Summary
What if disagreement could actually unite us? Judge Thomas Griffith, retired DC Circuit Court judge, joins us to explore the Constitution’s genius: its embrace of disagreement as a path to the common good. Judge Griffith shares personal stories from his judicial career, including his bipartisan support for Justice Ketanji Brown Jackson, and dispels the myth of “partisans in robes.” He challenges listeners to defend the Constitution through humility, compromise, and local action, and offers hope for those discouraged by political division.
About Our Guest
Judge Thomas B. Griffith was appointed to the U.S. Court of Appeals for the D.C. Circuit by President George W. Bush in 2005, and served until his retirement in 2020. He is currently a Lecturer on Law at Harvard Law School, a Fellow at the Wheatley Institute, and Special Counsel at Hunton Andrews Kurth. He is also engaged in rule of law initiatives in Central and Eastern Europe.
Earlier in his career, Judge Griffith served as General Counsel of Brigham Young University and as Senate Legal Counsel, the nonpartisan chief legal officer of the U.S. Senate. In 2021, President Biden appointed him to the President’s Commission on the Supreme Court. He is also a co-author of Lost, Not Stolen: The Conservative Case that Biden Won and Trump Lost the 2020 Presidential Election.
He holds a BA from Brigham Young University and a JD from the University of Virginia School of Law.
Useful Links
Judge Griffith's Wikipedia entry:
https://en.wikipedia.org/wiki/Thomas_B._Griffith
Braver Angels – Bridging Political Divides Through Civil Discourse:
Judge Griffith's Letter in Support of Justice Jackson:
Judge Griffith's 2012 Speech at BYU, "The Hard Work of Understanding the Constitution":
https://speeches.byu.edu/talks/thomas-b-griffith/the-hard-work-of-understanding-the-constitution/
Pleasant Pictures Music
Join the Pleasant Pictures Music Club to get unlimited access to high-quality, royalty-free music for all of your projects. Use the discount code HOWTOHELP15 for 15% off your first year.
Transcript
[00:00:00] Thomas Griffith: I was doing a, a program for judges and academics at Oxford, and we're going out to dinner one night, and I dislike it when people bring their cell phones to dinner, but I had mine on the table. And all of a sudden it started to buzz, buzz, buzz and I asked "Andrew, do you mind if I look at this? This is unusual."
So I, I, I picked it up and looked at it and um, and I was getting all these text messages, that President Biden had just announced that he was nominating Katanji Brown Jackson, to the Supreme Court, and that in his statement that he was quoting me, he was reading from my, from my letter and that was, that was bizarre.
[00:00:43] Aaron - Narration: Hi, I'm Aaron Miller. And this is How to Help, a podcast about having a life and career with meaning, integrity, and impact. This is season three, episode five, Disagreement and the Common Good. Before we begin, let me just say that your kind words and positive reviews mean the world to us. To those who have either taken a few minutes to rate the show or to share how to help with friends, you've done the thing that helps the podcast more than anything else.
And if you haven't done that yet, well now you know what to do. Thank you for the generous support and encouragement.
These days, it's easy and reasonable to feel like the US is a nation that's barely holding itself together. Our disagreements seem more bitter and difficult than they've been in any of our lifetimes. I know I 've felt that during the last few years especially. And if you've felt it too can I tell you about a remarkable tradition that's more than a hundred years old now?
Every year since 1893 on George Washington's birthday, a chosen US senator has stood to read aloud Washington's farewell address to the nation. And it's not a short address to deliver, often taking nearly an hour of uninterrupted speaking. After the reading, the senator who had the honor inscribes their name into a leather-bound book that now holds over a century of signatures, a tangible testament to the continued urgency of Washington's message.
His farewell address wasn't a speech. It was published in newspapers in 1796. This was a deliberate choice so he could reach as many Americans as possible. Also, Alexander Hamilton helped him write it. At the time, Washington was nearing the end of his second term as president, and his decision not to seek a third term was made in spite of being so widely loved by his fellow citizens.
