The committee met at 11:30 a.m., in room 6226, New Senate Office Building, Senator Thomas F. Eagleton, chairman, presiding. Present: Senators Eagleton, Weicker, and Buckley.

Also present: Robert Harris, staff director; Gene E. Godley, general counsel; and James S. Medill, minority counsel.

The CHAIRMAN. Good morning, ladies and gentlemen.

Today we are again holding hearings on the nominations of Judges Pair and Yeagley to the District of Columbia Court of Appeals. Since our last hearing they have each received a recess appointment and are now serving on the bench to which they have been nominated.

At this time I should like to incorporate in the record of this hearing the testimony regarding these gentlemen which was given at the hearing of this committee on October 12, 1970, especially that material which relates to the age factors as considered by the American Bar Association. Naturally, if anyone has any additional statement regarding this matter, the committee will be pleased to receive it; however, it does not seem necessary to replow already turned ground. (The material referred to follows:)

JUDICIAL NOMINATIONS FOR DISTRICT OF COLUMBIA COURTS HEARING BEFORE THE COMMITTEE ON THE DISTRICT OF COLUMBIA, U.S. SENATE, 918T CONGRESS, 2D SESSION, OCTOBER 12, 1970

Mr. KLIENDIENST.

(Pages 4-5)

It might be helpful at this point to describe the procedure that was followed in selecting the judicial candidates.

The President determined that the process by which he filled the unusually large number of local judgeships should be thoughtful, thorough, and above criticism. Acting through the Department of Justice, he solicited and received recommendations for nominees from the four local bar associations and from many local attorneys and citizens. A deliberate effort was made to seek out candidates of ability and stature. At the time the selection process began to narrow, more than 160 candidates were under active consideration.

On July 29, the day the Court Reform and Criminal Procedure Act became law, we asked the American Bar Association to assist us in evaluating and ranking a reduced list of judicial candidates. For the first time in history, the American Bar Association was asked to evaluate attorneys for appointment to local judgeships. For the first time a national administration invited the ABA to apply to candidates for local judgeships the same high standards that it applies to candidates for lifetime judicial appointments.

During the next several weeks 35 names were submitted to the ABA for thorough investigation. The investigating committee was headed by Charles Horsky, an eminent Washington attorney who serves as the District of Columbia Circuit's representative to the ABA's Standing Committee on the Federal Judiciary. Mr. Horsky was assisted in his work by U.S. Attorney Thomas A. Flannery, a member of the District of Columbia Bar Association; Frederick H. Evans, past president of the Washington Bar Association; and former Federal Trade Commission Chairman Earl Kintner, a past national president of the Federal Bar Association. These four gifted attorneys are men with impeccable legal credentials.

After careful study Mr. Horsky's panel of four referred its recommendations to the ABA's full committee on the Federal Judiciary. The committee, in turn, made its own evaluation of the candidates, which is submitted to the Department of Justice.

Each of the attorneys presented to the District Committee today has been evaluated by the same ABA standards that apply to lifetime judicial appointments, and each has been found qualified by the American Bar Association to serve in the position for which he has been nominated.

To date no one has devised a better means of evaluating the quality and competence of prospective judges than by submitting their names to the scrutiny of an impartial, nonpartisan committee of the Bar. The assistance of the ABA in this regard was invaluable to the President, as it has been on Federal judicial appointments many times in the past.

This has been a time-consuming process of screening and selection. The need for thorough field investigations by the FBI was also very important. Less time would have elapsed had there been fewer vacancies to fill, fewer candidates to consider, and a less rigorous process of selection. But, all in all, we are satisfied that the time expended in assuring the qualifications of the 18 nominees was well spent in the public interest.

The candidates who emerged from this process represent an excellent cross section of the community they will serve-attorneys from Government and private practice, men and women, blacks and whites, Republicans and Democrats. They range in age from 36 to 66. Should there be some question about age for persons at either end of this spectrum, it should be remembered that such prominent judges as Potter Stewart, Learned Hand, and Charles Wyzanski were first appointed in their thirties-Wyzanski at 35; and that Holmes, Brandeis, and Cardozo were appointed to the Supreme Court in their sixties.

