Application of 28 U.S.C. § 458 to Presidential Appointments of Federal Judges

Application of 28 U.S.C. § 458 to Presidential Appointments of

Federal Judges

Section 458 o f title 28 does not apply to presidential appointments o f judges to the federal judiciary.

December 18, 1995

M e m o r a n d u m O p in io n f o r t h e C o u n s e l t o t h e P r e s id e n t

On April 25, 1995, President Clinton nominated Mr. William A. Fletcher to

be a judge on the United States Court of Appeals for the Ninth Circuit. See 141

Cong. Rec. 11,243 (1995). While Mr. Fletcher’s nomination has been pending

before the United States Senate, questions have arisen as to whether his appoint­

ment would violate 28 U.S.C. § 458 because Mr. Fletcher’s mother, the Honorable

Betty B. Fletcher, has served as a judge on the same court since her appointment

in 1979. Section 458 of title 28 provides as follows: “ No person shall be

appointed to or employed in any office or duty in any court who is related by

affinity or consanguinity within the degree of first cousin to any justice or judge

o f such court.”

We have previously opined that 28 U.S.C. §458 does not apply to presidential

appointments of judges to the federal judiciary. See Memorandum for Eleanor

D. Acheson, Assistant Attorney General, Office of Policy Development, from

Richard L. Shiffrin, Deputy Assistant Attorney General, Office of Legal Counsel,

Re: Applicability o f 28 U.S.C. § 458 to Presidential Appointments o f Federal

Judges (Mar. 13, 1995). In light o f subsequent questions, you have asked whether

we adhere to that position. For the reasons that follow, we do.

A

Two bedrock principles of statutory construction guide our analysis. First, “ we

start, as we must, with the language of the statute.” Bailey v. United States, 516

U.S. 137, 144 (1995). Second, “ the meaning of statutory language, plain or not,

depends on context.” 1 Id. at 145. In this case, the particularly relevant constitu­

ents o f context upon which statutory meaning depends are the constitutional

framework within which all statutes are drafted and enacted, see, e.g., Gregory

v. Ashcroft, 501 U.S. 452, 460 (1991) (stating principle that statutes be read to

protect “ the usual constitutional balance” of power), the statutory language taken

as a whole, see, e.g., King v. St. Vincent’s Hosp., 502 U.S. 215, 221 (1991) (stating

1 As Learned Hand explained, “ words are n o t pebbles in alien juxtaposition; they have only a communal existence;

and not only does the meaning o f each interpenetrate the other, but all in their aggregate take their [meaning] from

the setting in which they are used.” NLRB v. Federbush Co., 121 F.2d 954, 957 (2d Cir. 1941); see also King

v. St. Vincent’s Hosp., 502 U.S. 215, 221 (1991) (quoting Federbush); Shell Oil Co. v. Iowa Dept, o f Revenue,

488 U.S. 19, 25 n.6 (1988) (same).

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the “ cardinal rule” that a “ statute is to be read as a whole” ), and the amendment

history of the statute, see, e.g., Bailey, 516 U.S. at 144 (taking account of amend­

ment history of 18 U.S.C. § 924(c)(1) to determine the meaning of the word

“ use” ). Based on our review, we conclude that the plain meaning o f the statute

precludes its application to presidential appointments to the federal judiciary.

We begin, as indicated, with the language of the statute. The current language

of §458 was adopted in 1911,2 amending a statute originally enacted in 1887.3

Quoting the language again, §458 in its current form provides that: “ No person

shall be appointed to or employed in any office or duty in any court who is related

by affinity or consanguinity within the degree of first cousin to any justice or

judge of such court.” The statute does not by its express terms apply to the Presi­

dent, nor does it expressly ijame judgeships as one of the offices to which a related

person may not be appointed. We believe that the inapplicability of this provision

to presidential appointments of federal judges is conclusively established by the

text of this provision, the history of its amendment, and the text of the Act of

1911 taken as a whole. We elaborate on these reasons in Parts II and III of this

memorandum, which to a considerable degree recapitulate the analysis contained

in our earlier memorandum. Before revisiting these points, however, in this part

we analyze a feature of the constitutional framework within which statutes must

be read that, in our view, also dictates the conclusion that §458 does not apply

to presidential appointments of federal judges, even if the text and its textual his­

tory did not conclusively establish the point.

Any argument that §458 does apply to presidential appointments of federal

judges depends entirely upon the fact that, while the statute refers to positions

to which related persons may not be appointed, it makes no mention at all of

the appointing authority, worded as it is in the passive voice. In this context,

however, this silence must lead to just the opposite conclusion, because of the

well-settled principle that statutes that do not expressly apply to the President

must be construed as not applying to the President if such application would

involve a possible conflict with the President’s constitutional prerogatives. See,

e.g., Franklin v. Massachusetts, 505 U.S. 788, 801 (1992). We can refer to this

principle as a clear statement rule, one that is very well-established and that dic­

tates the plain meaning of § 458.