Back then, a president could serve more than twice, but the demands of the presidency were simply exhausting. In fact, he revealed in the same address that he had considered stepping down after his first term, but stayed on out of his sense of duty to a nation that was still finding its footing.
The address offered more than a farewell. It was a roadmap for the nation's future. He talks about avoiding foreign entanglements and government debt, but central to his message was the importance of unity. Washington emphasized, quote, "It is of infinite moment that you should properly estimate the immense value of your national union to your collective and individual happiness."
Washington urged Americans to see above regional, political and personal divisions to preserve the union, warning that internal conflicts could undermine the nation's strength.
This tradition might feel meaningless or even hopeless to make any real difference in today's political pain. But consider that the first time the Senate did this reading was in 1862. It was then an appeal to unity during a time of civil war. My guest for this episode is Judge Thomas Griffith, retired judge from the DC Federal Circuit Court of Appeals, widely regarded as the second most important court in America. The DC Circuit Court is where most cases come if the US government is itself a party. The decisions of this court commonly impact the entire nation.
In this episode, Judge Griffith is going to teach us how to disagree while being united. Disagreement is essential to our legal system, of course, but Griffith will persuade you that it's essential to the Constitution itself. In fact, the duality of disagreement and unity are its most essential features
[00:04:30] Thomas Griffith: And the Constitution was designed to encourage, disagreement. It, we want disagreement. I, I don't trust a decision, any decision from anybody, that isn't the product of disagreement. Disagreement is vital.
[00:04:50] Aaron - Narration: Prior to being a Judge, Griffith was a lawyer, a university general counsel, and also the chief legal officer for the US Senate. Let's start the episode though, with the beginning of his judicial career. Like with every federal judge of required a confirmation process, in the same Senate body that has read Washington's farewell address for over a century.
Despite the unifying spirit recommended by our first president, judicial confirmations have a reputation for being especially grueling and political. That in Judge Griffith's nomination turned out not to be the case.
[00:05:23] Aaron - Interview: What was the experience like going through? A Senate confirmation. Yeah. To the federal bench.
[00:05:29] Thomas Griffith: So mine was, uh, a little unusual and little, uh, easier than most for one reason. For four years, I had been the chief lawyer for the United States Senate, a nonpartisan position, and so I had gotten to know the Senate leadership pretty well. We had been in the trenches together, senate leadership on both sides of the aisle. And so I got the benefit of being like family to, to them.
So that's not to say there wasn't some controversy surrounding it because I, the Democrats were in a mode of filibustering, president George W. Bush's nominees to the DC Circuit. A very distinguished pate lawyer in Washington, DC, named Miguel Estrada, who was a first generation immigrant from Central America, just a great American success story, decided to withdraw from the process. President Bush had to decide, okay, who do I nominate to replace Miguel Estrada? And, and I, I ended up being the replacement to the chagrin of some and the pleasure of others.
And they all the, the primary reason for that was that I had these relationships with the Democratic leadership of the Senate. What I had to go through was nothing in comparison to what others had to go through. So I'm not certain that my confirmation process is the, the, the norm because of the, because of those personal relationships.
[00:06:56] Aaron - Narration: Reports from longstanding members of Congress all have a common and very sad theme. The collegiality that Griffith saw as the Senate's lawyer has been dissolving steadily over time. Friends across the aisle are rarer than ever, but personal relationships are essential to compromise. It's much harder to persuade people that you don't know.
Griffith's career has been one of building these relationships, sometimes against the trend as when he endorsed Supreme Court Justice Keji Brown Jackson's nomination. Nominees to the Supreme Court faced stiff political opposition to be confirmed, but it wasn't always that way.
[00:07:33] Aaron - Interview: This history of building relationships, uh, across the political divide seems to have also played out when you introduced Justice Jackson. You made news for this because you were appointed by a Republican president and now you were doing the introduction for a democratically nominated Supreme Court Justice.
[00:07:52] Thomas Griffith: There was a time when that was, that sort of move was completely non-controversial, right? That used to be the norm. I can't remember the exact numbers, but what Justice Scalia was confirmed was it 98 to nothing, and Ruth Bader Ginsburg, 96 to 3.
