Legality of Excluding Candidates Over Age 60 From Consideration for Judicial Appointment

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). 388 * * * 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 389