuit, wrote that he had known Griffith in and out of government and had “never heard a whisper against his integrity or responsibility.” Seth Waxman, who had served as Solicitor General under President Bill Clinton, wrote that “for my own part I would stake most everything on [Griffith’s] word alone.” David Kendall and Lanny Breuer, two of President Clinton’s lawyers during the impeachment trial, also wrote letters supporting Griffith.
Some Democrats also objected that Griffith had practiced law for four years as General Counsel of Brigham Young University without obtaining a Utah law license. His defenders pointed out that it had been the longstanding position of the Utah bar—as explained in a letter to the Senate Judiciary Committee by five former Utah Bar Presidents—that in-house counsel in Utah do not need to be licensed in the state provided they associate closely with Utah bar members when giving legal advice. Griffith said he carefully followed this practice during his time at BYU.
The Senate failed to act on Griffith's nomination in 2004, and it lapsed. Bush resubmitted the nomination for the same seat on February 14, 2005.
On June 14, 2005, the Senate confirmed Griffith by a vote of 73-24. Twenty Democrats joined fifty-three Republicans in voting for Griffith’s confirmation. (Two Republicans and one Independent did not vote.) Democrats voting for confirmation included Barack Obama, Joe Biden, Minority Leader Harry Reid, and Minority Whip Dick Durbin. Despite earlier criticisms of Griffith, the Washington Post endorsed his nomination, noting that he was “widely respected by people in both parties” as a “sober lawyer with an open mind.” Griffith was the second of three Bush nominees to the D.C. Circuit confirmed by the Senate. He received his commission on June 29, 2005, and is currently the second-most junior active judge on the court.
Personal
Griffith was born in Yokohama, Japan, while his father was there with the U.S. Army. He joined The Church of Jesus Christ of Latter-day Saints while a junior at Langley High School in McLean, VirginiaMcLean, Virginia
McLean is an unincorporated community and census-designated place in Fairfax County in Northern Virginia. The community had a total population of 48,115 as of the 2010 census....
. He served as student body president at the high school his senior year and later served a mission for the LDS Church in South Africa. He attended college at Brigham Young University and later became the General Counsel of BYU from 2000-2005, where he also served as President of the BYU 9th Stake. He previously served as Bishop of the Leesburg Virginia Ward.
Griffith is married to the former Susan Ann Stell. They have 6 children.
Notable opinions
Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007): Griffith joined Judge Laurence Silberman’s majority opinion holding that the Second Amendment protects an individual’s right to bear arms and that this right is not limited to members of the military or organized militias.Davis v. Federal Election Commission, 501 F. Supp. 2d 22 (D.D.C. 2007): Writing for a three-judge panel, Griffith rejected a First Amendment challenge to the Bipartisan Campaign Reform Act’s “Millionaire’s Amendment,” which relaxed contribution limits for opponents of self-financed candidates. Acknowledging that the Amendment disadvantaged candidates who financed their own campaigns, Griffith upheld the law on the ground that this disadvantage was the result of candidates’ voluntary decisions to self-finance. The Supreme Court subsequently reversed 5–4, finding that the Amendment’s differing contribution limits for self-financed and non-self-financed candidates impermissibly burdened candidates’ First Amendment right to spend their own money on campaign speech. The four dissenting Justices called Griffith’s district court opinion “thorough and well-reasoned.”
Abigail Alliance for Better Access to Developmental Drugs v. von Eschenbach, 495 F.3d 695 (D.C. Cir. 2007): Writing for an en banc court, Griffith found that there is no constitutional right to experimental drugs and upheld the FDA’s policy of limiting access to such drugs as rationally related to the government’s interest in protecting patients from potentially unsafe drugs. Griffith’s opinion reversed an earlier 2–1 panel decision from which Griffith had dissented.
Kiyemba v. Obama (“Kiyemba II”), 561 F.3d 509 (D.C. Cir. 2009): Dissenting from the panel’s holding that a court cannot issue a writ of habeas corpus to prevent the transfer of a Guantanamo detainee to a country where the detainee claims he will be tortured or further detained, Griffith argued that the Suspension Clause entitles Guantanamo detainees to notice and an opportunity to challenge the lawfulness of proposed transfers. In a subsequent dissent from denial of en banc hearing on this same issue, Abdah v. Obama, 630 F.3d 1047 (D.C. Cir. 2011), Griffith further canvassed the history of habeas corpus to argue that the writ has long protected a prisoner’s right to challenge a transfer to a location where the writ does not run. Griffith emphasized that Guantanamo detainees were entitled to notice of transfers “only because Boumediene [v. Bush] extended habeas corpus to Guantanamo.”
El-Shifa Pharmaceutical Industries Co. v. United States, 607 F.3d 836 (D.C. Cir. 2010): In an opinion for an en banc court, Griffith affirmed the dismissal of a defamation suit against the United States by owners of a Sudanese pharmaceutical plant. The plant owners alleged that following a U.S. missile attack against the plant in 1998, Clinton administration officials had made statements to the press falsely linking the owners to Osama bin Laden. Griffith affirmed the dismissal on the ground that the owners’ allegations presented a nonjusticiable political question, writing that “courts are not a forum for reconsidering the wisdom of discretionary decisions made by the political branches in the realm of foreign policy or national security.”
Oberwetter v. Hilliard, No. 10-5078, 2011 WL 1843417 (D.C. Cir., May 17, 2011): Griffith wrote a unanimous opinion holding that there is no constitutional right to engage in “silent expressive dancing” inside the Jefferson Memorial. The opinion noted that the government has substantial authority to impose reasonable and viewpoint-neutral speech restrictions on a discrete portion of its own property in order to create a tranquil national memorial. In this case, the court held that dancing inside the Jefferson Memorial was prohibited “because it stands out as a type of performance, creating its own center of attention and distracting from the atmosphere of solemn commemoration that the [National Park Service Regulations] are designed to preserve.” The court went on to hold that the Memorial is a nonpublic forum for purposes of First Amendment analysis: Having “created and maintained the Memorial as a commemorative site, the government is under no obligation to open it up as a stage for the roving dance troupes of the world.” The case garnered national attention.