And so that was what I would call the good old days. So there was a time when that was not controversial, but as you pointed out, no, it was controversial in, uh, this time.
So let me tell you the story. So I, I know Justice Jackson, she, um, was a trial court judge, a district court judge in the DC circuit when I was a court of appeals judge. And, and I got to know her and anyone who meets her discovers she's a very pleasant person. She's just delightful. She's the type of person you want to have lunch with. She's kind and thoughtful, all these wonderful virtues.
I disagreed with her on some legal matters. I thought her approach was mistaken, but I had no question that this was a person was trying to apply the law impartially. We just had a difference of opinion on a couple of occasions about what the law required. That seems to me completely unremarkable. That happens all the time.
[00:09:08] Aaron - Narration: Shortly after Judge Griffith retired from the DC circuit, Katanji Brown Jackson was nominated to that same court by President Biden.
When that happened, Jackson asked Griffith to write a letter of support, which he did gladly, and she was confirmed. The year following Griffith was at dinner with friends at Oxford when his phone started buzzing with a flood of text messages. President Biden had just announced the nomination of Jackson to the US Supreme Court, and in his announcement, Biden quoted the previous letter of praise written by Judge Griffith.
[00:09:41] Thomas Griffith: She then asked shortly before her confirmation hearing if I would be willing to introduce her. "I'd be honored to." She said, "Okay. You'll be hearing from the White House Council in a day or so about the logistics of that, what happens."
[00:09:55] Aaron - Narration: Judge Griffith eventually found himself in the hearing room for the Senate Judiciary Committee.
Here's a clip from his introduction for Justice Jackson.
[00:10:05] Thomas Griffith - Senate Testimony: Chairman Durbin, ranking Member Grassley and members of the Senate Judiciary Committee. I come here today as a retired federal appeals court judge with 15 years of experience on the United States Court of Appeals for the DC Circuit. I come here as a jurist appointed by Republican President George W. Bush. And I come here as someone who understands that there are few greater responsibilities under the constitution than serving as a Justice on the United States Supreme Court. It takes a jurist of high character, keen intellect, deep legal knowledge, and broad experience to ensure that the judiciary plays its unique role under the Constitution, to uphold the rule of law impartially and not to be in the words of Justice Steven Breyer "partisans in robes." Today I have the high honor to introduce Judge Katanji Brown Jackson, a jurist who has all of those qualities.
[00:11:08] Aaron - Narration: Judge Griffith noted in his introduction that this moment used to be what he called "regular order," where a judge appointed by a Republican president would support a judge chosen by a Democratic one.
[00:11:20] Thomas Griffith - Senate Testimony: Now some think it noteworthy that a former judge appointed by a Republican president would enthusiastically endorse a nomination to the Supreme Court by a Democratic president. That reaction is a measure of the dangerous hyper-partisanship that has seeped into every nook and cranny of our nation's life, and against which the framers of the Constitution warned us.
There should be nothing unusual about my support for a highly qualified nominee who has demonstrated through her life's work her commitment to the rule of law, and an impartial judiciary.
[00:11:57] Thomas Griffith: Yeah, and it, it was news. It made news. I will tell you, after the hearing, I was approached by several senators on the committee, on both sides of the aisle, to express dissatisfaction with what has become of the confirmation process. Because it's become so partisan and, and so political, and they cheered me in my comments and encouraged me to keep, to keep pushing for this sort of, of approach.
[00:12:32] Aaron - Interview: It's a fantastic story. Yeah. I love that.
[00:12:35] Thomas Griffith: And, and some of Justice Jackson's approaches and opinions she's written, I, they wouldn't be the ones that I wrote. But again, I think the Supreme Court's a better place. I think the United States is a better place for having her voice and, and her approach there.
[00:12:49] Aaron - Narration: The overwhelming perspective of everyday Americans is that federal judges are simply party politicians in robes. I asked Judge Griffith what he would say to those who believe this.
[00:12:59] Thomas Griffith: I think, uh, they'd be surprised and pleasantly surprised to find out that judges are not partisans in robes.
