from the Fall issue of BYU Magazine.
Thomas B. Griffith (BA '78) was confirmed June 14, 2005, by the United States Senate as a judge on the U.S. Court of Appeals for the D.C. Circuit. Griffith had spent the previous five years as assistant to the president and general counsel at BYU.
On July 1, 2005, as Griffith prepared to leave BYU and be sworn in as a federal judge, Edward L. Carter (BA '96) asked the new judge a few questions about his life, his experiences, and the American legal system. Carter is a BYU assistant professor of communications, a graduate of the J. Reuben Clark Law School, and a former law clerk for Judge Ruggero J. Aldisert of the U.S. Court of Appeals for the Third Circuit.
Carter: You served as BYU general counsel and assistant to the president for five years, beginning in August 2000. What will you miss most about the job and what will you not miss?
Griffith: I will miss the daily association with the administration, faculty, staff, and students at BYU. This is a remarkable place.
What will I miss least? Budget meetings.
Carter: Given that you graduated from BYU and later served as assistant to the president and general counsel, what do you value and enjoy about BYU?
Griffith: I value most that BYU is trying to combine the life of the mind and the life of the spirit, and model for the world that those two spheres are complementary. They are not antagonistic. We, along with other religious colleges and universities, play a vital role in providing diversity in American higher education. There was a time in the history of Western civilization when the life of the mind and the life of the spirit were not seen as antagonistic. The highest and best expressions of the spiritual life were completely consistent with intellectual rigor. BYU is committed to the proposition that the life of the mind and the life of the spirit are not antagonistic. BYU and other religious colleges and universities are keeping that important idea alive.
Carter: What experiences did you have as an undergraduate student at BYU that made a difference in your life?
Griffith: I appreciated most having faculty and peers who saw no need to create false distinctions between the life of the mind and the life of the spirit and who modeled that to me. When I joined the Church as a junior in high school, I mistakenly assumed that my commitment to the Restoration would require that I put to one side the life of the mind. Because I was convinced that the Restoration had occurred, that was something I was willing to do. When I came to BYU, I discovered that not only is that not necessary but that it would be a mistake to do so. In the grandest traditions of the Restoration, discipleship and intellectual rigor are part of the same enterprise. Seeing professors and peers who modeled that was the greatest part of my BYU undergraduate experience—that and watching Danny Ainge play basketball and Gifford Nielson play football.
Carter: In what ways can BYU—through the J. Reuben Clark Law School and graduates who pursue legal careers—improve the justice system?
Griffith: I can think of three ways. First, produce lawyers who approach their responsibilities with intellectual rigor. Second, produce lawyers who approach their responsibilities with a commitment to the highest ethical standards of the profession. Third, produce lawyers who are committed to creating a community that cares deeply about those who have been pushed to the margins of our society, those who haven't yet reaped the full benefits of living in a society of constitutional government, the rule of law, and economic liberty. I would hope that lawyers trained at BYU, either as undergraduates or law graduates, would be deeply committed to looking for ways to care for those who have been left out or left behind—those the Savior refers to as the "least of these," but whom He also calls "my brethren" (Matt 25:40). I don't mean to suggest every lawyer out of BYU must work as a public defender or in a social welfare agency, although many should. The idea I'm referring to can be practiced by any lawyer, from the partner at the Wall Street law firm to the public defender.
Carter: You are the first BYU graduate to serve on the U.S. Court of Appeals for the D.C. Circuit. That court is sometimes referred to as the second-highest court in the country, and it has been a stepping-stone to the Supreme Court for Justices Vinson, Rutledge, Burger, Scalia, Thomas, Ginsburg, and Roberts. It has also been the judicial home of well-known judges such as Kenneth Starr, Robert Bork, Abner Mikva, and Skelly Wright. By my count, you are the 56th judge in the court's 112-year history. What are your feelings about the court, and what was your reaction when you first learned President Bush would nominate you?
Griffith: To be nominated by this president to this court is the highest professional honor of my life, and it is deeply humbling. I am aware of the history of this court and of the critical role that it plays in the federal judiciary. I have nothing but the deepest admiration and respect for those who have served on the court and those who serve there now.
Carter: The Barrett Prettyman U.S. Courthouse in Washington, D.C., where your new office is located, is about three blocks from the National Archives, where the U.S. Constitution is displayed. What has made the Constitution so enduring?
