The Chief justice of the United States could fill the District of Columbia federal courts with judges personally approved by him, under the terms of a bill passed recently by the Senate.
The procedure, in effect, though possibly not by design, would skirt the ordinary screening process for federal judges.
A judge would be able sit on the prestigious U.S. Court of Appeals for the District of Columbia or on the District Court here without presidential appointment, without approval by the local bar, without political consultation and without Senate confirmation for the specific assignment.
The provision, a small part of a major "court improvement" bill, achieves its impact in a complicated and indirect fashion apparently not fully appreciated by the Senate Judiciary Committee or the Senate, which passed it in October. Committee sources said the provision was unimportant to the overall bill and would be dropped if there were "the slightest flap" over it. The bill is before the House Judiciary Committee.
Senate committee sources said they were certain the proposal was not Chief Justice Warren Burger's idea, and they doubted he was fully aware of it. A Burger spokesman declined comment.
Yesterday, Leo Levin, director of the Federal Judicial Center, which is headed by the chief justice, took responsibility for the proposal. "I guess I am the cookie who suggested it," he said. "It was little old me." He added quickly that court-packing was never the intent of the proposal.
The intent was to encourage sitting judges around the country to accept three important jobs in the judicial systems: Administrative assistant to the chief justice, director of the Federal Judicial Center or director of the Administrative Office of the Courts.
The chief justice has total control over appointment of his administrative assistant and substantial control over who will fill the other two jobs.
Under the bill, a federal judge from anywhere in the country could accept one of these jobs temporarily.
Upon leaving the job, the judge would have two options: He or she could return to the bench in his or her old district or circuit, or the judge could join the D.C. Circuit Court of Appeals or the District Court as a full member of the bench.
The potential result is undisputed: Judges picked by Burger for these other jobs could join the D.C. bench. If there were no vacancy on the D.C. bench, the judge would become an extra judge on that bench and would automatically fill the next vacancy.
Theoretically, the D.C. federal courts could receive an additional judge in this way each time a judge left one of the administrative jobs, should there be no vacancies on the bench.
The bill is unclear on another unprecedented possibilty: that a person sitting as a district judge somewhere could elevate himself to the circuit bench through this process. The bill would not prohibit this, though the Constitution might.
While Burger has been supportive of a provision encouraging federal judges to assume the administrative jobs, Levin said Burger did not suggest this controversial incentive, which has stunned local lawyers and judges, and the American Bar Association.
"I don't know if he [burger] even knew about it," said Levin. "I may have mentioned it to Mark Cannon," who is the chief justice administrative assistant.
"The idea has been around for years," Levin said, and it was he who suggested last year that it be included in Sen. Edward M. Kennedy's court improvement bill.
Though the ABA came out in opposition to the provision in October, Judiciary Committee sources said they were unaware of any opposition to it from anyone.