Last week former chief justice Warren E. Burger was reminiscing about his years on the Supreme Court before a group of local judges, law students, and law professors at John Marshall Law School. He talked about the time in 1969 when it was his turn to go before the Senate Judiciary Committee, a time when there were no TV cameras to worry about. He only remembers one of the few questions he was asked, which had to do with something Burger felt might come before him on the court. "It was inappropriate for me to answer," he said, echoing nominees before and since.
It didn't appear that the law school had hosed down the front sidewalk, as it had a few weeks before for the visit of Justice Antonin Scalia. But then just before Scalia's visit the school had had messy work done on the outside of the building. The school did remove a big modern bookcase filled with books written by faculty members from the entry hall, and replaced it with a classic dark credenza and a vase of flowers that gave the hall a tight-assed Americana feel.
Warren Burger is in his mid-80s and has been off the court since 1986, when he obliged Ronald Reagan by stepping down so Reagan could appoint William Rehnquist chief justice. Now he's chairman of the Commission on the Bicentennial of the U.S. Constitution and travels around the country drumming up goodwill.
The room was too warm, and Burger's droning about what kinds of questions are appropriate for Supreme Court nominees put several people to sleep. "The only questions that are proper are questions relating to his or her integrity. Like whether one is a convicted felon....And ones related to legal education, legal experience, and judicial experience--not ones which border or focus on future [judicial] questions."
In the same dull monotone he observed that the kind of "hardball politics" that accompanied the Clarence Thomas hearings is nothing new, and said that even a perfunctory study of early American history would show that men such as justices John Marshall, John Rutledge, and Samuel Chase were embroiled in controversial hearings. Though because people couldn't see the hearings, only a few knew how scandalous some of the alleged actions of these men really were.
Burger sank deep into platitudes. Acknowledging that many Americans were offended by the recent hearings, he said, "It's now more clear than ever we have a great system. We can't see the separation of powers--it's not a tidy and orderly system. It's full of confusion and untidiness. But there's no other system that compares."
Then, almost in an attempt to justify Thomas's evasiveness, Burger pointed out that his own views were vague and general when he replaced Earl Warren as chief justice. (He was Richard Nixon's great hope for a strong ally, a toady, on the high court.) Burger's eyes twinkled when he recollected that Hugo Black, William Brennan, and Thurgood Marshall had "firm" ideas on certain things--and that as he conferred with them over the next 17 years he "underwent change."
Sometimes that change was rapid. On May 12, 1973, Burger could say, "I don't see what they [the Watergate conspirators] did wrong." But on July 24, 1974, he attached his name to the 8-0 decision, United States v. Nixon, President of the United States, et al, which stated that Nixon's need for privacy was no greater than anyone else's.
Sensational as that case was, Burger told the small crowd, it was not the proudest moment of his tenure. "That would have to have been the snail darter case," he said, his voice perfectly sincere.
In answer to one of the last questions put to him, Burger said disgustedly that special-interest groups with narrow political agendas who want to amend the Constitution accordingly are "emotionally maladjusted people who have no other way to handle their problems." It was the most emotion he had shown all afternoon. Suddenly his face became impish. "But I'm not going to wrap myself in the flag, because I'm afraid I might get burned," he said, chuckling, and then explained that he often tells this joke.