Griffith: In my view, there are at least two reasons for its success. First, the brilliance and inspiration of the Framers to create a system of limited government, separated powers, and checks and balances that created a foundation of principles that has set boundaries in the government yet has allowed sufficient flexibility between the branches of government to allow the Constitution to survive.
Second, the American people care about the Constitution. Notice how often the Constitution is invoked in our public debates. It has survived because great men and women throughout the nation's history have cared deeply about its meaning.
Carter: What is your greatest challenge as a federal judge sworn to uphold the Constitution?
Griffith: To uphold the Constitution. I think that it is interesting that one must take an oath of office before one is allowed to be a judge. Even though I have been nominated by the president, the Senate has now given its advice and consent, and the president has now appointed me, I can't assume the office of a federal judge unless and until I am willing to take an oath. That oath requires me to put to one side my own personal views about matters and instead to do my best to determine what the law is and then to apply that law impartially. That's the challenge of a judge, to put to one side personal views.
In my view, a judge in a democracy has a limited role. A judge is not there to determine what's the right thing to do, according to her sense of fairness or justice. The judge should not make new law. The judge must apply the law that has been made by the people through the Constitution, statutes, and regulations. A federal appeals judge must also apply the law established through the precedent of the circuit and the Supreme Court. The greatest challenge of a judge is to act within those carefully circumscribed limits.
Carter: What are your most vivid memories of your time as Senate legal counsel?
Griffith: My most vivid memories involve the impeachment trial of President Bill Clinton, although, I have to say, my entire time as Senate legal counsel was memorable. There were many interesting issues. We were involved in the line item veto legislation. In that matter I was able to work with the acting solicitor general, Walter Dellinger, and later the solicitor general, Seth Waxman. Being able to work with those two remarkable lawyers is something I will always remember. But the impeachment trial stands out because it was so unusual. This was only the second time in the history of the nation that a president had been impeached by the House of Representatives and put on trial in the Senate.
Carter: What lessons did we, as a nation, learn (or should we have learned) from President Clinton's impeachment in the House and trial in the Senate?
Griffith: I don't know that I can speak for the nation, but I can share lessons I took away. One is the importance of the rule of law in a highly charged political environment. In some ways, I had a very easy job during the impeachment trial because my position was not a partisan position. My job was to remind the political players involved that the rule of law applies to the process here; that the Constitution sets forth some bedrock principles regarding the impeachment process; that there were precedents that had been established in the Andrew Johnson trial and other impeachment trials involving judges and other federal officers. Out of those experiences the Senate had learned some lessons and created some precedent. My job as Senate legal counsel was to remind the Senate of the body of law that governed the process by which an impeachment should be conducted and to advocate to the Senate that they follow the precedent in this setting, which they did.
Carter: In 1996 Congress adopted the Line Item Veto Act, which gave the president the authority to cancel certain spending and tax measures after he had signed them into law. One day after the act went into effect, six members of Congress sued the Secretary of the Treasury and the director of the office of management and budget, contending the act was unconstitutional. In Raines v. Byrd, the Supreme Court held that the members of Congress did not have standing to challenge the act. As Senate legal counsel, you were counsel of record on an amicus brief arguing that the act was constitutional but taking no position on the issue of standing. What was at stake for the Senate and were those interests served?
Griffith: The Senate legal counsel can only go to court when directed to do so by a resolution of the Senate. As Senate legal counsel, I was representing the institutional interests of the Senate. I was not representing the interests of any member of the Senate or party in the Senate. In the line item veto matter, the leadership of the Senate directed us to appear and argue in support of the constitutionality of the Line Item Veto Act, but they did not give us any instructions or authority to address the issue of congressional standing. So we addressed only the merits of the constitutionality of the Line Item Veto Act.
Carter: You served in the legislative branch (as Senate legal counsel), in the executive branch (as an appointee to the Title IX Commission), and you now serve in the judicial branch. Many recent political battles have stemmed from the disputes about the appropriate balance of power among the three branches, and much has been made about the "unaccountability" of the judiciary. How do you view the role of the judiciary generally, and how would you describe the judicial philosophy of Judge Tom Griffith?
Griffith: I believe that life-tenured judges in the federal judiciary have a very distinct and limited role. They must avoid the temptation to make law or to substitute their own judgment about what is right in any given case for what the people have already decided through legislation or regulation or for what their courts and the Supreme Court have already decided in case law. The role of a judge is to apply the law to the dispute at hand and to avoid the temptation to substitute his or her personal views about what is right.