Then-Assistant Attorney General William H. Rehnquist articulated this principle

without limiting it to cases in which application of the statute would raise a con­

stitutional question, opining that statutes “ are construed not to include the Presi­

dent unless there is a specific indication that Congress intended to cover the Chief

Executive.” Memorandum for Egil Krogh, Staff Assistant to the Counsel to the

President, from William H. Rehnquist, Assistant Attorney General, Office of Legal

Counsel, Re: Closing o f Government Offices in Memory o f Former President

2 Act o f Mar. 3, 1911, ch. 231, §297, 36 Stat. 1087, 1168 ("A c t o f 1911” ).

3 Act o f Mar. 3, 1887, ch. 373, §7 , 24 Stat. 552, 555.

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Eisenhower at 3 (Apr. 1, 1969) ( “ Rehnquist Memorandum” ). Even if this unquali­

fied statement o f the principle is overly broad, the narrower formulation given

above clearly covers §458, because its application to presidential appointments

to the federal judiciary would raise serious constitutional questions regarding the

President’s authority under the Appointments Clause, U.S. Const, art. II, § 2 , cl.

2, as we explain below. Therefore, under the precedents of the Supreme Court

as well as of the Department o f Justice, §458 may not be read as applying to .

presidential appointments.

The principle that general statutes must be read as not applying to the President

if they do not expressly apply where application would arguably limit the Presi­

dent’s constitutional role has two sources. First, it is a long-recognized “ cardinal

principle” o f statutory interpretation that statutes be construed to avoid raising

serious constitutional questions. See, e.g., Crowell v; Benson, 285 U.S. 22 (1932).

This canon of statutory construction is a cornerstone of judicial restraint in that

it ‘ ‘not only reflects the prudential concern that constitutional issues not be need­

lessly confronted, but also recognizes that Congress, like this Court, is bound by

and swears an oath to uphold the Constitution.” Edward J. DeBartolo Corp. v.

Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988).

The canon is equally applicable to executive branch interpretations. Appropriations

Limitation fo r Rules Vetoed by Congress, 4B Op. O.L.C. 731, 732 n.3 (1980).

The second source is the constitutional principle o f separation of powers. The

fundamental device by which the framers sought to prevent tyranny was the divi­

sion of power to prevent an excessive accumulation in any single repository. Thus,

the Constitution divides power between the federal and the state governments as

well as among the federal government’s three coordinate and independent

branches. See Gregory, 501 U.S. at 458. The clear statement rule exists in order

to protect “ th[is] ‘usual constitutional balance’ ” of power. See id. at 460 (quoting

Will v. Michigan Dept, of State Police, 491 U.S. 58, 65 (1989) (quoting

Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985))), Franklin, 505

U.S. at 801 (“ requiring] an express statement by Congress before assuming it

intended” to subject presidential action to judicial review); id. (“ As the APA

does not expressly allow review of the President’s actions, we must presume that

his actions are not subject to its requirements.” ). Given the central position that

the doctrines of federalism and separation of powers occupy in the Constitution’s

design, this rule also serves to “ assure[] that the legislature has in fact faced,

and intended to bring into issue, the critical matters” of the balance of power

among the three branches of the federal government, in the context of separation

of powers, and between the federal and state governments, in the context of fed­

eralism. See Gregory, 501 U.S. at 461; United States v. Bass, 404 U.S. 336, 349

(1971).

This clear statement rule has been applied frequently by the Supreme Court

as well as the executive branch with respect to statutes that might otherwise be

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susceptible of an application that would affect the President’s constitutional

prerogatives, were one to ignore the constitutional context. For instance, in

Franklin the Court was called upon to determine whether the Administrative

Procedure Act (“ APA” ), 5 U.S.C §§701-706, authorized “ abuse of discretion”

review of final actions by the President. The APA authorizes review of final

actions by “ agencies,” which it defines as “ each authority of the Government

of the United States.” 5 U.S.C. § 701(b)(1). From this definition, the APA

expressly exempts Congress, the courts, the territories, and the District of

Columbia government— but not the President.

Even though the statute defined agency in a way that could include the President

and did not list the President among the express exceptions to the APA, Justice

O’Connor wrote for the Court:

[t]he President is not [expressly] excluded from the APA’s purview,

but he is not explicitly included, either. Out of respect for the sepa­

ration of powers and the unique constitutional position of the Presi­

dent, we find that textual silence is not enough to subject the Presi­

dent to the provisions of the APA. We would require an express

statement by Congress before assuming it intended the President’s

performance of his statutory duties to be reviewed for abuse of

discretion.

505 U.S. at 800-01. To amplify, she continued, “ [a]s the APA does not expressly

allow review of the President’s actions, we must presume that his actions are

not subject to its requirements.” Id. at 801. If anything, the case for reading the

APA provision as applying to the President was stronger than is the case with

respect to §458, because the APA contains a list of express exceptions to its

broad coverage and that list does not include the President. One might have con­

tended that the omission of the President from a list o f persons excluded is suffi­

ciently clear evidence of a congressional decision to include him within the reach

of the APA to alter the otherwise applicable rule of constitutional context. To

the contrary, however, the Court affirmed the principle that the inclusion of the

President must be express.

