The CHAIRMAN. Let me again refresh your recollection. Twentyseven 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 matter

The 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 in 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 60, you shouldn't be nominated. How do you rationalize your statement that you are following ABA recommendations when two out of 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?

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 the 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 to 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 15-year 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. The CHAIRMAN. Senator Bible, do you have any questions?

Senator BIBLE. No, Mr. Chairman. I think you have covered it very well. I know in the time that I was privileged to be chairman of the District Committee, which was for quite a few years, we had many confirmation hearings, and I think we treated the Democrats and Republicans alike when their names were sent down, because we were interested in getting the highest possible judiciary for the District and the Nation.

Do you give any weight to a man's political affiliation?

Mr. KLEINDIENST. Most of these, I didn't know what their politics. were until their recommendation had been determined by the Attorney General. I have been subsequently informed that five or six of the 18 are Democrats and the rest are Republicans.

Senator BIBLE. So you don't particularly look at their partisan background in your department?

Mr. KLEINDIENST. No, sir. I think I only knew the political affiliation of one person on that list at the outset, as a fact.

The CHAIRMAN. I know a number of friends out in the audience who are nominees, and I find that some of them are Republicans,

and I thought they were Democrats. But I think that is probably the way it spins out, and I am not going to say that I am disillusioned. I am just a little disappointed. [Laughter.]

Senator BIBLE. I am sure they are high-caliber men, interested in the highest caliber for our judiciary.

How many of the total you have before us have been actively engaged in the private practice of law here in the metropolitan area, or elsewhere, actually, but primarily the metropolitan area?

Mr. KLEINDIENST. Senator, I don't have all their biographies here. Many of these nominees have had most of their experience in the District of Columbia as Federal or government lawyers.

Senator BIBLE. You say most of them have had?

Mr. KLEINDIENST. Many of the nominees, I say.

Senator BIBLE. I am not indicating that is bad. I guess the metropolitan area has more lawyers per capita than anywhere in the world. I suppose that government being what it is in the District of Columbia that we have about as much government as anywhere in the world, don't we?

Mr. KLEINDIENST. Right. I would like to make a comment on that, Senator Bible, because I think it is a good question, particularly with respect to the nominees for the civil court.

I am sure you are aware that a lawyer who is a trial lawyer for the Federal Government, either in the Department of Justice or Internal Revenue, or wherever he might be, can get a more intensive, comprehensive experience as a trial lawyer in a shorter period of time than perhaps most lawyers who are engaged in private practice.

We also feel that in a Federal city that the career Government trial lawyer should think that there is something else in terms of personal advancement in his career than just remaining as a career Government lawyer.

I know that the Attorney General and myself share the conviction that one of the reasons why the Department of Justice is as attractive as it is is because of dedicated life-long effort of many wonderful Federal trial lawyers. Because this is the Federal city, and because we are looking for excellence as trial lawyers, we were glad to be able to recommend to this committee several of these nominees who have had this extensive experience and background in the Federal Government. We hope that as a result of doing so, it will further our efforts to enlist young lawyers who get out of law school to come with the Government as trial lawyers so that their country will have the benefit of that kind of dedicated service.

Senator BIBLE. I think that is an excellent standard.

Now, applying that standard to the nominees, whether they have been engaged in private practice or engaged in Government practice, how many among the trial judge nominees have actually had trial work?

Mr. KLEINDIENST. If they didn't have substantial trial experience, Senator Bible, the American Bar Association Standing Committee on the Judiciary would not deem them to be qualified. That is one of the guidelines that I think is included there, that they have to have substantial trial experience, and to the American Bar Association that is a meaningful concept.