Carter: You have volunteered your time and expertise in various capacities, from representing a death-row inmate to serving on a federal commission to review Title IX. How do these activities relate to your statement in 2000 that "the highest and most noble role of a lawyer, then, is to help build communities founded on the rule of law"?
Griffith: They are my meager attempt to try to do that. I believe that lawyers in the United States have a special obligation because we are the direct beneficiaries of this remarkable nation and the success it has had. We, of all people, have a special obligation to give back what we can when we can to help build the community and strengthen it. Lawyers who are trained in how to think about legal issues and how to become advocates have an obligation to use those skills to try to figure out how to make the republic stronger and how to bring people into the community who have been left out. Most lawyers I know do that.
This story hasn't made it to popular culture yet, but it's true: lawyers use their skills to help build community, whether it's using their legal skills in pro bono activities, such as representing the indigent, or using their leadership skills to coach a softball team or work at a homeless shelter or a battered women's shelter. Lawyers have an obligation to do those things. My observation is that they do. I'm very proud to be an attorney, and I wince at the view that some in popular culture have about lawyers. I haven't met many lawyers whose lives are close to the stereotype of popular culture. The lawyers I have worked with care about their communities and work to improve them.
Carter: You are an advisor to the American Bar Association's Central European and Eurasian Law Initiative (ABA-CEELI), which was established in 1990 to advance the rule of law in Central and Eastern Europe and the former Soviet Union. What progress has been made in that regard, and what remains to be improved?
Griffith: Much progress has been made. ABA-CEELI and other providers of rule of law programs have been active in the region since the fall of the Berlin Wall and have been influential in helping these newly formed democratic states create societies based on the rule of law. Ukraine is a recent and dramatic example of that. There are many others. There are heroic men and women in that region who are, in my view, the modern-day Madisons, Jeffersons, and Washingtons for their own societies. They are interested in the rule of law, in reform, and in creating democratic societies based on limited government, individual liberties, and economic freedom. Because they are there, I have confidence that those countries will succeed.
There are great challenges remaining. The rule of law is a powerful idea, but it's also a fragile idea, even in the United States. The rule of law is a concept that must be kept alive and must be rediscovered by every generation. It's a fragile possibility. These newly formed democratic states in Central Europe and Eurasia have made great advances but there's much work yet to be done. Many of them were under totalitarian regimes for several generations, and the residual effect of that takes time to replace. They will do it because they have great citizens who believe in freedom. There are daunting challenges but fortunately there are many—not just in the United States, but throughout the world—to help in that endeavor.
Carter: What are the strengths and weaknesses of the legal system in America today? What particular segment of society, if any, is not particularly well served by the legal system?
Griffith: I believe that the American legal system, by and large, works very well. Obviously, we can always do better. One way in which our society can do better is in representing the indigent. When I joined a team at my law firm that was representing a death-row inmate who was indigent, I was surprised to learn first-hand some of the challenges that face indigent defendants. I had not had prior experience in criminal law. It was new for me to work with an individual whose life hung in the balance. I got a better sense from that experience of how important it is to get good legal representation to those who can't afford it because the consequences are so severe if the process doesn't work well.
Carter: By some accounts, the federal courts' caseload is too heavy, the costs of litigating in the federal system are too high, and the system takes too long to process cases. At the same time, the federal court system in America may be the most sophisticated and effective court system in the world. In your view, what are the biggest challenges facing the federal judiciary, and what are the success stories of the federal judiciary?
Griffith: That's a question that I would be much better prepared to answer when I have more experience as a judge under my belt.
Carter: You told a BYU–Hawaii audience in 2000 that Robert F. Kennedy was your boyhood hero. Why was he your hero?
Griffith: He was such a passionate and articulate spokesperson for those who had not yet experienced the benefits of full participation in American society. He was a spokesperson on behalf of the poor and the dispossessed among us. Although over time my political views differed from his, I have never forgotten his passion for the "least" among us. He spoke of the need for reconciliation in our nation. That moved me as a boy. It inspires me still.
Carter: Who is the federal judge, past or present, you admire most, and why?
Griffith: That's an easy one. I'm a Virginian. Every Virginian, and I think every American, admires John Marshall. Part of it is born of my Virginia roots, but it is also the great work he did in establishing the federal judiciary.
Carter: You and your family have lived in North Carolina, northern Virginia, and Utah. What have been the most important or memorable experiences and events for you, your wife, and your children? What types of activities do you enjoy doing as a family?