In a case that is closely analogous and that involves the President’s appointment

power, the Supreme Court held that the Federal Advisory Committee Act

(“ FACA” ), 5 U.S.C. app. §2, does not apply to the judicial recommendation

panels o f the American Bar Association because interpreting the statute as

applying to them would raise serious constitutional questions relating to the Presi­

dent’s constitutional authority to appoint federal judges. See Public Citizen v.

United States D ep’t o f Justice, 491 U.S. 440 (1989). The FACA imposes open

meeting and reporting requirements on advisory committees, which it defines to

be any committee or similar group that is “ utilized by one or more agencies,

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in the interest o f obtaining advice or recommendations for the President.” 5

U.S.C. app. § 3(2)(c). Two public interest groups, Public Citizen and the Wash­

ington Legal Foundation, sought to have FACA applied to the ABA judicial

screening committees. The Court unanimously rejected the public interest groups’

argument. The majority ruled that while a “ straightforward reading,” Public Cit­

izen, 491 U.S. at 453, o f FACA would seem to require its application to the ABA

committee, the “ cardinal principle” o f statutory interpretation that a statute be

interpreted to avoid serious constitutional question drove the majority to interpret

FACA as not applying to the ABA committee. Id. at 465-67. Notably, the majority

stated, “ [o]ur reluctance to decide constitutional issues is especially great where,

as here, they concern the relative powers of coordinate branches of government,”

and “ [t]hat construing FACA to apply to the Justice Department’s consultations

with the ABA Committee would present formidable constitutional difficulties is

undeniable.” 4 Id. at 466.

A recent Supreme Court case that applied the clear statement rule in protecting

the constitutional separation of powers is Sale v. Haitian Centers Council, 509

U.S. 155 (1993). This case dealt with the extraterritorial application of the Refugee

Act.5 Prior to 1980, the act provided that the Attorney General was “ authorized

to withhold deportation of any alien within the United States” who was a refugee.6

In 1980, the statute was amended to delete the “ within the United States” lan­

guage and to make it mandatory that the Attorney General not deport the refugee.7

The petitioners, an organization advocating on behalf of Haitian refugees, plau­

sibly argued that, by deleting “ within the United States,” Congress plainly meant

to give the act extraterritorial application. See id. at 170. The Court rejected this

argument, holding that “ Acts o f Congress normally do not have extraterritorial

application unless such an intent is clearly manifested. That presumption has spe­

cial force when we are construing treaty and statutory provisions that may involve

foreign and military affairs for which the President has unique responsibility.”

Id. at 188.8

Sale is but another example o f the clear statement principle: Statutes will be

read to exclude what they do not explicitly include when the inclusionary reading

would involve a possible conflict with the President’s unique responsibilities, so

as potentially to upset the constitutional balance of powers. The President’s con­

stitutional appointment power, expressly assigned to him and him alone in Article

II, is similarly a unique responsibility of the President, one that has been recently

4 The three concurring justices reached the merits and found that application o f the FACA would violate the

Appointments Clause (as opposed to raising a serious question). 491 U.S. at 482-89 (Kennedy, J., concurring).

’ Refugee Act o f 1980, Pub. L. No. 9 6 -2 1 2 ,9 4 Stat. 102, 107.

6 Im m igration and N ationality Act of 1952, Pub. L. No. 82-414, §243(h), 66 Stat. 163, 214 (1952) (emphasis

added).

7 Pub. L. No. 96 -2 1 2 , §203(e), 94 Stat. at 107.

8 To the sam e effect, see American Foreign Serv. Ass’n v. Garfinkel, 490 U.S. 153, 161 (1989).

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termed a “ central feature” of the President’s constitutional role under Article II.

Freytag v. Commissioner, 501 U.S. 868, 902 (1991) (Scalia, J., concurring).

In addition to the numerous Supreme Court precedents,9 this Department has

frequently applied the clear statement rule in the context of the separation of

powers between the executive and legislative branches. For example, we applied

this rule to a closely analogous question. We were asked whether the Age

Discrimination in Employment Act, 29 U.S.C. §§621-634 (“ ADEA” ), prohibits

the President from considering the age of judicial candidates when determining

whom to nominate for federal judgeships. See Judges— Appointment— Age

Factor, 3 Op. O.L.C. 388 (1979). We concluded that the ADEA should not be

read to apply to the presidential appointment of federal judges:

The power to appoint Federal judges, who hold office on good

behavior, is by tradition and design one of the most significant

powers given by the Constitution to the President. It provides one

of the few administrative mechanisms through which the President

can exert a long-term influence over the development and adminis­

tration of law in the courts. The President’s present power to exert

that influence to the fullest by preferring candidates for appointment

who are likely to have long, rather than short, careers on the bench

is therefore a matter of constitutional significance. Whether Con­

gress could deny the President that power by requiring him to dis­

regard utterly the age of candidates for appointment has never been

considered by the courts, but because of the gravity of the constitu­

tional questions it raises, we would be most reluctant to construe

any statute as an attempt to regulate the President’s choice in that

way, absent a very clear indication in the [ADEA].