I hope these remarks will provide the committee with a helpful picture of how the President made his appointments to the first unified court system in the District's history. I hope they will reflect the tremendous significance that we attach to the successful operation of these courts.

Now, I have the pleasure of introducing the nominees.

For the District of Columbia Court of Appeals: Mr. Hubert B. Pair, Mr. Gerard D. Reilly, and Mr. J. Walter Yeagley.

(Pages 9-13)

The CHAIRMAN. The Court Reform and Criminal Procedure Act of the District of Columbia requires that all District of Columbia judges retire at the age of 70. This means that one of your nominees today would necessarily retire in 31⁄2 years after he is seated.

Another would have to retire 6 years after he is seated. Another 9 years after he is seated. These three would serve just a small part of their 15-year terms. Isn't it apparent that that span of time that these nominees can serve is really too short a period to learn a difficult job and make really substantial contributions?

Mr. KLEINDIENST. I don't think it is apparent, Senator, when you take a look at the background and qualifications of the three gentlemen who have been recommended by the Attorney General and nominated by the President for the court of appeals. You have in Mr. Pair and Mr. Reilly and Mr. Yeagley three men who, as a result of a lifetime of dedicated practice of law

The CHAIRMAN. Have any of these men ever been a judge before? Mr. KLEINDIENST. No, they haven't, Senator, but they bring to it a wealth of knowledge. Mr. Pair has probably argued more appellate cases than any two or three lawyers combined in this city. Mr. Reilly has a distinguished career as an author, as an attorney, as a framer of legislation; and Mr. Yeagley's experience in the Government of the United States speaks for itself.

This court is going to be the new supreme court, in effect, of the District of Columbia. It is going to formulate the basic rule of law, the concept of stare decisis and a whole new approach to the law in the District of Columbia. The President of the United States and the Attorney General felt that at least at the very outset that the initial appointees should be men of vast experience, men of stature, so that they will bring to this process of formulation on this new court the highest concept and traditions of the law.

I would think that Mr. Pair's three and a half years on this new court would probably be one of the most significant contributions that any person from his community could make to a significant court of this kind in a short period of time.

The CHAIRMAN. Mr. Kleindienst, how many Federal judges do we have in office throughout the Nation now?

Mr. KLEINDIENST. I couldn't give you that number.

The CHAIRMAN. There are in excess of 500, to refresh your recollection.

How many of those Federal judges were over 60 when they were appointed by the President?

Mr. KLEINDIENST. I couldn't give you the answer.

The CHAIRMAN. Let me again refresh your recollection. Twenty-seven judges out of the 500 throughout the United States, were over 60 when appointed. Mr. KLEINDIENST. I have no recollection. If that is the fact of the matterThe CHAIRMAN. It is the fact of the matter. Do you know the American Bar Association standard with respect to age?

Mr. KLEINDIENST. Yes. If a candidate is over the age of 60 in order to be qualified, in effect, they have to make, because of the age factor, a determination that in reality he is well qualified for appointment, and I anticipate

The CHAIRMAN. Is it not ABA's normal practice not to recommend any nominee who is over the age 64, unless he has previously served on a court?

Mr. KLEINDIENST. I believe that is a general objective. They haven't applied it in all cases. It is one we generally adhere to.

Senator EAGLETON. In what case did they not apply that over 64 rule?

Mr. KLEINDIENST. I do not know if they have not-well, I know that they have applied it so far as we are concerned-since President Nixon's administration began-Senator. Whether or not they deviated from it prior to January 20, 1969, I do not know.

Senator EAGLETON. I don't think they have.

Mr. KLEINDIENST. I know President Nixon has nominated to the Senate and the Senate Judiciary Committee has confirmed several judges over the age of 60 years since we have been in.

I can think of two here on the court of appeals in the District of Columbia, and one court of appeals judge for the ninth circuit.

The CHAIRMAN. Weren't they exceptionally well qualified by the ABA?

Mr. KLEINDIENST. I am thinking of Judge Robb, Judge McKinnon, and Judge Trask. All were over 60, and I don't believe any of those three obtained an exceptionally well-qualified rating.

