A man for this season
Retired Judge Thomas B. Griffith, BYU’s former general counsel, introduced Ketanji Brown Jackson before the Senate Judiciary Committee Monday. He’s trying to introduce America to a different kind of Washington, D.C.
In his remarks endorsing Jackson, Griffith called her “an independent jurist,” praising her “keen intellect” and “deep legal knowledge.”
The fact that it’s “noteworthy” for a former Republican-appointed judge to “enthusiastically endorse” a Democrat-appointed nominee, he warned the audience, shows how partisanship has “seeped into every nook and cranny of our nation’s life.”
When President Joe Biden first announced Jackson’s nomination, the president quoted Griffith, calling him “a former general counsel of Brigham Young University and a George Bush appointee to the Court.” Days later, Griffith wrote a letter to the Senate Judiciary Committee in support of Jackson — much to the chagrin of certain conservatives, who haven’t been quite as enthusiastic about Biden’s selection.
Some see political savvy behind Biden’s move to place Griffith in a prominent role during the confirmation of Jackson. It’s no secret that out of the four sitting U.S. senators who graduated from BYU, only one — Democrat Kyrsten Sinema — voted “yea” to Jackson’s confirmation to the D.C. Circuit Court of Appeals back in June.
But if Biden has his own political purposes, so too does Griffith, it seems.
In an interview in his D.C.-based law office, the former judge — who is now in private practice — leans back in his black leather chair to explain his commitment to “moderating and unifying” the partisan discourse swirling around Washington’s halls of power.
At a time when the consensus seems to hold that “the swamp” is irredeemable, Griffith refuses to overlook the bright side of the Potomac. “There’s a lot that goes on on Capitol Hill, or in this town, where people get along,” Griffith told me, smiling. “But that never gets headlines.”
His introduction of Jackson on Monday seemed calculated to change that.
On Jan. 6, Washington, D.C., was on edge.
But the year was 1999, and the president, just hours from the start of an impeachment trial, was charged with lying under oath and obstructing justice. Then the Senate’s legal counsel, Thomas Griffith was tasked with preparing both Democratic and Republican senators for what would transpire in the coming days.
When President Bill Clinton’s trial commenced, it was the first impeachment Washington had seen in some 130 years. There was universal dissatisfaction among senators at how the House had treated the trial, but the procedure of impeachment was so unfamiliar to the senators that many didn’t feel prepared.
The best solution Sens. Tom Daschle and Trent Lott could find — then the minority and majority leaders, respectively — was Griffith. He’d spent months preparing to offer nonpartisan legal advice to both sides, and his job that night was simple: bring the Senate up to speed.
Griffith pored over the Constitution, including the impeachment instruction that senators were to be “on oath.” He couldn’t get the play “A Man for All Seasons,” out of his mind, which focuses on Sir Thomas More’s refusal to take an oath that would violate his conscience.
“When a man takes an oath,” reads a signature line from the play, “he’s holding his own self in his own hands. Like water (he cups his hands) and if he opens his fingers then, he needn’t hope to find himself again.”
So when the Democratic caucus convened the night before the trial, Griffith explained to the senators the history of the oath they’d take, then read it aloud. When he reached the final phrase — “so help me God” — he belted it out.
They were transfixed.
“I thought, man, if the Democrats liked that, the Republicans are going to love it,” Griffith recalls.
Throughout the impeachment trial, Griffith carried a sheet of paper with a colloquy from “A Man for All Seasons” printed on it.
The play resonated.
Rep. Henry Hyde, chairman of the House Judiciary Committee, spoke in his opening remarks about More and the importance of oaths. Later, Sen. Dick Durbin quoted the play as well. When Sen. Susan Collins wrote of her experience to vote against impeachment (even against her party), she mentioned the importance of the oath.
Griffith is every bit a product of Washington, D.C. He was student body president of Langley High School in McLean, Virginia. When Griffith interned for Rep. Morris Udall as a teenager, a Democrat from Arizona — whose Washington residence was down the street from Griffith’s home — would give him rides to and from work each day.
After Udall passed away in 1998, Griffith sat next to Udall’s widow, Norma, at the funeral. When Daschle, then the Democratic minority leader, approached to pay his respects, he was puzzled why Griffith was sitting in a seat of honor with the late Democrat’s family.
Udall was one of Griffith’s first mentors and political heroes, Griffith explained to Daschle. “But I don’t want you to tell this to (Sen. Trent) Lott,” Griffith said, referring to the Republican majority leader.
“OK, our secret,” Daschle said.
That Griffith would emerge as the preeminent conservative voice for Biden’s Supreme Court nominee does not surprise those who’ve followed his career. This has little to do with Griffith’s politics or judicial philosophy — he doesn’t hesitate to call himself a “judicial conservative,” and the moniker is well-supported by his record on the bench. But, Griffith has been on a multiyear tour telling anyone who will listen that the Republic depends on rebuilding “civic charity” across the party lines.
.@POTUS thought Judge Jackson's opening statement was strong, forceful, and effective. He was also grateful for the statements of Professor Fairfax and Judge Griffith. And today he has asked for regular updates on the status of the hearings.— Jen Psaki (@PressSec) March 22, 2022
It’s an idea he sensed in his nonpartisan role as senate legal counsel. After his service to the Senate, Griffith returned to his alma mater, Brigham Young University, and worked as university counsel for five years. Then, in 2004, President Bush nominated Griffith to the U.S. Court of Appeals of the D.C. Circuit, the so-called “second highest court” in the land.
“We didn’t want to lose him, but we also didn’t feel like we should stand in his way, either,” said Cecil Samuelson, president of BYU when Griffith was nominated to the D.C. Circuit. “We knew it would be a great boon for BYU — and, frankly, the church — to have someone of Tom’s quality to serve there.”
