An Unfortunate Smear of Judge Thomas B. Griffith

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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.

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  1. Sadly, I’m not surprised.

  2. I passed “rule of 80” a few years ago. I have no such option, and most certainly no one is promising me even more money under the table to do so.

  3. The substantive question the NYT opened was whether Mitch McConnell was canvasing older federal judges, and trying to find ways to induce them to retire, so that they could be replaced by younger conservative judges. And to get that done quick, to avoid losing out if Trump did not win reelection.

    The answer to that question, which neither the NYT nor Josh Blackman even explored, would have a good deal to do with how to evaluate Griffith’s retirement. Especially so, if McConnell has systematically been blandishing post-retirement emoluments to prospective retirees.

    And of course, that question becomes entangled with a larger question of improper politicization of the courts. It is entirely justifiable journalism to explore whether judges, by agreeing to time retirements for political reasons—if they are doing that—are doing something which is judicially improper.

    1. Let’s translate ‘Lathrop-speak’….In other words, it is fine to make stuff up and speculate as long as the ‘right’ team is doing it.

      I see nothing improper in a man deciding to retire to take care of his wife.

      1. Commenter_XY — Judging that a proper motive for retirement has nothing to do with whether asserting it was deceptive, or even fraudulent. Or maybe saying so was just a distraction, or change of subject. Or possibly the real motive. Leaving all that unresolved is a notable apparent flaw in the NYT’s journalism. I objected to that inwardly when I read the story.

        That said, I have learned by experience that with some journals—the NYT is one of them—apparent flaws in stories sometimes point to in-process development of facts which will follow presently. I doubt the NYT published that story without already having information tending to confirm that McConnell has been trying to incentivize older conservative judges to retire, so Trump can replace them with younger conservatives.

        The Times may have been pushed into publishing before it was ready, because it looked to them like Griffith’s replacement—a McConnell protégé already pronounced “unqualified” by the ABA—was about to be rushed through Senate confirmation. If so, the NYT would not have been mistaken to suppose the circumstances under which Griffith retired were newsworthy, even as speculation. There is always a chance that some in the Senate, after learning what might be happening, would decide to slow things down to find out whether it was true. That justifies the story.

        1. Oh please, give Readership a collective break, lathrop. You objected to nothing, and decided to speculate as to motive without a scintilla of evidence. There is nothing – absolutely nothing – to point to any other reason other than what Judge Griffith has publicly stated – his wife has a chronic illness and he is retiring to care for her. You perpetuate mindless speculation, and hint at potentially nefarious motives for Judge Griffith retiring.

          What I have learned from experience is there really is no limit to wokesters depths of depravity.

          1. Commenter_XY: 2

            Lathrop: 0

          2. Commenter, neither the NYT piece or Lathrop’s comments “speculate as to motive.” Even the Demand Justice complaint only raises a possibility based on Sen. McConnell’s activities. Not sure what you are so worked up about.

        2. I doubt the NYT published that story without already having information tending to confirm that McConnell has been trying to incentivize older conservative judges to retire, so Trump can replace them with younger conservatives.”

          Imagine the outcry had someone suggested that Harry Reid was trying to incentivize the judges appointed by Carter & Clinton to retire so that Obama could replace them with younger leftists….

          1. Imagine the outcry had Obama’s name been on the stimulus checks.

            Oh wait, you falsely claimed that actually happened.

    2. What I want to know is how come there hasn’t been an investigation into whether these retiring judges are all reptilians from the alpha draconis system, and are timing their retirement to prepare for an invasion. I note that you neither you, nor the NYT, nor Josh Blackman even bothered to explore the issue. Nor have any of you denied the implications. Is it possible that you, the NYT, and Josh Blackman are reptilians yourselves? Or at the very least, compromised by them? I’m just asking questions.

  4. Ah, the renowned cynicism of Professor Blackman, implying that the Times would retract this slander.

  5. I don’t see what is so “sensational” about the lede.

    It reads like a like straightforward report of events.

    Meanwhile McConnell pushes an unqualified stooge to replace Griffith.

    1. The ABA seems to differ with you, bernard. They rated him ‘Well Qualified’ on May 5th.

      1. Well, I don’t keep up with their hourly bulletins.

        Nonetheless, he’s still a stooge and an ideologue.

        Still, I’ll keep in mind that you have greatrespect for ABA ratings of nominees.