Id. at 389.

In another important instance, Congress sought to apply the criminal contempt

of Congress statute against the administrator of the Environmental Protection

Agency when she asserted a claim of executive privilege on behalf of the Presi­

dent. That statute has a broad formulation that is similar to the formulation of

§458. Specifically, it applies to “ [e]very person who ha[s] been summoned as

a witness by the authority of either House of Congress to give testimony or to

produce papers.” 2 U.S.C. § 192.

9 The foregoing discussion analyzes only a sample o f these precedents. Nixon v. Fitzgerald , 457 U.S. 731 (1982),

is yet another such example. A former executive branch employee brought a variety o f claims against former President

Nixon arising from the em ployee's termination. The Court held that the President was immune from suit because

Congress had failed to create a cause o f action expressly against the President o f the United States, stating 44[w]e

consider this immunity a functionally mandated incident of the President's unique office, rooted in the constitutional

tradition o f the separation o f powers and supported by our history.” Id. at 749; see also id. at 748 & n.27. Other

examples include United States ex rel. French v Weeks, 259 U.S. 326, 332 (1922), and Tenney v. Brandhove, 341

U.S. 367, 376(1951).

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We concluded that, despite the broad language, the criminal contempt of Con­

gress statute does not apply to the President or presidential subordinates who assert

executive privilege. See Prosecution fo r Contempt o f Congress o f an Executive

Branch Official Who Has Asserted a Claim o f Executive Privilege, 8 Op. O.L.C.

101 (1984). First, we examined the legislative history o f the contempt statute and

determined that nothing in that history expressed an intent to apply the statute

in the context of assertions of executive privilege. Id. at 129-32. We then cited

the general rule that statutes are to be construed to avoid serious constitutional

questions and further elaborated that, “ [w]hen a possible conflict with the Presi­

dent’s constitutional prerogatives is involved, the courts are even more careful

to construe statutes to avoid a constitutional confrontation.” Id. at 132. We then

discussed how application of the contempt statute against an assertion of executive

privilege would seriously disrupt the balance between the President and Congress.

Because Congress had no “ compelling need” to create this disruption, “ the con­

stitutionally mandated separation of powers requires the statute to be interpreted

so as not to apply to Presidential assertions o f executive privilege.” Id. at 140.

Then-Assistant Attorney General William Barr opined that the Anti-Lobbying

Act, 18 U.S.C. §1913, does not apply fully against the President. See Constraints

Imposed by 18 U.S.C. §1913 on Lobbying Efforts, 13 Op. O.L.C. 300, 304-06

(1989). The Anti-Lobbying Act prohibits any appropriated funds from being “ used

directly or indirectly to pay for any personal service, advertisement, telegram, tele­

phone, letter, printed or written matter, or other device, intended or designed to

influence in any manner a Member of Congress.” 18 U.S.C. § 1913. The statute

provided an exception for communications by executive branch officers and

employees if the communication was made pursuant to a request by a member

of Congress or was a request to Congress for legislation or appropriations. Assist­

ant Attorney General Barr concluded that applying the Act as broadly as its terms

might otherwise allow would raise serious constitutional questions as an infringe­

ment of the President’s Recommendations Clause power.

It is also the long-standing position of the Department of Justice that 18 U.S.C

§208 does not apply to the President. That statute prohibits any “ officer or

employee of the executive branch” from “ participat[ing] personally and substan­

tially” in any particular matter in which he or she has a personal financial interest.

Id. In the leading opinion on the matter, then-Deputy Attorney General Laurence

Silberman first determined that the legislative history disclosed no intention to

cover the President and doing so would raise “ [s]ome doubt . . . as to the con­

stitutionality’ ’ of the statute, because the effect o f applying the statute to the Presi­

dent would be to impose a qualification on his serving as President. See Memo­

randum for Richard T. Burress, Office of the President, from Laurence H. Silber­

man, Deputy Attorney General, Re: Conflict o f Interest Problems Arising out o f

the President’s Nomination of Nelson A. Rockefeller to be Vice President under

the Twenty-Fifth Amendment to the Constitution at 2, 5 (Aug. 28, 1974).

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Application o f 28 U.S.C. §458 to Presidential Appointments o f Federal Judges

In the Rehnquist Memorandum, we considered a statute the text of which is

similar to §458. 5 U.S.C. §6105 provides that, “ [a]n Executive department may

not be closed as a mark to the memory of a deceased former official of the United

States.” Then-Assistant Attorney General William Rehnquist first reviewed the

legislative history and determined that there was nothing to indicate that Congress

meant to prohibit the President from closing a department as a mark to the

memory of a deceased former official and that instead the purpose of the act

was to prevent department heads from closing their departments. He then noted

the general rule that statutes “ are construed not to include the President unless

there is a specific indication that Congress intended to cover the Chief Executive.”

