[Congressional Record Volume 141, Number 106 (Tuesday, June 27, 1995)]
[Senate]
[Pages S9189-S9192]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                THE DEATH OF FORMER CHIEF JUSTICE BURGER

 Mr. MOYNIHAN. Mr. President, yesterday's newspapers reported 
that former Chief Justice Warren E. Burger died on Sunday here in 
Washington. He was 87 years old.
  Twenty-six years ago, President Nixon nominated Warren Burger to be 
Chief Justice with the hope of reversing the activism of the Warren 
Court. Yet history was not entirely cooperative: Chief Justice Burger 
presided over a 17-year period in which many of the era's most profound 
controversies had to be decided by the High Court. A number of those 
issues, including school busing to achieve desegregation: Swann versus 
Charlotte-Mecklenburg Board of Education, 1971; the separation of 
church and state as applicable to government aid to parochial schools, 
Lemon versus Kurtzman, 1971; and Executive privilege, United States 
versus Nixon, 1974, were decided in opinions written by Chief Justice 
Burger himself.
  The Chief was somehow able to take all of this and more in stride. He 
relished his additional statutory duties as chancellor of the Board of 
Regents of the Smithsonian Institution, and as chairman of the board of 
trustees of the National Gallery of Art. Although my service as a 
regent of the Smithsonian Institution began just after Chief Justice 
Burger's tenure as chancellor ended in 1986, I did have the 
exhilarating honor, in September of 1985, to be presented the Joseph 
Henry Award by then-Chancellor Burger on one memorable evening at the 
Hirshhorn Museum and Sculpture Garden.
  Following his retirement from the Court in 1986, Chief Justice Burger 
devoted himself on a full-time basis to his work as Chairman of the 
Commission on the Bicentennial of the U.S. Constitution, to which 
President Reagan had appointed him the previous year. 
Characteristically, the Chief threw himself into that effort with the 
great energy and enthusiasm he applied to all of his pursuits. I recall 
corresponding with him about the Commission's progress and his many 
ideas for increasing public appreciation for the Constitution in its 
bicentennial year. Among its good works, the Commission produced the 
excellent pocket-sized Constitutions that are available in Senate 
offices. I have taken to carrying a copy with me, and I know the 
distinguished Senator from West Virginia has as well.
  In his Foreword to the pocket Constitution, Chief Justice Burger 
wrote that our constitutional system:

       [D]oes not always provide tidy results; it depends on a 
     clash of views in debate and on bargain and compromise. For 
     200 years this Constitution's ordered liberty has unleashed 
     the energies and talents of people to create a good life.

  Warren Burger created just such a good life through his own 
indomitable energies and talents. He came from humble roots in St. 
Paul, MN, attended college and law school at night, and ultimately rose 
to become Chief Justice of the United States.
  Chief Justice Burger was a distinguished jurist and a patriot in the 
finest sense of the word. He was also a wonderful husband and father 
and, although it is not much in fashion to say so today, he was a 
gentleman. He was my friend for more than a quarter century, and he 
will be greatly missed.
  Mr. President, I ask that the obituary by Linda Greenhouse from the 
New York Times of June 26th be printed in the Record.
  The obituary follows:
                [From the New York Times, June 26, 1995]

     Warren E. Burger Is Dead at 87; Was Chief Justice for 17 Years

                         (By Linda Greenhouse)

