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D.C. Circuit Judge’s Retirement Gives Trump Another Seat (2)

March 5, 2020, 5:59 PMUpdated: March 5, 2020, 9:14 PM

Judge Thomas B. Griffith will retire from his seat on the U.S. Court of Appeals for the District of Columbia Circuit in the fall, giving President Donald Trump another appeals court vacancy to fill.

Griffith is a 15-year veteran of the D.C.-based circuit and an appointee of President George W. Bush. His retirement became public through a page Administrative Office of the U.S. Courts website listing future vacancies.

The judge made news last month when he authored the majority opinion in a case holding that House Democrats could not use the courts to compel the testimony of former White House Counsel Don McGahn.

The D.C. Circuit, often referred to as the second highest court in the country, is frequently the venue for cases involving the federal government policies and conflicts. Trump has already appointed two judges there, Gregory Katsas and Neomi Rao.

Over the last three years, Trump and the Republican-led Senate have prioritized appeals court nominees. Nationwide, the only other vacancy at that level is at the U.S. Court of Appeals for the Fifth Circuit in New Orleans.

About 80 federal judges appointed by Republican presidents are eligible to take a form of semi-retirement known as “senior status,” including 25 appeals court judges, according to the conservative judicial advocacy group Article III Project.

While a judge doesn’t need to be eligible for senior status to retire, judges may be more inclined to leave their seat knowing they can remain active on the court. And Republican-appointees may choose to leave their seats this year so a like-minded judge can replace them.

Griffith’s Legacy

“I think his legacy is going to be with the nuts and bolts administrative procedure cases,” said Sean Marotta, a Hogan Lovells partner who has practiced before Griffith. “Judge Griffith was an administrative law nerd even on a court full of administrative law nerds.”

Before the constitutional battles that have come before the court under the Trump administration, the D.C. Circuit’s docket was often filled with appeals involving federal agencies “and he really sunk his teeth into them,” Marotta said.

Griffith, 65, often played a key role in environmental disputes, as the D.C. Circuit hears a heavy load of cases under the Clean Air Act, Natural Gas Act, and other statutes.

While his overall record on those issues is moderate, he delivered a major win for green groups in 2017 when he penned a 2017 opinion that ordered the Federal Energy Regulatory Commission to account for the climate change impacts of a natural gas pipeline in the Southeast.

Griffith part of the unanimous three-judge panel that threw out an attempt by Congressional Democrats to sue the president for alleged violations of the U.S. Constitution’s foreign emoluments clause in an unsigned Feb. 7 ruling.

More recently, he wrote another 3-0 decision to reject an unfair competition lawsuit against the president Washington hotel, pursued by a DC restaurateur and political activist accusing it of unfair competition.

In December 2018, Griffith—joined by Katsas—dissented from an en banc decision declining to reconsider a Washington Metropolitan Transportation Authority ban on religious advertising on its buses.

—With assistance from Ellen M. Gilmer.

(Updates with additional information about the other remaining appeals court vacancy.)

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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