Rehnquist Memorandum at 3.

In summary, there are numerous precedents of the Supreme Court as well as

of the Department of Justice 10 holding that a statute that does not by its express

terms apply to the President may not be applied to the President if doing so would

raise a serious question under the separation of powers.11 We believe there to

be no dispute that such a serious question would be raised were §458 read to

apply to presidential appointments to the federal judiciary. In the next section

we amplify on the reasons for that conclusion.

B

Congressional attempts to limit the class of persons from whom the President

may appoint the highest officers of the government, including judges, raise serious

constitutional concerns. The Appointments Clause provides that the President

10 Again, the foregoing discussion covers a small sample o f the Department’s applications o f this principle. Other

significant examples include: The President's Compliance with the 'Timely Notification’ Requirement o f Section

501(b) o f the National Security Act, 10 Op. O.L.C. 159 (1986); Inter-Departmental Disclosure o f Information Sub­

mitted under the Shipping Act o f 1984, 9 Op. O.L.C. 48 (1985); Removal o f Members o f the Advisory Council

on Historic Preservation, 6 Op. O.L.C. 180, 185 n.7 (1982).

11 The clear statement principle we have identified does not apply with respect to a statute that raises no separation

of powers questions were it to be applied to the President. So, for instance, the Department o f Justice has construed

the federal bribery statute as applying to the President even though it does not expressly name the President. Memo­

randum for Laurence H. Silberman, Deputy Attorney General, from Robert G. Dixon, Jr., Assistant Attorney General,

Office of Legal Counsel, Re: Whether Governor Rockefeller, I f Appointed as Vice President, Is Required to Execute

a Blind Trust in Order to Avoid Possible Violation o f 18 U.S.C. §208 at 2 (Aug. 20, 1974). 18 U.S.C §201 establishes

that “ (w]hoever, being a public official” receives a bribe commits a criminal offense. Id. §201(c)(l)(B ). “ Public

official” is defined as a “ M ember o f Congress, Delegate, or Resident Commissioner, either before or after such

official has qualified, o r an officer o r employee o r person acting for or on behalf of the United States . . . in

any official function . . . . * ’ Id. §20 1 (a)(l). Application of §201 raises no separation of powers question, let alone

a serious one. The Constitution confers no power in the President to receive bribes; in fact, it specifically forbids

any increase in the President’s compensation for his service while he is in office, which is what a bribe would

function to do. See U.S. Const, art. II, § 1, cl. 7. Moreover, the Constitution expressly authorizes Congress to impeach

the President for, inter alia, bribery. Id. §4. The Constitution further provides that any party impeached and convicted

may “ nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to L aw .” Id.

art. I, §3. We also opined that the Federal Advisory Committee Act applies to the Department of Justice Journal

Board, because this application raises no separation o f powers concerns. See Application o f Federal Advisory Com­

mittee Act to Editorial Board o f Department o f Justice Journal, 14 Op. O.L.C. 53 (1990).

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shall nominate, and by and with the Advice and Consent of the

Senate, shall appoint Ambassadors, other Public Ministers and Con­

suls, Judges o f the supreme Court, and all other Officers of the

United States . . . but the Congress may by Law vest the Appoint­

ment o f such inferior Officers, as they think proper, in the President

alone, in the Courts of Law, or in the Heads of Departments.

U.S. Const, art. II, §2, cl. 2. Because the Constitution gives the President alone

the power to nominate non-inferior officers o f the United States, any attempt by

Congress to restrict his choice of nominees, otherwise than by the Senate’s

refusing its consent to a nomination, is questionable under the Constitution. We

hasten to add that we do not take a final position on the difficult question of

whether, and under what circumstances, Congress has authority to impose a quali­

fication requirement on a constitutional office. It is sufficient for the purposes

of this memorandum to demonstrate that applying a restriction such as that con­

tained in § 458 to presidential appointment of federal judges would at a minimum

raise a serious constitutional question. This office has not had the occasion to

opine on this issue, and we cite previous statements for the sole purpose of dem­

onstrating the difficulty and seriousness of the questions that the issue raises.

As the United States Court o f Appeals for the District of Columbia Circuit

recently wrote, “ Congressional limitations— even the placement of burdens — on

the President’s appointment power may raise serious constitutional questions. . . .

Presidents have often viewed restrictions on their appointment power not to be

legally binding.” Federal Election Comm’n v. NRA Political Victory Fund, 6 F.3d

821, 824 (D.C. Cir. 1993) (Silberman, J.), cert, dismissed, 513 U.S. 88 (1994).