Bush’s original nominee, Miguel Estrada, never made it through the Senate confirmation process. Democrats viewed him as an ideologue and filibustered him for two years. The atmosphere became so tense that Estrada eventually withdrew his nomination.
Griffith was next in line. And given his bipartisan relationships in the Senate, his confirmation was thought to be a breeze after the Estrada debacle. Utah Sen. Orrin Hatch made a push for him, and his prospects were auspicious until a Washington Post story emerged, alleging that Griffith let his D.C. Bar membership lapse six years earlier by not paying membership dues. Shortly thereafter, Sen. Harry Reid — the Senate minority whip at the time — summoned Griffith to the Capitol and met with him just off the Senate floor.
“Look, Tom, you’re going to be confirmed,” he leveled, placing his arm around Griffith. “This isn’t about you. The only way you mess this up is if you take it personally and fight back.”
Sure enough, Democrats began to rally around Griffith.
Abner Mikva, the White House counsel for Clinton, wrote a letter to the Senate Judiciary Committee in support of Griffith’s nomination. So did Seth Waxman (Clinton’s solicitor general) and Lanny Breuer (Obama’s to-be assistant attorney general), as well as a handful of Clinton’s impeachment lawyers. When all was said and done, Griffith was confirmed by a Senate vote of 73-24. Reid — along with Barack Obama, Joe Biden, Dick Durbin, Chuck Schumer and a number of other Democrats — voted in his favor.
“Judge Griffith is one of the most principled judges I ever worked with,” Judge David Tatel, a Clinton-appointed judge who replaced Ruth Bader Ginsburg on the D.C. Circuit, told me. “His decisions are driven by the law and the facts, and never by his own policy or political views.”
When Griffith was born in the 1950s, some three-quarters of Americans trusted the government in Washington to do the right thing. Today, that figure is around 20%.
Mark Leibovich, the longtime Washington-based journalist, famously said the capital no longer has Republicans and Democrats, just millionaires; his 2014 bestseller, “This Town,” is a nearly 400-page documentation of the city’s vanity-driven cocktail parties and backroom deals that delineate the D.C. elite from everyone else.
But where others see a riverside swamp, Griffith chooses to see the potential for a city beautiful. He admits that people might see him, too, as a “swamp creature” — after all, he was raised just across the Potomac, in a northern Virginia suburb. But it’s there, he says, where he joined The Church of Jesus Christ of Latter-day Saints and its from there he left to serve a mission in South Africa. It’s also there he and his wife, Susan, chose to raise their six children.
That’s not to say Griffith doesn’t see the city’s shortcomings. Quite the opposite. In a 2018 essay for the Harvard Journal of Law & Public Policy, Griffith said the U.S. has faced no greater challenge in his lifetime than today’s “political tribalism.” He’s also warned that authoritarian and antidemocratic impulses today pose the biggest threat to the Constitution since the Civil War.
Griffith has no clear-cut solution for saving the Union, but he knows that retreating to political tribes will only lead to greater disunion and contention. On this point, he is fond of quoting Dallin H. Oaks, a member of the First Presidency of The Church of Jesus Christ of Latter-day Saints and a fellow retired judge. Oaks has encouraged Latter-day Saints to “moderate and unify” in matters of political controversy. Griffith takes this admonishment very seriously.
“Tom makes no differentiation between his intellectual and spiritual lives,” says Terryl Givens, a friend of Griffith’s. The former judge currently spends a night every week teaching a scripture-study class to young adults in northern Virginia. And when the rare opportunity arises to endorse a qualified judge for the Supreme Court he doesn’t balk, regardless of which political party sits in the White House.
That may be an outdated approach, but it isn’t a new one for Griffith.
In 2003, he eagerly told a group of BYU students that he’s never met “a brighter, more intelligent, more principled group of people” than Clinton’s impeachment lawyers. Even The New Republic, when it included Griffith on its list of “Washington’s Most Powerful, Least Famous People,” struggled to characterize him: he holds the “swing seat” on the court, they wrote, while being “ideologically unpredictable” and “relatively evenhanded.”
In his remarks Monday, Griffith said “the civil manner” in which Supreme Court justices debate is vital to “the success of our nation,” adding that “the Constitution requires it.” But when he actually delivered his speech, he added four words: “The Constitution requires it of all of us.”
Griffith’s Washington office is adorned with reminders of lessons and people who still haunt the capital city’s memory. On his desk rests a bust of Abraham Lincoln, a reminder that we must not be enemies. He has a picture of the first female Supreme Court justice, Sandra Day O’Connor, who was present at his swearing-in ceremony.
Next to it is a picture of Rex E. Lee, the former solicitor general and BYU president.
“Each one of them were heroes of unity,” Griffith says. “They were committed to the idea that we can create a greater union.”
That’s part of the reason why Griffith publicly endorsed Jackson and, before that, accepted Biden’s invitations to join the presidential commission analyzing proposals to reform the Supreme Court last year.
The conservatives on that 36-person committee could be counted on one hand, but Griffith was among them. “They’re not politicians in robes,” Griffith says of Supreme Court, quoting retiring Justice Stephen Breyer. “Now, do they fall short of that model? Yeah, on occasion they do. But that’s no reason to give up on that model.”
More likely than not, Jackson will join the court, and Griffith says he will hold her to the same standard as the others. In a partisan age, Griffith is seeking to protect the judiciary from the external forces swirling around it.
What’s at stake, he says, is the rule of law and the U.S. Constitution itself. While others are fitted for different political times, Griffith may very well be a man suited for this particular season.