October 3, 1979
79-74 MEMORANDUM OPINION FOR THE
ATTORNEY GENERAL
Judges—Appointment—Age Factor
Representative Pepper, Chairm an o f the House Select Committee on
Aging, has expressed concern over the practice o f considering the age o f
candidates for judicial appointm ent and excluding from consideration
those who are older than age 60. This brief m em orandum discussed the
legality o f that practice.
The practice is lawful. The C onstitution gives the President the power to
appoint Federal judges. A rt. II, § 2, cl. 2. In making these appointm ents,
the President is constitutionally entitled to exercise his discretion and to
follow policies that in his view will serve the interests o f the Nation. The
practice o f considering the age o f judicial candidates reflects such a
policy.*
Representative Pepper suggests that this practice is inconsistent with the
Age Discrimination in Em ployment Act o f 1967, as amended (the “ A ct” ).
See 29 U .S.C . § 621 et seq. The Act provides, inter alia, that “ [a]ll person
nel actions affecting * * * applicants for employment * * * in those
units o f the * * * judicial [branch] o f the Federal Government having
positions in the competitive service * * * shall be made free from any
discrimination based on age.” 29 U .S.C . § 633a(a).
W hatever this language means, it does not purport to bind the President
in making appointm ents for judicial office. Candidates for judicial office
are not “ applicants for em ploym ent” in the ordinary sense o f that phrase.
Moreover, by limiting the applicability o f the statute to “ units o f the
‘ The practice is not barred by any o ther provisions o f the Constitution. It is doubtful that
the President’s power to appoint persons to high Governm ent office is subject to any
restraint such as those grounded in the First and Fifth Am endm ents, which may regulate in
some respects the hiring and firing o f some kinds o f Governm ent employees. In any case, the
practice o f considering a judicial candidate’s age abridges no such restraint. It presents no
First A m endm ent question. It deprives no one o f liberty or property. It establishes an age
classification that is fully as rational and defensible from a constitutional standpoint as age
classifications that have been upheld in other contexts. C f, Massachusetts v. Murgia, A ll
U.S. 307 (1976); Palmer v. Ticcione, 576 F. (2d) 459 (2d Cir. 1978).
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* * * judicial [branch] * * * having positions in the competitive service,”
Congress may have intended to exclude noncompetitive positions from the
coverage o f the statute, at least with respect to the judicial branch. The
operative language was added to the Act by Pub. L. No. 93-259, 88 Stat.
74. We have found nothing in the legislative history o f that amendment that
would support or require a contrary conclusion.
Representative Pepper suggests that the “ policy” o f the Act is violated
nonetheless. With all due respect, that argument is o f doubtful merit. The
Act does not apply to all appointm ents in the Federal Government; and it
expresses on policy whatever, so far as we can determine, with respect to
judicial appointm ents or candidates for judicial appointm ent. Indeed, if
Congress had purported to bar the President from considering age in the
selection o f judicial appointees, the Act would present a substantial consti
tutional question. Congress has power to prescribe qualifications for office;
but the power o f appointm ent belongs to the President, and it cannot be
usurped or abridged by Congress. See, Buckley v. Valeo, 424 U.S. 1 (1976);
cf., Springer v. Philippine Islands, 277 U.S. 189 (1928). There is no settled
constitutional rule that determines how these two powers—the power of
Congress to prescribe qualifications and the power o f the President to ap
point—are to be reconciled,*but it seems clear that there must be some con
stitutionally prescribed balance. The balance may shift depending on the
nature o f the office in question. For example, Congress has required that
the President appoint members o f both parties to certain kinds o f boards
and commissions; there is serious question whether Congress could con
stitutionally require the President to follow the same practice with respect to
his Cabinet.
The question o f age discrimination in the selection o f candidates for
judicial office presents a similar problem. The power to appoint Federal
judges, who hold office on good behavior, is by tradition and design one o f
the most significant powers given by the Constitution to the President. It
provides one o f the few administrative mechanisms through which the
President can exert a long-term influence over the development and adm in
istration o f law in the courts. The President’s present power to exert that in
fluence to the fullest by preferring candidates for appointm ent who are like
ly to have long, rather than short, careers on the bench is therefore a m atter
o f constitutional significance. W hether Congress could deny the President
that power by requiring him to disregard utterly the age o f candidates for
appointm ent has never been considered by the courts, but because o f the
gravity o f the constitutional questions it raises, we would be most reluctant
to construe any statute as an attem pt to regulate the President’s choice in
that way, absent a very clear indication in the Age Discrimination in
Employment Act o f 1967.
John M . Harmon
Assistant A ttorney General
Office o f Legal Counsel
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