Wampum

Recently, I looked at the trial experience of William Myers, President Bush’s nominee to the bench of the 9th Circuit Court of Appeals. I found it remarkable that Mr. Myers was nominated to a post in which correcting trial errors is an essential function without any experience as a judge, and having never handled a criminal matter of any kind, and having never tried a single case before a jury. Indeed, Raymond Burr’s fake trial experience as TV’s Perry Mason exceeds Mr. Myers’ jury trial experience.

What is equally remarkable is that Senate Judiciary Chairman Arlen Specter chose to bring up Myers’ nomination first “for the explicit reason that he may have a good chance of being confirmed and breaking the deadlock.”

Apparently, actual experience to prepare a nominee for a position on the federal appellate bench is seen as a negative.

Perhaps Mr. Myers’ lack of traditional qualifications for the appellate bench is an aberration among President Bush’s nominees. Surely, there could not be another nominee to the Circuit Court bench who exhibits such a lack of important experience, could there?

Let’s look at the career of President Bush’s nominee to the Circuit Court of Appeals for the D.C. Circuit, Thomas B. Griffith. His answers to the Senate Judiciary Committee Questionnaire may be found here (pdf). Is he more qualified to decide if an error has been made at trial than Raymond Burr?

I first note that, like Mr. Myers, Thomas B. Griffith has never served as a judge. In comments, Charles Kuffner informs us that at the beginning of the first Perry Mason movie, Raymond Burr plays the part of a judge. Playing a judge in a made for TV movie is not much, but it is more than Mr. Griffith can boast.

Like Mr. Myers, Thomas Griffith has never tried a case to a jury. He has never exercised a preemptory strike, never submitted or objected to a jury charge, and never kept his voice down to prevent the jury from hearing the sidebar discussion. As far as I can tell, Mr. Griffith has never represented a human being in any civil case whatsoever. If any jury issues arise on an appeal to the D.C. Circuit, and such issues will frequently arise, he will have no experience on which to draw.

Indeed, Mr. Griffith’s jury trial experience is so lacking that in response to the Senate questionnaire, he was reduced to citing his experience in the case of Houston General Insurance Company vs. American General Lloyds. That case never went to trial but Mr. Griffith did point out to the Judiciary Committee that, in preparing the case, his firm conducted a mock trial. Mr. Griffin participated in that mock trial. Raymond Burr, of course, tried more than 250 mock cases on TV. Mr. Griffith can boast of only one.

I suggest that some Senator ask Mr. Griffith at his confirmation hearing to give a few examples of what would be an acceptable and a not acceptable response to a Batson challenge. Perhaps he could be asked be asked under what circumstances he would uphold or overturn the use of an Allen charge. Those are among the type of issues Mr. Griffith will confront on the bench and it would be useful to know if he has any expertise in those areas.

Even if we consider non-jury trials, Mr.Griffith’s experience is very limited. According to his answers to the Senate questionnaire, Mr. Griffith has tried a grand total of six cases to judgment. In three of those six, half of his total trial experience, he was “associate counsel” as opposed to lead counsel. As associate counsel, his duty was to watch, learn, and assist the lawyer who had the responsibility of actually trying the case. We call that “second chair.” In only three cases was Mr. Griffith lead counsel. In all six instances, the trial was before a judge and not a jury.

With regard to criminal matters, Mr. Griffith has never participated in a proceeding to determine guilt or innocence. Unlike Mr. Myers, he does have some criminal experience. While an associate, his law firm participated in the ABA’s death penalty project. Mr. Griffith was one of three lawyers in the firm (including a criminal law expert) who brought state and federal habeas proceedings on behalf of death row inmate Joseph Payne. The habeas proceedings were not successful (a pattern in Mr. Griffith’s cases we shall explore later). Nonetheless, on the eve of Payne’s execution date (after Mr. Griffith left the case to pursue other career options), the Governor of Virginia commuted Payne’s sentence to life in prison. The ABA death penalty project is admirable work and Mr. Griffith and his former firm are to be commended for it. It is, however, the only experience Mr. Griffith has with any criminal case.

When we look at the cases Mr. Griffith lists as his “most significant” a couple of items jump out. The first listed case is the 1998-1999 Impeachment Trial of President Clinton. Mr. Griffith served as Counsel to the Senate, then under the control of Majority Leader Trent Lott. Mr. Griffith says he planned the trial, attended the trial, and advised the Senate leadership throughout the trial.

As was pointed out last summer at Paperwight’s Fair Shot, at the time of the impeachment trial, Mr. Griffith’s law license had been suspended. Thus, while Mr. Griffith was leaning over to whisper “Rule of Law, Rule of Law” in Trent Lott’s ear, he was practicing law without a license.

It should also be noted that in the most significant case of Mr.Griffith’s career, he lost. In the second and third listed “most significant" cases (Clinton vs. City of New York, and Raines vs. Byrd), Mr. Griffith represented the interests of the Republican Senate in an effort to have the line item veto held constitutional. He lost both of those cases in every court in which the matter was heard.

In his fifth listed “most significant” case, Mr. Griffith defended the accounting firm of Ernst & Young in an action by the Office of Thrift Supervision. That case settled with Mr. Griffith’s client paying $400,000,000.00 to the OTS. It is a rare case in which you can claim victory if your client pays $400 million.

Of the first five cases Mr. Griffith listed as the most significant of his career, he lost three outright and his client paid nearly half a billion dollars to settle a fourth. The other case was settled and, as Mr. Griffith was representing the defendant, it is a fair inference that his client paid in that one too.

Let’s be frank about Mr. Griffith's career. He has very little trial experience and he lost most of his important cases. Mr. Griffith does not list a single case among his most significant in which 1) he was lead counsel, 2) the case was tried, and 3) his client won.

Perhaps if Mr. Griffith had a long and outstanding career as a lawyer and a judge, we could overlook the fact that he violated ethical rules and statutes by engaging in the unauthorized practice of law for four years. Mr. Griffith’s experience, however, is not long and distinguished. It is very thin at best.

Given that he did practice law without a license and that he lacks experience, it would be irresponsible to give him a lifetime appointment to the second highest court in the land.