To support this conclusion, the court cited, as examples, statements issued by

President Bush upon signing various pieces of legislation. See Statement on

Signing the Cranston-Gonzalez National Affordable Housing Act, 2 Pub. Papers

of George Bush 1699, 1701 (Nov. 28, 1990) ( “ National Affordable Housing Act

Statement” ); Statement on Signing the National and Community Service Act of

1990, 2 Pub. Papers of George Bush 1613, 1614 (Nov. 16, 1990); Statement on

Signing the Intelligence Authorization Act, Fiscal Year 1990, 2 Pub. Papers of

George Bush 1609, 1610 (Nov. 30, 1989). President Bush asserted, for example,

that limitations set out in legislation “ do[] not constrain the President’s constitu­

tional authority to appoint officers o f the United States, subject only to the advice

and consent o f the Senate.” National Affordable Housing Act Statement at 1701,

quoted in part in NRA Political Victory Fund, 6 F.3d at 824-25.12

12The position taken by President Bush w as based on the principles set out in Justice Kennedy’s concurring

opinion in Public Citizen v. United States Dep’t o f Justice, 491 U.S. 440 (1989), joined by C hief Justice Rehnquist

and Justice O ’Connor. “ By its term s,” Justice K ennedy wrote, “ the [Appointments] Clause divides the appointment

power into tw o separate spheres: the President's pow er to 'nom inate,’ and the Senate’s pow er to give or withhold

its ‘Advice and Consent.’ No role whatsoever is given either to the Senate or to Congress as a whole in the process

of choosing the person who will be nominated fo r appointment.” Id. at 483. Furthermore, “ where the Constitution

by explicit text commits the pow er at issue to th e exclusive control o f the President, we have refused to tolerate

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Application o f 28 U.S.C. §458 to Presidential Appointments o f Federal Judges

There has been a particular concern about applying qualifications for appoint­

ments o f Article III judges. In 1979, for example, our Office rejected the argument

that the ADEA applied to the President’s choice of nominees for judgeships.

Judges— Appointment— Age Factor, 3 Op. O.L.C. 388 (1979). We there accepted

that Congress might impose some qualifications on some constitutional offices,

but nevertheless noted that applying the ADEA to judicial nominations would

constrain the President’s ability to exercise a long-term influence on the develop­

ment of the law. We concluded that, “ because o f the gravity of the constitutional

questions [a requirement to ignore the age of potential nominees] raises, we would

be most reluctant to construe any statute as an attempt to regulate the President’s

choice in that way.” Id. at 389. As we stressed, “ [t]he 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.” Id.

The Constitution vests in the President the power to nominate judges and vests

in the Senate the power to give, or refuse, its advice and consent to the nomina­

tions. Without taking a position on whether, and under what circumstances, Con­

gress has authority to impose qualification requirements on constitutional offices,

it is clear that, if a Congress tried to bind future Presidents and future Senates

by imposing statutory constraints on eligibility, such legislation would raise

serious constitutional questions.

n

The clear statement rule settles the meaning of §458. Section 458 does not

apply to presidential appointments of federal judges. Even without applying this

constitutionally based principle, however, analysis of the text of § 458, its prede­

cessor, and the text of the Act of 1911 taken as a whole, establishes the same

result. That result is further supported by every available piece of contempora­

neous, extra-statutory evidence of the understanding of members o f Congress, as

well as by a consistent practice of non-application of the statute to the appointment

of federal judges. In this part, we discuss the meaning of §458 as it might be

ascertained on the face of the statutes themselves, without reference to the clear

statement principle. In the subsequent part, we review the contemporaneous

congressional understandings of the statute’s meaning. Finally, we review some

of the instances in which related persons within the meaning of the statute have

been appointed to the federal bench by the President.

As indicated earlier, the present statute appears to have originated as Act of

Mar. 3, 1887, ch. 373, §7, 24 Stat. 552, 555. In its original form, the provision

stated that:

any intrusion by the Legislative Branch.” Id. at 485. With regard to the highest officers of the government, therefore,

the President “ has the sole responsibility” for making nominations, id. at 487, and Congress may not intrude.

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no person related to any justice or judge of any court of the United

States by affinity or consanguinity, within the degree of first cousin,

shall hereafter be appointed by such court or judge to or employed

by such court or judge in any office or duty in any court of which

such justice or judge may be a member.

Id. (emphasis added). In that version, the statute referred specifically to appoint­

ments by the courts or judges, and could not be understood to encompass presi­

dential appointments as well. In our constitutional scheme, judicial appointments

are not made by judges, but rather have always been vested in the President with

the advice and consent of the Senate.

The statute was next codified as Act of Aug. 13, 1888, ch. 866, §7, 25 Stat.

433, 437. In that form too, it prohibited only the appointment of any person related

to any federal justice or judge within the degree of first cousin “ by such court

or judge.”

This provision was repealed by the Act o f Mar. 3, 1911, ch. 231, §297, 36

Stat. 1087, 1168.13 The language substituted for the repealed provision did not,

in terms, refer only to appointment “ by such court or judge.” Instead, it stated:

No person shall be appointed to or employed in any office or duty

in any court who is related by affinity or consanguinity within the

degree o f first cousin to the judge of such court.