Griffith: We love the countryside. In Virginia, we lived in the foothills of the Blue Ridge Mountains, about 65 miles west of Washington, D.C. We lived among the woods on the side of the mountain and had a spectacular view. Susan and I enjoyed raising our family in that beautiful setting.
We also love living in Provo because we are huge Cougar fans. Having so many BYU sporting events nearby is wonderful. We like sports a great deal. We like to play them. We like to watch them.
As a family, we also like to talk about politics. And we love to talk about the gospel. We also go to church. Now that's not unique or distinctive, but most of our time is taken up going to church, and that is how we like it. When you're in the Mormon diaspora, your ward is really the center of your life. When I think of the years we lived in northern Virginia, I think of the remarkable experiences we had in our ward. We were in a small newly created ward, spread out over a large region. We had a diverse ward membership that spanned every economic strata and was racially and ethnically diverse. It was for us in many ways the Camelot experience of our lives. So, when you ask, "what do we do as a family?" that's what we do—we go to church and participate in the full range of church activities. That's what we like to do best.
It was a fascinating experience to live in that setting and be a partner in a major firm in Washington, D.C., and then Senate legal counsel. Those two worlds—professional and ward—were very different. Sometimes it would be jarring to go from one to another, but jarring in a good way because it reminded me that the Lord really does not care about position or prestige. He calls people to do different things and His interest and concern about what's happening in the Senate of the United States is no different than His interest and concern about what's happening in the lives of people who are disadvantaged and struggling with some of the basic issues of life. To go from one world to another in the space of a day was something that was helpful to me.
Carter: I understand that you joined The Church of Jesus Christ of Latter-day Saints during your campaign for student body president of Langley High School in northern Virginia. What did you learn from those experiences?
Griffith: Actually, I joined the Church as a junior in high school and I ran for student body president several months later.
Only rarely in my life have I found that being a member of the Church has put me at some sort of disadvantage in the eyes of other people. Generally, my experience is that when people have learned that I am a Latter-day Saint, they have thought better of me than they probably should have. I've been the beneficiary of the examples of other people.
I certainly felt that way as a Latter-day Saint at Langley High School. Some of my friends were curious about what would become of me. I think, and I hope, that they saw that becoming a Latter-day Saint was a good thing for me. I tried to persuade them that it would be a good thing for them. I was sometimes successful, and sometimes I wasn't. But I have never felt any disadvantage at being a Latter-day Saint.
I have learned that one can be a Latter-day Saint and not be afraid of being actively involved with other wonderful people of different faiths or no faith. Over the years, many of the finest people I ever met or associated with were not Latter-day Saints and many were not even believers in God. Some of those experiences helped me to understand that Latter-day Saints shouldn't fear being involved in activities with those who are not of our faith. In fact, I think our faith is enriched and our discipleship can become more meaningful as we get involved in the lives of those not of our faith. From my understanding, the period of gathering, physically removing ourselves from the world and living in isolation, is over. I believe that part of the reason the prophets want us to get involved is not only that we have something to offer to others, but also because they have much to offer us.
Carter: Federal judges' salaries are less than what some of their law clerks will make once they leave chambers and begin practicing at large metropolitan firms. There has been a longstanding effort to increase the compensation given to federal judges, but members of Congress seem reluctant to raise the pay of federal judges above their own. What should federal judges be paid?
Griffith: I'll take a pass on that one. The chief justice of the United States speaks for the federal judiciary on those issues, and he's better equipped to address that issue than I am.
Carter: You're at LaVell Edwards Stadium. It's BYU vs. University of Virginia. Who do you cheer for?
Griffith: BYU! No hesitation; it's not even close. Actually, I've been in a similar position. In August 2000, I had been assistant to the president and general counsel for BYU for only a few weeks when President Merrill J. Bateman invited me to go back to Charlottesville, Va., to watch BYU play the University of Virginia. I had the opportunity to watch the game with then-governor of Virginia James Gilmore. I was his guest in his box, and I was cheering for BYU, but respectfully, realizing where I was.
I think the Cougars fell behind by 21 points but rallied in the fourth quarter and won. By the end of the game I had lost much of my restraint and was involved in full-throated cheering for the Cougars. I made a deal with a member of the governor's staff who is a close friend. I said, "If UVA wins, I'll wear the UVA hat back to Utah. If BYU wins, you have to wear the BYU hat all the way home." I lost my BYU hat that day.
That is not even a close call. BYU, always.
Carter: What do you do for relaxation or fun?
Griffith: I run. I ride my bike. I play tennis. I watch Chris Matthews's Hardball show.
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