       Washington, June 25--Warren E. Burger, who retired in 1986 
     after 17 years as the 15th Chief Justice of the United 
     States, died here today at age 87. The cause was congestive 
     heart failure, a spokeswoman for the Supreme Court said.
       An energetic court administrator, Chief Justice Burger was 
     in some respects a transitional figure despite his long 
     tenure. He presided over a Court that, while it grew steadily 
     more conservative with subsequent appointments, nonetheless 
     remained strongly influenced by the legacy of his liberal 
     predecessor, Chief Justice Earl Warren. The constitutional 
     right to abortion and the validity of busing as a remedy for 
     school segregation were both established during Chief Justice 
     Burger's tenure, and with his support.
       The country knew Chief Justice Burger as a symbol before it 
     knew much about him as a man or a judge.
       He was President Richard M. Nixon's first Supreme Court 
     nominee, and Mr. Nixon had campaigned on a pledge to find 
     ``strict constructionists'' and ``practitioners of judicial 
     restraint'' who would turn back the activist tide that the 
     Court had built under Chief Justice Warren, its leader since 
     1953.
       The nomination on May 21, 1969, immediately made Mr. 
     Burger, a white-haired, 61-year-old Federal appeals court 
     judge, lightening rod for those who welcomed as well as 

[[Page S 9190]]
     those who feared the end of an era of judicial activism.
       It was a central contradiction of Mr. Burger's tenure as 
     Chief Justice that long after he became one of the most 
     visible and, in many ways, innovative Chief Justices in 
     history he remained, for many people, the symbol of 
     retrenchment that Mr. Nixon had presented to the public on 
     nominating him.
       In fact, the Supreme Court in the Burger years was in its 
     way as activist as the Court that preceded it, creating new 
     constitutional doctrine in areas like the right to privacy, 
     due process and sexual equality that the Warren Court had 
     only hinted at.
       ``All in all,'' one Supreme Court scholar, A. E. Dick 
     Howard, wrote in the Wilson Quarterly in 1981, ``the Court is 
     today more of a center for the resolution of social issues 
     than it has ever been before.''
       While there were some substantial changes of emphasis, the 
     Burger Court--a label liberals tended to apply like an 
     epithet--overruled no major decisions from the Warren era.
       It was a further incongruity that despite Chief Justice 
     Burger's high visibility and the evident relish with which he 
     used his office to expound his views on everything from legal 
     education to prison management, scholars and Supreme Court 
     commentators continued to question the degree to which he 
     actually led the institution over which he so energetically 
     presided.
       His important opinions for the Court included the decision 
     that validated busing as a tool for school desegregation, the 
     one that struck down the ``legislative veto'' used by 
     Congress for 50 years to block executive branch actions, and 
     the one that spurred President Nixon's resignation in 1974 by 
     forcing him to turn over White House tape recordings for use 
     in the Watergate investigations. Yet Chief Justice Burger was 
     just as often in dissent on major decisions. In that, he 
     differed from Chief Justice Warren, who voted with the 
     majority in nearly all important cases.
       Those seeking to identify the sources of intellectual 
     leadership on the Court usually pointed to William H. 
     Rehnquist, another Nixon appointee to whom Chief Justice 
     Burger assigned many important opinions, and to William J. 
     Brennan Jr., the Court's most senior and, with Thurgood 
     Marshall, most liberal member.
       As the senior Associate Justice, Justice Brennan had the 
     right to assign the opinion in any case in which he was in 
     the majority and the Chief Justice was in dissent, and he 
     often exercised that prerogative by assigning major opinions 
     to himself, particularly in the area of individual rights.
       As the years passed, Chief Justice Burger seemed to assign 
     himself the opinions in relatively straightforward and 
     uncontroversial cases, avoiding those in which the Court was 
     deeply split and in which it would have required considerable 
     effort to marshal or hold a fragile majority. As a result, 
     his personal imprint on the Court's jurisprudence was not 
     always readily identifiable.
                     an innovator in administration