The, the, the phrase that, and I'll state it this way. So my experience was on the US Court of Appeals for the DC Circuit for 15 years. And in 15 years on the DC Circuit, working with 11 other judges in hundreds of cases, I never once saw any of my colleagues make a decision that I thought was in any way painted by their political bias.
Now we're all appointed by different presidents. All of us are products of the political system. Never once did I see any of my colleagues, and hopefully I didn't do it either, cast a decision based on what, what we thought the best result was, political result was. Judges just don't think that way. Sure, you still have your political views and we would talk about those over lunch and stuff. But you just do your level best to keep those views out of your decisions as, as a judge.
And I, it's really inspiring to see people from different political backgrounds put that to one side and try and decide, not what the best outcome is, but what the law requires. And you, and there are times when I disagreed with what the law requires, but you follow the law. You take an oath to do that. You take an oath to be impartial. In my experience, 15 years on the DC circuit, I never once saw anyone who violated that oath.
[00:14:51] Aaron - Narration: This might lead you to misunderstand how disagreement works among judges. Important cases when appealed are often decided by split votes, two to one at the Circuit level, five to four at the Supreme Court level. We often see judges divided up as conservative and liberal, but there are cases where appellate judges side with each other despite political boundaries. What's at stake and where the disagreements lie is over what the law requires.
[00:15:18] Thomas Griffith: Now there's plenty of room for disagreement about all sorts of things. About how do you read a statute, what's the best way to read an act of Congress? Do you read it just according to the words that are there, or do you try and understand what the purpose was? Is there a purpose for the, those, so there's lots of room for disagreement on that. But the disagreements were over how to read a statute, how to interpret the Constitution. They weren't over, "Is this going to help the Rs, or is this going to help the Ds?" And I, I wish American people could see that. Now...
[00:15:52] Aaron - Narration: Why then do Americans see the courts so differently, as just extensions of hyper-partisan politics? It has mostly to do with the hyper-partisans who complain about the courts.
[00:16:04] Thomas Griffith: The problem, of course, is the pundits and politicians characterize our work differently. President Trump famously criticized the decision that went against his administration. And he said "That was an Obama judge." And, uh, in response to that, chief Justice Roberts issued a statement, which was really extraordinary. I, I don't think I've ever seen this in my lifetime, where Chief Justice responds to a criticism of President of the United States where he rebuked that. He said, "We don't have Obama judges or Clinton judges or Bush judges. We have federal judges who are all doing their best to, to apply the law."
[00:16:42] Aaron - Narration: Of course, judges aren't perfect. We have a national history that bears the shame of judicial decisions like Plessy v Ferguson, which upheld segregation as constitutional, or Korematsu v US, which made it legal to put Japanese Americans in internment camps during World War II.
But we also have Brown v Board of Education where Plessy was repudiated despite the politics of the moment. Judge Griffith notes that people would be encouraged if they saw how the courts actually worked day-to-day.
[00:17:14] Thomas Griffith: Now, do judges always live up to that standard? No. I'm sure they don't. They fall short. But that's the standard, that's the goal, that's the aspiration. And at least in my experience, uh, that's the reality of it on the DC circuit. I, I wish people could see that because if they did see that, they, I think they would be really inspired. They would say, man, this system is unique, is pretty unique in the world. And it works and people get a fair shot and are treated well and are heard. I think they'd be very encouraged by that.
[00:17:51] Aaron - Narration: Judges ultimately have an obligation to be something that many people have come to see as a weakness in our leaders, the trait of being persuadable you.
[00:18:00] Thomas Griffith: I love the quote it, it's attributed to Oliver Cromwell, I've never done the research to find out if he really said this or not, but the Puritan revolutionary Oliver Cromwell was reported to have said, "I beseech ye in the bowels of Christ, think that ye might be mistaken." And the cardinal virtue that judges should strive for is humility and to be open to persuasion, as you said.