        1. “Well, I don’t keep up with their hourly bulletins.”

          True, but that’s not the only thing you don’t keep up with.

        2. bernard, bernard, bernard…c’mon guy. You don’t like him because of who nominated him. We all get it. Is Patricia Millet a stooge and ideologue? How about David Tatel? Or Cornelia Pillard?

          Listen, you get your chance this November 2020.

  6. The judge is 65, his wife has a chronic illness, he wants to take care of her, so he’s planning on retiring to do this.

    Why the NYT runs a smear instead of waiting for a response from the judge??

    1. Because they are petty, venal and amoral wokesters.

      1. There was absolutely no smear. Demand Justice filed a complaint, and NYT reported on it. You all work so hard to fit everything into your liberal media narrative.

        1. “The commenters going by the handles Alpheus W Drinkwater and bernard11could not be reached to comment on the possibility of accusations that they are pedophiles. Despite pictures presented on the internet of a person that might be Alpheus W Drinkwater and bernard11 having sex with an underaged brain damaged child and two goats, no denial was forthcoming at the time this comment was posted.”

          I don’t see why anyone would think this could be a smear. It’s just factual reporting.
          /s

          1. “Several people have demanded that Alpheus W Drinkwater be banned from all public parks due to accusations of his pedophilia.” Alpheus W Drinkwater has presented absolutely no defense to these accuasations and remained under a cloud of suspicion”

            Nah, not a smear. /s

          2. If there were actually pictures of me having sex with an underaged brain damaged child and two goats, then yes that would be factual reporting, not a smear. If it was just a person who looked like me, then you are an order of magnitude away from the level of facts presented in the NYT article.

            You could have picked a less offensive crime for me. Maybe just one goat?

    2. What is the NYT smear. There was a complaint and they reported it.

      And how long are they supposed to wait? What if he never calls back? Do you think Griffith wasn’t at all aware that the NYT was trying to reach him?

      Blackman is jumping to a conclusion here.

      1. And how long are they supposed to wait?

        See my other post below — the timing of the publication and the careful wording in the article make it clear enough that they “tried” to call after business hours (just in case anyone actually was on-premises that day).

        We’re really not in “well, what were the poor duckies supposed to DO?” territory here.

        1. Your assumptions as to what time of day they tried to call – assumptions made without any evidence at ALL – are still just ASSumptions.

      2. If his intention to retire was known in the legal community, either the NYT has no sources in the legal community or didn’t bother to ask. My guess is the latter.

      3. You ask a fair question, bernard. I would say one business day.

      4. I think they should wait at least as long as they waited to report Tara Reade’s allegations, or maybe even as long as they waited to report Juanita Broderick’s charge against Clinton, which was at least decades. But they should wait longer than they waited to publish Julie Swetnick’s allegations against Kavenaugh.

        Sometimes it seems like the NYT is willing to wait almost forever to get a story “right”, other times they have to rush to get it into print before it falls apart.

        1. I’ll never forget when the then-NYT owned Boston Globe published an actual porno picture on Page B-3. A Boston city councilor alleged that Bush’s army was raping Iraqis, showing a California-made porno movie as his “evidence — and the Globe publishing an explicit shot from that.

          It’s not about news anymore….

          1. Remember when you lied about the stimulus checks?

            It’s not about truth anymore….

            1. I always like to fact check, even for unreliable commenters, before making accusations. So I googled ‘boston globe iraq rape porn’ and found this:

              “Rival media in the US heaped criticism on the newspaper’s decision to publish the photographs, which appeared during a press conference called by Boston city councillor Chuck Turner to publicise the abuse allegations that even Mr Turner admitted were unproven.

              Since then the paper has admitted the pictures may have been shot in Hungary and come from a pornographic website.”

        2. other times they have to rush to get it into print before it falls apart.

          Or, before the related upcoming confirmation hearing passes.

      5. Maybe a day or two? Or maybe try to contact the judge multiple times, in a couple different ways…phone, e-mail, etc.

        You know, if it’s important to actually get the story correct…If not, well…

      6. What is the NYT smear. There was a complaint and they reported it.

        They were not so quick to report on Reade’s allegations against Biden. Instead, they took the time to investigate those first. That was — contra the Trumpkin right wing — a reasonable approach.

        And how long are they supposed to wait?

