Bench Memos

Law & the Courts

Dismissal of Smear Charge Against Judge Griffith, and More Puzzling Behavior by Chief Judge Srinivasan

On Friday, D.C. Circuit judge Karen LeCraft Henderson issued an order dismissing Demand Justice’s scurrilous—and wildly hyped—charge that D.C. Circuit judge Thomas Griffith’s decision to retire might have been in exchange for a bribe. Judge Griffith publicly disclosed two weeks ago what was no surprise to anyone familiar with the D.C. Circuit: that he made his decision to retire in June 2019; that he informed his family and law clerks at the time; that he faced no political pressure to step down; and that his wife’s “debilitating chronic illness” was the “sole reason” for his retirement.

As Henderson states in the memorandum accompanying her order, Demand Justice “has provided nothing that calls into doubt the judge’s explanation of his decision.” Its complaint “rests entirely on unsupported speculation about the subject judge’s motives.” Because the complaint “is based on allegations lacking sufficient evidence to raise an inference that misconduct has occurred” (Henderson is quoting the applicable rule), it should be dismissed.

One curiosity of Friday’s order is that it was issued by Henderson rather than by D.C. Circuit chief judge Sri Srinivasan. As you’ll recall, Chief Justice Roberts rejected Srinivasan’s bizarre request to transfer Demand Justice’s complaint to another circuit. Srinivasan, evidently persisting in his ill-founded judgment that he couldn’t decide Demand Justice’s charge, disqualified himself from the matter and thus punted it to Henderson. (Henderson’s order has a footnote that explains that she is acting pursuant to the rule that applies when the “chief judge is disqualified.”)

Srinivasan’s disqualification is puzzling. First, the Rules for Judicial-Conduct and Judicial-Disability Proceedings contemplate that a circuit’s chief judge will ordinarily handle all misconduct complaints regarding his colleagues, so it’s difficult to see why this one would be an exception.

Second, Srinivasan in fact kept the complaint on his plate for six weeks or so: it was under his direction that (as his May 1 order states) the circuit executive’s office informed Demand Justice that it had failed to submit a proper complaint as it hadn’t filed it under penalty of perjury. (It appears that Demand Justice never remedied that defect.) It was only on the cusp of D.C. Circuit nominee Justin Walker’s hearing—a time that would garner the most attention—that Srinivasan tried to have the complaint transferred to another circuit and, in a departure from the ordinary practice of confidentiality, made public his effort to do so.

A cynic might suspect that Srinivasan’s actions can best be explained by his desire to curry favor with the Left in order to advance his prospects for a Supreme Court nomination by the next Democratic president. When Srinivasan was first advanced as a candidate for a D.C. Circuit vacancy in 2010, the Left defeated his candidacy, in part because of union animosity to his corporate clients in private practice, in part because, in his former capacity as an assistant to the Solicitor General, Srinivasan advocated the positions of the Bush administration on Guantanamo war-on-terror detainee issues. Srinivasan is conspicuously missing from Demand Justice’s long “shortlist” of 32 proposed Supreme Court candidates. Dismissing Demand Justice’s baseless complaint obviously wouldn’t win him any favors with the Left. By contrast, publicly asking to have it transferred at a time that would generate misguided hit pieces against the Walker nomination might.

Meanwhile, Demand Justice and Brian Fallon, after hyping their smear against Griffith for weeks, haven’t even acknowledged to their followers that their complaint has been dismissed. Nor, of course, have they apologized to Griffith.

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