The CHAIRMAN. What about "well qualified"?

Mr. KLEINDIENST. I think so.

Senator EAGLETON. Didn't they have previous judicial experience?

Mr. KLEINDIENST. No, sir.

Senator EAGLETON. None of them did?

The CHAIRMAN. But they met the ABA exception. They were rated “well qualified" by the ABA?

Mr. KLEINDIENST. AS I understand it, from my conversation with Judge Walsh, just to get a qualified rating at that age, you in effect are deemed to be well qualified at least, and the qualification rating, in effect, goes down one step because of the age factor.

The CHAIRMAN. Why would one of your court of appeals nominees be rated "well qualified" by the ABA and two of them just "qualified"?

Mr. KLEINDIENST. I think if it hadn't been for the age factor, the one rated "well qualified" would have been deemed to be "exceptionally well qualified." The CHAIRMAN. The ABA says if you don't rate "well qualified" over the age of 60 you shouldn't be nominated. How do you rationalize your statement that you are following ABA recommendations when two out of the three nominees for the District Court of Appeals don't meet the ABA minimum standards?

Mr. KLEINDIENST. That is the manner in which I understand the approaches, Senator, so that if the man is over 60, it comes out qualified. But in reality that

means that he is well qualified. Otherwise, they would have deemed him not to be qualified because of age, and that has happened with respect to

The CHAIRMAN. You mean to say that you feel that whenever a man is over 60 and is rated by the ABA, if he is rated "well qualified," that really means he is "exceptionally well qualified"? In other words, you don't believe the ABA with respect to recommendations of anyone over 60?

Mr. KLEINDIENST. Well, I believe them, because I understand the basis of their processes. I think Judge Walsh, the chairman of the Standing Committee on Federal Judiciary of the American Bar Association, would be better able to testify about that. But this is my understanding of it. Otherwise they would deem him not to be qualified by reason of age and that has happened in a few instances in the last 20 months.

Senator SPONG. In effect are you saying that if a man is over 60, based on the way the ABA rates, the man would be rated "exceptionally well qualified"?

Mr. KLEINDIENST. I think the theory of it is this: Because a person over 60 has a limited period of time to serve, that they would want to have a higher standard of qualification at the outset rather than the younger lawyer who would have, say, several years by which to gain the background and experience to make him relatively competent as a judge.

But at the same time, this administration or the American Bar Association does not want to exclude from a participation in the Federal Judiciary persons over 60 years of age because they bring to the bar and to the bench in many instances 40 and 50 years of experience and practice, and a combination of that tenure and of that background and judgment and wisdom and experience combined with younger persons on the bench, we think, is a proper combination of vitality and vigor, on the one hand, and wisdom and maturity and judgment, on the other.

I am satisfied with this, however, Senator Spong, and that is that these three men, regardless of their ages, as well as the other nominees before this committee, are qualified and have been deemed to be so by not only the American Bar Association, but by the District of Columbia bar, the Federal bar, and that is the first time that judges for these courts in the District of Columbia have ever been held up to that high standard.

Senator SPONG. I am not being subjective. I am just trying to understand your understanding of this process, which I think is as follows: That if a man has no prior judicial experience, and is over the age of 60, that the American Bar Association in rating him "well qualified", had he been under 60, would have rated him "exceptionally well qualified." Is that what you are telling us?

Mr. KLEINDIENST. Yes, sir. That is my understanding of it. However, Judge Walsh would be the better person to testify with respect to the full procedures. I don't pretend to speak for the Standing Committee on Federal Judiciary of the American Bar Association.

The CHAIRMAN. At this point we will incorporate into the record the present policy of the committee of the American Bar Association dealing with lifetime appointment to the Federal Judiciary.

Senator EAGLETON. Is there anything in the ABA letter that substantiates this? The CHAIRMAN. I will read it.

AMERICAN BAR ASSOCIATION,

STANDING COMMITTEE ON FEDERAL JUDICIARY, Washington, D.C., October 12, 1970. SENATE COMMITTEE ON THE DISTRICT OF COLUMBIA, Senate Office Building,

Washington, D.C.