[00:18:29] Aaron - Narration: The American judicial system is pretty unique in the world, as Judge Griffith said. And its novelty comes down to the genius of the Constitution, where the judicial branch was established as coequal with Congress and the Presidency. But for that position of importance, courts would always be operating under the whims and machinations of people in power.
This is one of the many reasons why defending the Constitution is so critical today, just as it was back when George Washington pled for us to do the same more than 200 years ago. But the Constitution isn't merely an ideal or symbol of patriotism. It's a set of particular ideas and principles that we need to understand and hold onto with all the dedication we can muster.
I asked Judge Griffith what he thinks we need to be doing today to preserve Constitutional government.
[00:19:20] Thomas Griffith: Sure. That's a big question. And first of all, I, I applaud and cheer anyone who wants to defend the Constitution. Because I think the Constitution, it's, it's unique. It defines who we are as a people. We need to be vigilant about, about protecting the Constitution.
I'll use the words of George Washington. George Washington said in, in the transmittal letter, sending the draft Constitution to the Continental Congress. Uh, he said, "This Constitution is the product of that spirit of amity and that mutual deference and concession which the peculiarity of our political circumstance rendered indispensable."
So the Constitution was created in that sort of spirit, and I believe that it can only continue if we bring those virtues back into the discussion. Sometimes you get your way with a couple of compromises thrown in, and sometimes you don't get your way at all because you lose. The best explanation I heard of this that summarizes this came from a former Utah Supreme Court Justice and current leader in the Church of Jesus Christ of Latter Saints, Dallin Oaks, who said, "On contested issues we should see to moderate and to unify."
That's a pretty good, that's a pretty good approach.
[00:20:59] Aaron - Narration: During our conversation, Judge Griffith highly recommended the new book, American Covenant: How The Constitution Unified Our Nation and Could Again by Yuval Levin. In his book, Levin makes the case that the Constitution was intended to create a new kind of citizen, one who works by negotiation, bargaining, and compromise.
Levin's argument is that this kind of citizen is made necessary by the limitations placed on majority rule. In many things, even the people in power should have to compromise. Disagreement and compromise make sense if both sides have good reasons for their position, but surely we're not expected to compromise with everyone who disagrees with us.
What about those whose beliefs and ambitions are wrong at a much deeper level?
[00:21:46] Aaron - Interview: How do you recommend the average American think about where is, where, where is truly evil that's worth resisting versus what is open to reconciliation and compromise.
[00:21:56] Thomas Griffith: Yeah. Big question. Big question. So we, it's also pointed out to us that America is unique among nations of the world and that it's, it's founded on some ideas, instead of founded on blood and soil sort of thing. And those ideas are expressed in the Declaration of Independence, right? That's our secular scripture. And the two most fundamental principles are to be an American, means that you're committed to liberty and equality.
Those are abstract concepts. Those are high aspirations. But if you're an American, you gotta be committed to that, right? If you're not, I'm not going to hate you. But I'm sorry, you don't get to sit at the table and help, uh, determine the course of this nation. So therefore, there are some conversations that I'm just not going to have. I, I'm, I'm sorry, I'm not going to invite a Nazi to the table. Uh, no. I, I'm sorry. I'm not going to hate you. Uh, I'm not going to show contempt for you. I will battle your ideas to the day I die, but I'm not going to hate you. But no, you're not going to be part of the, the conversation. You know, there, there is evil out there, but boy, to categorize an idea or a person as evil. Boy, be careful about that.
Right? Be humble about that. And even when we're dealing with evil, I think it's incumbent upon us to do the best we can to understand where is this coming from? Why does this person have these views? And even in studying evil, you may find out that, that there are reasons for why this person has taken these extreme and evil views. And to the extent that we can understand that, then the better we'll be able to combat those truly destructive ideas.
[00:23:50] Aaron - Narration: Social media today is sadly a breeding ground for the wrong kind of citizen, not just for evil, but also for conflict. Social media platforms feed on fear and anger because those emotions keep your attention.
What might help there?
[00:24:07] Thomas Griffith: Stop being on social media, people!
