WASHINGTON — Abner Mikva was a Democratic House member from Illinois. He was Bill Clinton's White House counsel during the Whitewater probe. He was once the chief judge of the U.S. Circuit Court of Appeals for the District of Columbia.

But even he says new attacks are unfair against Republican Utahn Tom Griffith — nominated to Mikva's old D.C. court of appeals, considered the nation's second-highest court.

"It's not that big of a deal," Mikva told the Deseret Morning News about disclosures that Griffith failed to pay his membership dues in the D.C. Bar Association for a year when he was the U.S. Senate counsel and for two subsequent years when he was a private attorney for a large firm in Washington.

That caused his bar membership to lapse — and membership is required for a law license in Washington. That led to national newspaper stories saying Griffith (now general counsel for Brigham Young University) in essence practiced law without a valid license in D.C. for three years.

"It's a whole lot of nothing," says Mikva. "Lawyers at big firms depend on the administrative staff to take care of those sorts of things (paying dues). If it isn't paid, they wouldn't know. The bar association probably didn't have his new address, so the notice didn't go out properly. These things happen all the time."

In fact, Mikva said, "That's how I once lost my membership in the American Law Institute. I didn't intend to quit it," but dues notices and payments were lost in the shuffle.

Another Democrat, Randy Dryer, former president of the Utah Bar Association, said, "That this could happen is not so grossly abhorrent or out of whack that it would reflect on the qualifications of any nominee. . . . More important is how fast they take care of unpaid dues once discovered, which Griffith said was immediate."

Mikva notes that D.C. bar rules do not even require Senate lawyers to join the D.C. bar to practice legally in Washington — so dues were not required in one of the three years in question. Other attorneys have noted that Griffith never had his law license revoked, so it is incorrect to say he did not have a valid license.

So why then is this an issue? Mikva gives a hint. "This shouldn't be an issue. But whether the Senate should — just before the election — confirm the nominee of a president who took office illegally in the first place should be an issue."

The flap is really about trying to keep more Bush judges off the bench until after the election.

After all, Griffith is seen as a moderate who had good relations with Democrats when he was the Senate counsel — the type of nominee Democrats would hope for if Bush is re-elected. But they would hope even more that John Kerry wins and nominates a Democrat to the slot instead. The issue over the dues payments is a way to stall.

For example, the Leadership Conference on Civil Rights called for a thorough probe of the matter before the Senate Judiciary Committee proceeds with a confirmation hearing on Griffith — which Chairman Orrin Hatch, R-Utah, said he hopes to hold next week.

Having a hearing quickly is important because, traditionally, the full Senate will not confirm any nominees in an election year after the first national party convention meets. Democrats hold the first convention at the end of next month.

If the Senate does not confirm Griffith before then, it almost surely will not do so at all until after the election, if at all. If Bush loses, Griffith's nomination would be dead.

Republicans are also hurting their own cause with Griffith. Some were quoted anonymously in national stories complaining that Hatch moved fellow Utahn Griffith to the front of the confirmation line over other longer-waiting nominees — so they aren't exactly excited to help him.

Of course, Hatch may be doing that because this involves what is seen as the nation's second-highest court — and a slot for which Miguel Estrada was once nominated. Democrats killed Estrada's nomination on a first-ever filibuster of an appeals court nominee. They said he was too conservative.

What it all adds up to is Democrats really hope to delay Griffith in hopes of allowing John Kerry to fill his slot.


Deseret Morning News Washington correspondent Lee Davidson can be reached by e-mail at [email protected].