        A reasonable period of time.

  7. To Progressives, collateral damage due to attacks on Senator McConnell is always acceptable.

  8. The judge could not be reached for comment on Monday.

    By design, quite unsurprisingly. There’s no timestamp on the article itself, but it looks like the first cluster of tweets (including by the Times itself, Brian Fallon, and Demand Justice) was right after 6pm.

    The number of seconds that elapsed between the “courtesy call” and the publication of the article is left as an exercise for the reader.

    1. This is no evidence of anything.

      For all you know they called earlier, waited a few hours for a response, and then decided to go ahead and publish. Quite possibly the reason they published at 6:00 was to give the judge until the close of business to respond.

      IOW, you have no fucking idea what happened, and neither does Blackman.

      I mean, if you just want to rant angrily about the NYT go ahead, but don’t pretend you’ve made some decisive argument. Your “argument” is bullshit.

      1. [expletive-ridden rant deleted]

        It’s called strong circumstantial evidence, friend. And the fact that Judge Griffith actually did issue a statement within a few business hours of publication to that conservative bastion NPR (which the Times strangely hasn’t found the need to mention, even though they clearly went back and updated the article with Brian Fallon’s coordinated press release that evening) just strengthens it further.

        “Nyah, nyah,” they can’t PROOOVE it” only works in the minds of schoolchildren, unsophisticated criminals, and echo chambers.

        1. And yet you blithely dismiss the circumstantial evidence of Sen. McConnell contacting older Republican-nominated judges to the initial complaint.

          1. And here comes the “look, a squirrel!” pivot, right on cue. Pity — I was so looking forward to another attempt to spin a “poor lil’ innocent journalist just trying to do the right thing” story out of this painfully contrived hit job.

  9. So this is actually about the NYT being the NYT?
    The only good thing the NYT has done lately is prove that the Pulitzer prize has no more meaning than a Nobel Peace prize.

  10. Typical drive by media treatment. What else would you expect from Fake News Inc.?

  11. I see many are hungry for red meat this morning.

    1. Yeah, especially since red meat at Wegman’s is pretty expensive these days. We can only afford the ‘red meat’ here at VC. 🙂

      1. Hah.

        Yeah, a good old fashioned partisan NYT hate-fest would have annoyed me, but at the moment it almost feels like healthy venting.

        Not that I’ll be engaging much, since I’m not sure I buy Blackman’s characterization of bad faith, but I also know I cant’s top the music on this one.

        1. The one thing the NYT can say in its defense is that WaPo is worse, much worse.

        2. Truth be told Sarcastr0, I instacarted beef a few weeks back. I am good for a month or two. By then, we’ll be good. All the meatpackers will have recovered by then.

          Lately, I have been experimenting a lot with seafood paella. It is tough getting good saffron. If you ever make it to the People’s Republic, you’re welcome to try some. In a socially distant, politically correct manner, of course. 🙂

          1. My latest is chili with shredded chicken breast.

  12. Blackman- Trump is a genius troll!

    Also Blackman- how dare the NYT say anything mean about a conservative judge! Being mean is bad faith and the NYT should apologize!

    Why is this guy part of VC again? Honestly, all his writing has done is convinced me not to buy his book.

  13. The bitching here is hilarious.

    Even if there is a perfectly innocent explanation, that doesn’t mean that McConnell didn’t try to induce/nudge Griffith to retire. Both can be true at the same time (e.g., McConnell tries to nudge Griffith with a wink-wink, nudge-nudge, Griffith says I was retiring anyway, leave me alone, McConnell bates over the freebie he just got).

    Whatsamatter, Blackman? Afraid of what an ethics inquiry might reveal (not about Griffith but about McConnell and possibly others)?

  14. I have no reason to believe that Judge Griffith isn’t retiring for the exact reasons he said. But how is the NYT article a smear? Demand Justice filed a complaint, the complaint was accepted and dealt with by Judge Srinivasin, and the NYT reported those facts. That they didn’t wait for a comment from Judge Griffith is a weak hook to hang a charge of “smear.”

    The complaint itself is pretty flimsy, though. And it’s also amusing how the Demand Justice releases link to NYT articles as if they support their allegations, when they are apparently who leaked the story to the NYT to begin with.

  15. Judge Griffith could not be reached for comment about whether he was still beating his chronically ill wife.

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