Bench Memos

Law & the Courts

NPR Report Obliterates Demand Justice’s Smear of Judge Griffith

Ho, hum. A judge who is retiring in order to care for his very ill wife is instead baselessly accused of doing so in exchange for a bribe. That, alas, is par for the course for the left-wing group Demand Justice and its lead henchman Brian Fallon.

In mid-March, Demand Justice filed—or, more precisely as we shall see, purported to file—an ethics complaint against D.C. Circuit judge Thomas Griffith regarding Griffith’s decision to retire on September 1, “two months before the November election.” The lead charge in Demand Justice’s scurrilous letter is that Griffith might be stepping down in exchange for a bribe arranged by Senate majority leader Mitch McConnell—perhaps a “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.” According to Demand Justice, Griffith’s decision “to retire outright,” rather than to continue in senior status, is “particularly suspicious,” as he is “making himself available for alternative full-time employment.” Demand Justice has tried to use its charge to obstruct the confirmation of Griffith’s nominated successor, Judge Justin Walker.

Yesterday NPR reported Griffith’s own account of his decision to retire: he made the decision a year ago, in June 2019; he informed his family and law clerks at the time; he faced no political pressure to step down; and his wife’s “debilitating chronic illness” was the “sole reason” for his retirement. None of this could have come as a surprise to anyone familiar with the D.C. Circuit. Among other things, Griffith hadn’t hired clerks for the coming year, and Griffith has worked extensively from home for years in order to care for his wife. That’s why it had long been widely expected that Griffith would step down.

There is nothing remotely suspicious about the timing of Griffith’s retirement. He will qualify for his pension (under the so-called Rule of 80) on June 29, 2020, 15 years from his appointment. By retiring on September 1, Griffith will complete the D.C. Circuit’s current term and thus do his best to ensure that all, or nearly all, of the cases on which he is sitting will have been resolved.

For all the attention that Demand Justice’s smear received in the fever swamps of the Left and (pardon the redundancy) in the liberal media, it turns out that Demand Justice didn’t even file a proper complaint. Governing rules require that a complaining party verify its charges under penalty of perjury. (See Rule 6(d) of Rules for Judicial-Conduct and Judicial-Disability Proceedings.) As D.C. Circuit chief judge Sri Srinivasan made clear in his bizarre order last Friday regarding the charge—an order about which I will have much more to say—his court promptly informed Demand Justice of its failure to comply with this requirement, yet in the six weeks between its filing and Srinivasan’s order, Demand Justice did not act to remedy this defect. Evidently Demand Justice realized that it’s one thing to make a vicious and baseless smear against a judge, and another thing to do so under oath.

Demand Justice and Brian Fallon should retract their charge and apologize for their smear. But in repeating the smear even in the aftermath of the NPR report, they have already made clear that they won’t.

Addendum: A reader sensibly suggests that I make explicit what I think is implicit: It’s especially unpleasant that Demand Justice’s smear has required Judge Griffith to discuss his wife’s private health situation in public.

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