CHIEF JUSTICE Warren E. Burger was quite right in putting pressure on Congress to pass quickly the omnibus judgeship bill. It has been stalled in a conference committee ever since the House passed its version more than five months ago.The conferees have agreed to the number of new judgeships that will be created (152) but are deadlocked on a provision that would split the present Fifth Circuit Court of Appeals into two new courts. While the conferees argue about that, conditions in almost all the federal courts continue to deteriorate. The chief justice has now warned that, unless the bill is passed this year, trials of civil cases may simply come to a halt in some parts of the country.
The Fifth Circuit question is a difficult one. Unless its boundaries are changed, that circuit court will have 26 judges instead of 15 after this bill is passed. By almost any standard, 26 judges are too many in a single appellate court, partly because of administrative problems and partly because cases occasionally arise in which all the active judges must participate. But there is sharp disagreement on how to break up the circuit, composed of Texas, Louisiana, Mississippi, Alabama, Georgia and Florida.
One possible split, pushed through the Senate by Sen. James O. Eastland (D-Miss.), would put Texas and Louisiana in one circuit and the other four states in another. The House wisely rejected that proposal because of the parochial nature of the courts it would create. The two-state court would specialize in oil and gas cases while the four-state, Deep South court might well be dominated by judges already on the bench who have demonstrated an unsympathetic view of civil-rights cases.
A possible compromise, suggested at a meeting of the conferees Wednesday, would keep the present circuit intact but divide it into two divisions for administrative purposes with the judges rotating between the divisions. The problem of having 26 judges meet to decide major cases could be resolved by changing the law to permit a selected group of, say, nine to hear those cases.
If the conferees cannot agree on something along these lines, they should simply override the wishes of Sen. Eastland, who wants the matter settled before he leaves Congress in January, and postpone the question until another year. They have already agreed to do just that with the Ninth Circuit, where a similar problem exists. Disagreement over the Fifth Circuit simply must not be allowed to prevent action on adding judges to the bench this year. It has been almost nine years since any new judgeships were created and the work of the courts has increased enormously in that time. Since the need for some new judges became clear almost five years ago, Congress has simply fiddled around with the subject - first because it wanted to save the nominations for a Democratic president, later because its members couldn't agree on which states should get how many new judges, and now because of the Fifth Circuit problem. Congress itself is responsible for the existing conditions in the courts, which Chief Justice Burger aptly described as a "crisis" and "desperate" in his letter to the conferees. That letter should convince them of the necessity of getting a bill passed this month or next. The Fifth Circuit, if necessary, can wait, the courts can't.