Baseless allegations have no place in the judicial confirmation process

When the progressive advocacy group Demand Justice sent off a letter calling for an investigation into the circumstances surrounding Judge Thomas Griffith’s decision to retire, it did so under the guise of combating partisanship within the judicial appointment process.

In reality, their actions have only enflamed it. 

Griffith currently sits on the United States Court of Appeals for the District of Columbia Circuit — what some call the second-highest court in the land. 

Before his appointment to the bench in 2005 under President George W. Bush — with the bipartisan support of the likes of then-Sens. Joe Biden and Barack Obama — Griffith served as the nonpartisan legal counsel to the U.S. Senate and as the general counsel of Brigham Young University.

This June he will have reached one and half decades as a federal judge. This means he’s eligible to receive full pay benefits once he retires. It was well-known he planned to step down.

He suggested as much to me back in 2019, stating that the decision “hinged” on his wife’s health. And in fact, one well-known legal blog pointed out that within the beltway it was “common knowledge.” As law professor Christopher Walker chimed in on Twitter: “it was pretty widely known in DC legal circles that the judge decided to retire last year due to spouse’s health issues.” 

This all aligns with the judge’s own public statement on the matter which he once again conveyed to me personally.

“My decision was driven entirely by personal concerns and involved no discussions with the White House or the Senate,” Griffith told NPR, further explaining that his wife suffers from a “debilitating chronic illness” and “that her health was ‘the sole reason for my retirement.’”

It’s certainly understandable that progressive advocates feel frustrated that the Trump administration — with the assistance of Senate Majority Leader Mitch McConnell — has managed to appoint more than 50 judges (and counting) to vacancies on the U.S. Court of Appeals. 

According to one estimate from the Brookings Institution, the appointments amount to more than a quarter of all federal appellate judges in the United States.

Quite a feat. 

So, when reports surfaced in mid-March that McConnell was encouraging more Republican-appointees nearing retirement to take the plunge so President Trump could fill the vacancies, it’s reasonable that advocates might begin to object.

Expressing concerns about political point-scoring involving the judiciary has its place. Partisanship can erode confidence in a judge’s oath to act impartially. And ultimately the judicial appointment process should focus more on competence than politics. But, raising appropriate red flags must never involve false innuendos about a federal judge retiring without providing evidence.  

Demand Justice suggests collusion where in fact there is none. Such tactics and veiled accusations only exacerbate an already partisan process, especially when the judge in question is one of the few confirmations in the past two decades to receive broad bipartisan support. 

Indeed, it’s hard to take seriously alarms about the excesses of politicking in the appointment process when raised by a group willing to wantonly drag a soon-to-be retired judge into a highly partisan back-and-forth without facts to justify the exercise. 

Rather than search for the truth by actually, say, calling the judge, his colleagues or his clerks to suss out the motives behind the decision to step down, Demand Justice appears to have simply fired off its missive to D.C. Circuit Chief Judge Srinivasan without due diligence or fact-checking.

In turn, Srinivasan requested that the Chief Justice of the Supreme Court, John Roberts, consider transferring the matter to another circuit for consideration. As The Wall Street Journal recently editorialized, Roberts wisely rejected the “political stunt.” 

The issue once again rests with Srinivasan. As one commentator put it, we’re now long past due for Srinivasan to “dismiss the sham charge.”

Demand Justice’s actions would be misguided if taken against any judge, but especially Griffith. Sure, I’m biased, the judge is a friend. But, his character in my estimation is above reproach. He’s the kind of man who embodies the old English sermon, which says that “when you observe that a man seeks the affection of those who can do nothing for him ... you know that he is not seeking himself, but that pure benevolence sways his heart.”  

I’m not alone in my assessment. To quote the noted Princeton professor Robert George: “Judge Thomas Griffith is the most honest man to make his living in Washington, D.C., since April 14, 1865, at 10:15 p.m. when Abraham Lincoln died. The idea that he could be bribed is absurd.”

Demand Justice’s choice to aim its partisan ire at Griffith is hopefully just the result of overzealous ignorance. 

A mistake, nothing more. 

But, sadly, I fear that in fact the group may have known what it wrote was likely false but chose to pen it anyway. In an age of internet fundraising, where attention rules the purse, the incentives to sidestep the nuances and texture of truth is often too strong. 

Griffith deserves far more in the way of thanks for his years of service to the nation than a spurious call for an investigation into his decision to retire at the scandalously proper age of 65. I hope he receives a worthy send-off, including heartfelt expressions of gratitude from both sides of the aisle. 

Many today rightly worry about politics reaching too far into the judiciary. Those making the case for a more balanced approach to judicial appointments, confirmations, and retirements deserve respect. But impugning the motives of a sitting judge sans evidence; targeting a public servant without attempting to fully ascertain whether its justified — that’s not demanding justice, that’s aborting it.