Id. §67, 36 Stat. at 1105.

The repeal and re-enactment in 1911 left the description of the offices or duties

to which related persons may not be appointed unchanged. It did alter the descrip­

tion of the persons who may not make such appointments. Whereas prior to 1911

only a “ court or judge” was prohibited from appointing related persons to such

offices or duties, after 1911, the prohibition was simply that no related person

could be appointed to such offices or duties. The evident purpose of the change

was to remove an obvious loophole. Prior to 1911, the clerk of court, or the chief

bailiff, or the chief stenographer, or any other official who worked in a court

could appoint relatives o f sitting judges to positions on his or her staff, without

13The A ct o f Mar. 3, 1911, was designed to restructure the federal judicial system. A s Senator, later Justice,

Sutherland explained, the legislation was:

fram ed upon the theory that we shall hereafter have but one court o f original jurisdiction, instead o f two,

as w e have at present . . . . [W]e have to-day two separate and distinct courts of jurisdiction— a circuit

court o f the U nited States and a district co u rt o f the U nited States. Jurisdiction has been conferred upon

the district court in a class o f cases which m ight as well have been conferred upon the circuit court and

jurisdiction has been conferred upon the circu it court which might as well have been conferred upon the

district court . . . . There is absolutely n o reason why the circuit court should possess a certain class

o f jurisdiction rather than that it should b e possessed by the district court. The vital thing is to have a

court o f original jurisdiction for the trial o f cases, and then a court o f appellate jurisdiction, which may

review the decisions o f the trial court

46 C ong. Rec. 2137 (1911).

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Application o f 28 U.S.C. §458 to Presidential Appointments o f Federal Judges

violating the statute. Because such individuals as these might possibly be suscep­

tible to influence by sitting judges, the predecessor statute seemed to permit an

evasion of the statute’s anti-nepotistical purposes through the expedient of having

a non-judge who worked in the court appoint a judge’s relative.

Beyond closing this appointment loophole, the statute remained otherwise intact.

Because the language of the statute describing the offices or duties to which

related persons may not be appointed remained the same, no change was made

in the class of offices or duties covered by the statute — a class that at no time

included judges.

This conclusion is reinforced by a rule of construction that was written into

the Act of 1911 itself, which reads as follows:

[t]he provisions of this Act, so far as they are substantially the same

as existing statutes, shall be construed as continuations thereof, and

not as new enactments, and there shall be no implication of a

change o f intent by reason o f a change of words in such statute,

unless such change of intent shall be clearly manifest.

Id. §294, 36 Stat. at 1167.

With respect to its description of the offices or duties to which related persons

may not be appointed, section 297 of the Act is “ substantially the same” as prior

law. Nor is any “ change of intent . . . clearly manifest” by reason of the lin­

guistic change from the earlier provision. Accordingly, following the rule of

construction set forth in the statute itself, we find that it does not vary prior law —

judgeships were not in that class prior to 1911, and they are not in that class

subsequent to 1911.14

14 We note that our reading does not violate the maxim o f statutory construction that words in a statute should

not be construed so as to render them meaningless. It is true that the vast majority o f the positions to which §458

applies are “ em ploym ents” rather than “ offices.” For a discussion o f the difference between an employment and

an office, see Untied Slates v. Hartwell, 73 U.S. (6 Wall.) 385 (1867); United States v. Germaine, 99 U.S. 508

(1878); United Slates v. Maurice, 26 F. Cas. 1211 (C.C.D. Va. 1823) (No. 15,747) (Marshall, C ircuit Justice). Never­

theless, the Supreme Court long ago concluded that the clerk o f a district court is an officer in the constitutional

sense, Ex Parte Hennen, 38 U.S. (13 Pet.) 230 (1839), and has recently reaffirmed that view, see Morrison v. Olson,

487 U.S. 654 (1988). This office has traditionally been filled by an appointment “ by [a] couit[] o f law,” specifically

by the chief judge o f the relevant district o r circuit. We believe that the provision would continue to apply to appoint­

ments to the office o f clerk by a federal judge.

We also note that our view avoids a serious question regarding the legality o f the recent designation o f District

Judge Gordon Thompson, Jr., to sit by designation on a panel o f the United States Court o f Appeals for the Ninth

Circuit with his brother. Judge David Thompson. See Howard Mintz, Nepotism Law Threatens Nomination; Mother

and Child Reunion on Bench?, Legal Times, Dec. 11, 1995, at 8. Because we do not believe that §458 applies

to the office o f judge, it is o u r conclusion that Chief Judge J. Clifford W allace could not have violated § 4 5 8 by

exercising his authority under 28 U.S.C § 292(a) to designate District Judge Thompson to sit as a Judge on a Ninth

Circuit panel with his brother.