We, we know what's going on! We know what's going on on social media. We know what's going on on cable. We know what's going on on talk radio. This is sounds like the old man saying, stop driving a car, or don't use the internet. But seriously, if you're, if you're consuming information from social media, from cable, and from talk radio, you, we know we're being played, right?
[00:24:37] Aaron - Interview: Yeah.
[00:24:37] Thomas Griffith: We're being played by algorithms. We're being played by revenue dollars, ad dollars. That's what's going on with political views on social media, cable and talk radio. And so, you know, I'm not so naive as to say don't do it at all. I, I, I wish people wouldn't actually, but I'm not that crazy. But realize when you're there, you're being played.
[00:25:00] Aaron - Narration: Because I teach them every day, I like to ask my guest for advice to the rising generation. There is truly a force of good people coming to age in a rough place right now. What should they do with this country that they're inheriting?
[00:25:15] Aaron - Interview: So what advice do you have for them in that regard? Like what, where do you think they should be pointing themselves to have the impact they're looking for?
[00:25:23] Thomas Griffith: First of all, their instincts are right. Their desire to serve is audible. There's so much more to life than economics, right? And, and so any young person who's motivated by a desire to improve the common good the first thing I say to them is, "Bless you! Don't lose that. Don't lose that." Then the question becomes, how do you do it?
In, in our current circumstances, I'm not certain the solution is politics. Politics is a tough world right now. Unfortunately, you're not going to have a lot of role models in the political world, uh, today. But look, look for those. Who are treating their political opponents, not as enemies, but as, as co-laborers in this great democratic enterprise?
For others, I think the real, the real good that's going to be done is locally. I think real change, real meaningful change happens slowly over time, but it typically happens at the local level. At the level of your family, the level of your congregation. If you're a, a person, say in, in the schools that your children attend, the school board, city, county, that's where I think real meaningful change takes place. I'm afraid it's not going to come at the national level. I don't think somebody's going to come riding on a horse, white knight, to, to, to save us from this. It's going to, it's going to come from the local level. And so my encouragement is don't give up on your idealism, but focus on what you can do in your own community, because that's where real, uh, meaningful change over time will, will occur.
[00:27:09] Aaron - Interview: Any parting thoughts for those who are especially discouraged by the political rancor that we're all swimming in?
[00:27:16] Thomas Griffith: Yeah. You have reason to be discouraged. I am too. I am too. So what do you do with that discouragement? We can, uh, retreat to our own shell and watch cable news and just get mad. Or post some sort of invective about our discouragement on social media.
You can do that. That's not helpful. If you're discouraged, the best thing to do is is to work for change at, at, at, at in your life, in the lives of those around you, by modeling the type of, uh, political discourse you'd like to see us have. It turns out social science research shows us that in those very few instances where people do change their mind, that it's typically, um, because of a conversation with a friend.
No, no one changes their mind when they're being yelled at. My, my parting shot, be that type of person and, and hope and pray that, that the model catches on. Try and understand what your fellow citizens are thinking about and what they care about.
[00:28:25] Aaron - Narration: We like to think of our founding fathers as superheroes, philosopher-warriors who somehow had the power to mold an entire nation. But Washington noted in his farewell that he was guilty of many errors in his time as President. Speaking of these failings, he said, "Whatever they may be, I fervently beseech the Almighty to avert or mitigate the evils to which they may tend."
Washington also hoped that his faults of incompetent abilities will be consigned to oblivion In his final address, in his final paragraphs, what Washington asked from his fellow Americans was grace and forgiveness for not doing a better job. If the great George Washington needed grace and forgiveness, surely we do too.
I'm incredibly grateful to my friend, Judge Thomas Griffith for spending time with us. How to Help is a production of BYU Radio and hosted and written by me, Aaron Miller. This episode is produced by Erica Price with help from Blake Morris and Kenny Mears. Scoring and mixing was done by Seth Miller, and our music is by Eric Robertson and the Pleasant Pictures Music Club.
For more information about this episode, use the links in the show notes. And if you haven't subscribed to How to Help, you can do that in your favorite podcast player. As always, thank you so much for listening.
