In May, President Bush nominated Brigham Young University General Counsel Thomas Griffith to the longest-standing vacancy on the U.S. Court of Appeals for the D.C. Circuit in Washington. One-fourth of this court is vacant, and this seat has been open for nearly five years.
Among the U.S. Court of Appeals, the D.C. Circuit is unique because it includes cases involving actions by federal government agencies.
Griffith is extraordinarily qualified to serve on this court. In addition to his academic credentials, years of private practice and praise from so many for his legal ability and integrity, he served as legal counsel of the United States Senate from 1995 to 1999.
In this challenging, bi-partisan position - in an increasingly partisan legislative chamber - Griffith represented the institution itself, its committees, individual members and officers and employees.
He was universally praised for his balance and fairness; Sen. Chris Dodd, D-Conn., commended Griffith for "never succumbing to the temptation to bend the law to partisan ends." I cannot think of better training for the kind of evenhanded temperament required of a judge.
These days, all it seems to take to create "controversy" over a judicial nominee is one remark by one senator (or even a staffer) to one reporter. A highly partisan, take-no-prisoners environment easily magnifies, expands, distorts, and mutates that comment into a rising mushroom cloud and declarations that the nomination is "on life support" or "dead in the water."
Some are concerned by the fact that Griffith has not taken the Utah Bar exam since returning to the state. The real issue is whether, in his capacity as assistant to the president and general counsel at BYU, he is somehow engaged in the unauthorized practice of law.
Most people are no doubt confused about many aspects of legal practice and the legal profession. Unfortunately, this may make it easier for Griffith's critics to more easily mislead people about a fine nominee. The truth is that Griffith's legal work for BYU neither violates a rule nor crosses an ethical boundary.
Practicing law in any state requires a law license. As opposed to those in the more easily recognized "practicing attorney" role, however, those in a "general counsel" role may or may not do legal work that can be labeled the "practice of law."
In May 2003, the general counsel of the Utah State Bar advised Griffith that, if he must engage in legal practice activities, he should "closely associate with someone who is actually licensed here and on active status." In a June 2004 letter to me, five former Utah State Bar presidents echoed this description of state bar policy. A month later, the executive director of the Utah State Bar did the same.
In fact, he wrote that an unlicensed general counsel who engages in legal practice activities "should directly associate with lawyers who are licensed in the state and on active status." "Our policy has also consistently been that those who follow that advice are not engaged in the unauthorized practice of law."
Griffith has stated categorically, in writing, that he provides legal advice "only in conjunction with the attorneys in my office who are active members of the Utah Bar." No one has suggested otherwise. This should put the matter to rest.
Griffith is eminently qualified to sit on the D.C. Court of Appeals. He has received broad support from well-known attorneys, academics and public officials from across the political spectrum. Jim Jardine, a prominent lawyer here in Utah, praised Griffith as "a skilled, thoughtful, experienced" lawyer.
"I think in a time of divisiveness," Jardine wrote, "his appointment can be a point of agreement." I could not agree more.
Republican Orrin G. Hatch is Utah's senior member of the U.S. Senate and chairman of the Senate Judiciary Committee.