GENTLEMEN: Herewith a copy of the present policy of the Committee on Federal Judiciary of the American Bar Association dealing with the age of prospective nominees to lifetime appointments to the Federal judiciary.

Very truly yours,

CHARLES A. HORSKY.

With respect to the age of prospective candidates, the Committee believes that an individual 60 years of age or over should not receive an initial appointment to a lifetime judgeship in a Federal court unless he merits a rating of "Well qualified" or "Exceptionally Well Qualified" and is in excellent health and, in no event should he be eligible for such appointment after he has reached his 64th birthday. In the case of a Federal judge being considered for appointment to the United States Court of Appeals the Committee believes that a judge sixty years of age or

over should not receive such an appointment unless he merits the rating of "Well Qualified" and is in excellent health. It is the view of the Committee that ordinarily it is preferable not to appoint to the Court of Appeals, judges who are already eligible for retirement or who will be eligible for retirement within two years because such an appointment or the hope of such an appointment is likely to defer the transfer of older judges to senior judge status.

A Federal District Judge who has reached his 68th birthday should not receive an appointment to the United States Court of Appeals under any circumstances. The point at which the age of a candidate is determined for the purpose of applying the foregoing rules is the date of the letter from the Deputy Attorney General to the Chairman of the Committee requesting an Informal Report on that candidate.

Senator EAGLETON. I would like to comment on that, Mr. Chairman. In the first paragraph of the letter it does allow for the fact that a nominee over 60 can be determined to be either "exceptionally well qualified" or "well qualified," and I think it does rebut the assumption of Mr. Kleindienst that it is an automatic downgrading process.

Mr. KLEINDIENST. On the face of that letter Senator I think it would be contradictory to what I said.

The CHAIRMAN. Based on the ABA standards, then, Mr. Kleindienst, do you want to reconsider at the bottom of page 4 of your prepared statement where you said that each of the attorneys presented to the District Committee today has been evaluated by the same ABA standards that apply to lifetime judicial appointments and each has been found qualified by the American Bar Association to serve in the position for which he has been nominated?

Mr. KLEINDIENST. Without a further conference with Judge Walsh, in view of the specific language of those guidelines that you read there, I would say that in the case of two of these nominees for the court of appeals they are qualified, but they might in that respect deviate from the standards set by the American Bar Association.

I believe, however, that they come within it, because in the past, in my experience in dealing with the committee when they do not rate a person "qualified" because of age, they don't say he is just qualified. They say he is not qualified because of age.

In this case they rated two of the three qualified to serve, and one well qualified, as you have pointed out. So, therefore, I am taking the liberty to conclude that, in effect, what they do is downgrade their rating system one step because of the age factor. Had the one not been over 60, he probably would have been, or I believe he would have been deemed to be exceptionally well qualified, because the alternative is to say they are not qualified because of age.

As the record in this case shows, as you know, all three have been deemed qualified.

The CHAIRMAN. Do you think it is good policy to nominate for a 15-year term as a Federal judge a person who would necessarily retire in 31⁄2 years after serving only one-fifth of his term?

Mr. KLEINDIENST. Well, I think it is good policy to get the caliber of men that Mr. Pair, Mr. Reilly, and Mr. Yeagley are to participate in the formative years in the decisionmaking process of what, in effect, is going to be a Supreme Court for the District of Columbia, the only appeal from which is going to be the Supreme Court of the United States.

If Mr. Pair served in this court 31⁄2 years, and Mr. Yeagley 5 or 6 years and Mr. Reilly 7 or 8 years, knowing the kind of men they are and what they bring to the bench, I think in a short period of time, in this very formative period, they will make a significant contribution to the decisionmaking processes in the District of Columbia.

We believe that very firmly, and with conviction.

Mr. Pair's background as an attorney and his appellate work and his whole knowledge of the whole scope of the law in the District of Columbia in my opinion would recommend him for this bench if he would only be there for 6 months or

a year.

The CHAIRMAN. You mean you would nominate him for only 6 months of a 15year term because he is such an outstanding candidate?

Mr. KLEINDIENST. I don't think we would, but I think it would be worth it to the court if he sat there for 6 months of this year.

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