WASHINGTON — Thomas Griffith, the Brigham Young University general counsel nominated to what is considered the nation's second-highest court, will miss a deadline that Senate Democrats say is essential for his confirmation.
Sen. Patrick Leahy, D-Vt., ranking Democrat on the Judiciary Committee, repeatedly has warned that Democrats will seek to shut down judicial confirmations after the first national party convention. Democrats hold theirs next week. Leahy said former Committee Chairman Strom Thurmond, D-S.C., started such election-year slowdowns.
The last slim chance at beating that deadline evaporated for Griffith, who is nominated to the Circuit Court of Appeals for the District of Columbia, when a confirmation hearing scheduled for him this week was canceled.
Committee Chairman Orrin Hatch, R-Utah, said the cancellation was the result of the American Bar Association not finishing its rating of Griffith in time. That means the hearing will not be held until after the Senate returns from its month-long August recess.
Hatch said he is not giving up on Griffith's nomination.
While slowing down confirmations is common before a presidential election to ensure a potential lame-duck president doesn't pack courts with nominees that opponents would rather see the new president appoint, many exceptions have occurred, and the Senate often continues with confirmations through the year, he said.
"There is no 'Thurmond Rule,' " Hatch said about Leahy's contention that the committee since Thurmond led it has shut down confirmations after the first party convention in an election year.
"Strom Thurmond unilaterally on his own . . . when he was chairman could say whatever he wanted to, but that didn't bind the whole committee, and it doesn't bind me," Hatch said.
"He (Leahy) raises the 'Thurmond rule' to remind us that Sen. Thurmond, who was inconsistent in applying his own ideas, should bind the whole committee, but it doesn't," he said.
"To make a long story short, we're going to keep on pushing ahead on judges and hopefully get a number of them through before the end of the year," Hatch said.
Because of term limits that Republicans impose on their committee chairmen, Hatch must give up his chairmanship of the Judiciary Committee at the end of the year. He could make confirmation of Griffith one last favor for his service there or use it as a bargaining chip for other legislation that Democrats seek.
Griffith's nomination was also delayed, in part, because of disclosures in recent months that he did not have a license to practice law in Utah for the four years he has worked at BYU. University spokesmen said a current license wasn't necessary for his mostly administrative work there.
Also, Griffith failed to pay dues to the District of Columbia Bar Association for three years — a requirement in D.C. for a law license. Spokesmen for him blamed nonpayment on administrative staff errors and said Griffith paid the dues immediately when he found out about it.
Griffith is the former U.S. Senate counsel. He is also a former law partner in the Washington law firm of Wiley, Rein and Fielding.
He was nominated to the D.C. appeals court after controversial Miguel Estrada withdrew his nomination after Democrats staged a first-ever filibuster of an appeals court nominee to block him. They have blocked several others since.
On Tuesday, they blocked another — William G. Myers of Idaho, nominated to the 9th Circuit Court of Appeals. The Senate failed to stop a filibuster against him on a 54-44 vote, short of the three-fifths majority required. Democrats complain that Myers, a former solicitor for the Interior Department is too anti-environment.
Hatch told the Senate in response: "Is a judicial nominee disqualified from service on the federal bench solely because he or she has advocated, successfully and competently for people or policies that liberal groups of various stripes dislike?