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Volokh Conspiracy

An Unfortunate Smear of Judge Thomas B. Griffith


Judge Thomas Griffith began service on the D.C. Circuit on June 29, 2005. Under the so-called "Rule of 80," he will become eligible to retire with full pay on June 29, 2020. On March 5, Griffith announced that he would retire on September 1, 2020. In D.C. legal circles, it was common knowledge that Judge Griffith planned to retire as soon as he was eligible due to personal reasons. Indeed, Judge Griffith stopped hiring future clerks. The only intrigue concerned who would be his replacement.

On March 19, the group Demand Justice asked Chief Judge Srinivasan "conduct an inquiry into the circumstances surrounding Judge Thomas Griffith's intended retirement." The letter speculated that Senator McConnell may have tried to bribe Judge Griffith so he would step down, and open a vacancy.

Therefore, if Judge Griffith accepted anything of value in exchange for his retirement from the bench, including the promise of future employment, such as a prestigious professorship, or future income or any bonuses that could have come with an agreement for future employment, he may be violating these Rules.

(They left Kentucky Bourbon off the list; a case of Jim Beam really would have sealed the deal for Judge Griffith!)

On May 1 Chief Judge Srinivasan issued a two-page order. Here is the crux of the analysis:

In addition, when, as here, there is no verified, formal complaint, the Rules require identification of a complaint to enable a request for transfer of the matter to the judicial council of another circuit for review and disposition. See JUDICIAL-CONDUCT PROCEEDINGS RULE 26. The organization's request for an inquiry concerns the decision of a judge of this court to retire from service and the resulting creation of a vacancy on this court, which would be filled by a future colleague on this court. It being apparent that the circumstances warrant a request for transfer, the court has requested, pursuant to Rule 26, that the Chief Justice of the United States transfer this matter to the judicial council of another circuit for review and disposition. See JUDICIAL-CONDUCT PROCEEDINGS RULE 26 Commentary ("transfers may be appropriate . . . where the issues are highly visible and a local disposition may weaken public confidence in the process").

Demand Justice did not publicize this order right away. Rather, they provided it to Carl Hulse at the New York Times a few days later. He published an article on May 4, titled "Appeals Court Vacancy Is Under Scrutiny Ahead of Contested Confirmation Hearing." It began with this sensational lede:

Just days before a high-profile Senate confirmation hearing to fill a vacancy on the prestigious U.S. Court of Appeals for the District of Columbia Circuit, the court's chief judge has opened the door to an inquiry into whether ethical improprieties occurred in the creation of the coveted opening.

The article closed, "The judge could not be reached for comment on Monday." That statement is different than "No comment." It means they published the story without waiting for the judge to return the call. I have no idea if anyone is even answering phones in chambers on Monday. Most judges now work remotely.

There is a perfectly valid reason to explain the retirement. Tuesday afternoon, Judge Griffith gave a statement to Susan Davis and Nina Totenberg of NPR:

"My decision was driven entirely by personal concerns and involved no discussions with the White House or the Senate," he said in a statement provided to NPR.

Griffith said that his wife was diagnosed 11 years ago with a "debilitating chronic illness" and that her health was "the sole reason for my retirement." He said he made the decision to retire in June 2019 and privately informed his family and law clerks at the time. His retirement was announced publicly in March.

Alas, the Times was complicit in an unfortunate smear of Judge Griffith. The order was given to the press, timed to create the maximum impact before Judge Justin Walker's confirmation hearing on May 6. As of Tuesday evening, the Times has not updated its story. It should correct the story as soon as possible.