The first major federal bankruptcy legislation in 30 years is being held up by an eleventh-hour attempt of Chief Justice Warren Burger to delay it.
Last Thursday, as House and Senate votes neared on the bill, the Chief Justice made phone calls to Sen. Malcolm Wallop (R.Wyo.), one of the sponsors, and Sen. Strom Thurmond (R.N.C.) ranking Republican member of the Judiciary Committee, asking them to delay consideration until new issues had been aired. An aide said Thurmond agreed to the action "as a personal favor to the Chief Justice."
Burger reportedly expressed objections to the House-Senate compromise version, which calls for new bankruptcy judges to be adjincts of the federal appeals courts. These judges would be represented on the Judicial conference, the housekeeping agency of the federal judiciary.
"It's a little like allowing copy aides to have an equal say at an editorial conference with senior editors," a Judiciary Committee staff member said, in an effort to explain why the judicial hierarchy objects to elevating currently lower-ranking bankruptcy referees.
The Judicial Conference, which is authorized by Congress to give its opinion on bills affecting the court system, has expressed its opposition many times during debate over bankruptcy legislation. Supreme Court spokesman Barrett McGum said that Burger made calls to legislators as chairman of the conference. Wallop expressed surprise at the action.
Under the doctrine of seperation of powers it is rare for the Chief Justice to intervene in as direct a fashion. Earlier this year, Burger wrote in a decision holding up a dam because of an endangered species, the snail darter, that: "While it is emphatically the province and duty of the judicial department to say what the law is, it is equally - and emphatically - the exclusive province of the Congress not only to formulate legislative policies . . . but also to establish their relative priority for the nation . . ."
In 1972, Burger allegedly sent one of his top aides to the Hill to lobby against changes in consumer legislation. At the time he denied charges of meddling but refused to say whether or not he had authorized the aide's trip. The aide, U.S. Courts Administrator Rowland F. Kirks, said later the Chief Justice had not known about the visit to the office of the Speaker Carl Albert unti reading about it in the newspapers.
A judiciary Committee staff member said yesterday the current incident began last Thursday when the Chief Justice called one of the bill's sponsors before a House vote. The House was voting on a compromise bill, on which agreement had been reached two days earlier that bankruptcy judges would be appointed by the President and confirmed by the Senate. They would serve 14 year terms and receive $50,000 a year.
Burger asked Eastland (D-Miss.) chairman of the Senate committee: to let he Judicial Conference be heard on the new version before the Senate vote, tentatively scheduled for the same day.
At the moment, the outcome seems to depend on Thurmond. A spokesman for Sen. Dennis DeConcini (D-Ariz.) said there would be no further negotiations between the Congress and the Chief Justice because DeConcini considered dealing with the third branch of government to be a violation of the doctrine of separation of powers.