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in

We have reviewed the legislative debate over the Act of 1911, and have found

no evidence that the textual alteration of the earlier statutory language was

intended to work any change in the class of offices or duties covered, and certainly

none that it was meant to reach presidential appointments to the federal bench.

Moreover, contemporaneous and near contemporaneous evidence of Congress’s

own understanding clearly substantiates that Congress did not intend to extend

the scope of the earlier prohibition to include judicial appointments by the Presi­

dent. Section 297 of the Act of Mar. 3, 1911, was to go into effect on January

1, 1912, abolishing the circuit courts and causing the district courts to succeed

them, so that clerks would have to be appointed for the district courts. Shortly

before the law went into effect, it was pointed out in Congress that these changes

“ would prevent any man who is related within certain degree by affinity or con­

sanguinity to the district judge from being appointed clerk.” 48 Cong. Rec. 309

(1911) (remarks of Rep. Clayton). Thus, even incumbents who had not been

appointed to circuit court clerkships by judicial relatives would be ineligible to

be appointed to clerkships in the succeeding district courts if it happened that

their close relatives sat on those district courts. Several members of Congress

objected to that unforeseen and unintended outcome. Legislation was introduced,

and eventually adopted, to “grandfather in” such incumbents.15

In the course of the House debate on this amendatory measure, several members

adverted to the prohibition of the then-recent prior law. Congressman Mann

described section 297 as “ providing that the judge o f the Federal court shall not

be permitted to appoint his first cousin an officer o f the court . . . . It should

be the policy of the country to uphold the dignity o f the Federal bench, to guard

against the possibility o f favoritism on the part o f the judges because of close

kinship.” 48 Cong. Rec. at 310 (remarks of Rep. Mann) (emphasis added). Simi­

larly, in colloquy, Mr. Hardy asked if the proposed amendment “ opposes the

appointment o f relatives by public officials?” , and Mr. Bartlett, referring to sec­

tion 297, responded that “ [t]he original section, I apprehend, had that purpose

in view.” Id. Plainly, then, the members of the House interested in the amendment

in the December 1911 debate understood that the March 1911 enactment had only

restricted the power o f judges to appoint their near kin to positions with their

courts. Although these remarks occurred after the enactment of section 297, they

were made only a few months after that section had become law, and thus provide

useful evidence of what the enacting Congress intended by it.

Later codifications carried forward the language adopted in 1911, with changes

not relevant here. See Act of June 25, 1948, ch. 646, §458, 62 Stat. 869, 908;

15 See Act o f Dec. 21, 1911, ch. 4, 37 Stat. 46 ( “ [N]o such person at present holding a position or employment

in a circuit court shall be debarred from sim ilar appointment or em ployment in the district court succeeding to

such circuit court jurisdiction.” ).

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Application o f 28 U.S.C. § 458 to Presidential Appointments o f Federal Judges

H.R. Rep. No. 80-308, at A55 (1947). In light of this legislative history, we see

no reason to suppose that Congress ever intended to do more than to make fully

effective the original prohibition against nepotistical appointments by judges, and

that the sole function of the change of 1911 was to close a loophole in the original

statutory scheme.

rv

Finally, we note that the consistent practice since the present version of §458

was enacted in 1911 has been to construe the statute as not applying to presidential

appointments. On at least three occasions since 1911, the President has appointed

and the Senate has confirmed relatives within the statutory degree of consanguinity

to the same court. In 1914, President Woodrow Wilson, just three years after

the enactment of §458 in its present form, appointed Augustus Hand to be a

District Judge for the Southern District of New York, even though his first cousin,

Learned Hand, had been a District Judge of that court since 1909. In 1927, Presi­

dent Coolidge elevated Judge Augustus Hand to be a Circuit Judge on the United

States Court of Appeals for the Second Circuit, even though Judge Learned Hand

had been appointed to that court three years earlier. More recently, in 1992, Presi­

dent Bush appointed and the Senate confirmed Judge Morris Arnold to be a Circuit

Judge on the United States Court of Appeals for the Eighth Circuit, although his

brother, Judge Richard Arnold, was already a member of that body.

In addition, if the practical construction of §458 by the President and the Senate

were to hold that it applies to presidential appointments, there would be a signifi­

cant question as to the validity of a number of appointments where one relative

served on an appeals court while another served on a district court. Specifically,

it is not clear whether, for purposes of §458, a district court is a component

of the court of appeals for the circuit in which the district is located. Most recently,

Diana Motz was confirmed and appointed to the United States Court of Appeals

for the Fourth Circuit in 1994, while her husband, Frederick Motz, was a judge

for the District of Maryland.

We are not aware of anyone ever proposing that §458 applies to presidential

appointments of federal judges. In this light, applying §458 to presidential

appointments of federal judges would represent a novel construction of the statute.

We do not reject this construction, however, because it is novel. We reject it

because it is contrary to the statute’s language, structure, and purpose, as well

as the consistent practice under that statute from the date of its enactment.

WALTER DELLINGER

Assistant Attorney General

Office o f Legal Counsel

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