       But his imprint was distinct in the area to which he gave 
     his most sustained attention, judicial administration.
       Mr. Burger liked to say that he took his title seriously. 
     He was Chief Justice of the United States, not just of the 
     Supreme Court, and he took as his mandate the stewardship of 
     the entire judicial system, state as well as Federal.
       An array of institutions were created under his aegis, 
     including the National Center for State Courts, the Institute 
     for Court Management and the National Institute of 
     Corrections. The common purpose of those organizations was to 
     improve the education and training of participants in nearly 
     all phases of the judicial process, whether judges, court 
     clerks or prison guards.
       The Chief Justice turned the small Federal Judicial Center, 
     for which he served by statute as chairman of the board, into 
     a major center for research and publishing about the courts.
       He believed that judges could be helped to be more 
     efficient if professional management techniques were imported 
     to the courts, from clerks' offices to judges' chambers. The 
     Institute for Court Management set up a six-month program for 
     training court managers and administrators.
       The Supreme Court itself became one of the first fully 
     computerized courts in the country; in 1981, the Justices all 
     received computer terminals on which to compose their 
     opinions.
       The Chief Justice campaigned tirelessly for better pay for 
     judges, better education for lawyers and help for the Court's 
     evergrowing caseload. From his earliest years in office, he 
     warned that the Federal courts and the Supreme Court in 
     particular were becoming dangerously overworked.
       In 1983, he asked Congress to create an appellate panel 
     that could relieve some of the Supreme Court's caseload by 
     resolving conflicting opinions among the Federal appeals 
     courts.


                 Many Admirers, But Detractors as Well

       Judges and others interested in these long-ignored 
     administrative issues responded with gratitude. One of the 
     Chief Justice's warmest admirers on the Federal bench was 
     Frank M. Johnson Jr., a Federal appeals court judge from 
     Alabama who won praise from civil rights advocates for his 
     orders on prison issues and other rulings.
       ``Warren Burger has redefined the nature of his office,'' 
     Judge Johnson wrote in the early 1980's. ``He has 
     concentrated his energy not simply on exploring the 
     subtleties of constitutional doctrine but on reforming the 
     mechanics of American justice. More than any of his 14 
     predecessors, he has invested the prestige of the Chief 
     Justiceship in efforts to make the American judicial system 
     function more efficiently. He has used his position not as an 
     excuse to withdraw from public affairs but as an opportunity 
     to furnish public leadership.''
       But the priority that Chief Justice Burger assigned to 
     administration also had its detractors, who complained that 
     he trivialized his office by emphasizing the mechanics of 
     justice at the expense of its substance.
       Occasionally, too, his enthusiastic lobbying was seen as 
     overbearing by those at whom it was directed. In 1978, for 
     example, he became deeply involved in the effort in Congress 
     to overhaul the bankruptcy system.
       One Democratic Senator, Dennis DeConcini of Arizona, whose 
     subcommittee had jurisdiction over the bill, complained 
     publicly that a ``very, very irate and rude'' Chief Justice 
     had telephoned him to object to a legislative development and 
     ``not only lobbied but pressured and attempted to be 
     intimidating.''
       The Chief Justice could also be rather intimidating from 
     the bench, particularly when a relatively inexperienced 
     lawyer was arguing a position with which Mr. Burger 
     disagreed. While Chief Justice Warren's favorite question 
     from the bench was, ``Yes, but was it fair?'' Chief Justice 
     Burger often asked: ``Yes, but why is this case in the 
     courts? Isn't this a matter for the Legislature to address?''


                 working to limit the judiciary's scope

       Chief Justice Burger believed in a limited role for the 
     courts and reserved some of his sharpest criticism for those 
     who looked to them to resolve social and political problems 
     that, in his view, were not the province of judges. ``If we 
     get the notion that courts can cure all injustices, we're 
     barking up the wrong tree,'' he liked to say.
       A speech he gave while he was still a judge on the Court of 
     Appeals for the District of Columbia provided a useful 
     summary of the view he held throughout his career: ``That 
     courts encounter some problems for which they can supply no 
     solution is not invariably an occasion for regret or concern. 
     This is an essential limitation in a system of divided 
     power.''
       Some of the more important decisions while he was Chief 
     Justice were those that limited litigants' access to Federal 
     court by using the doctrines of standing, mootness and 
     deference to state courts.
       He seemed to regard suits for small monetary stakes as a 
     waste of judges' time, and many of his speeches complained 
     about the disproportionate cost to the system of trying the 
     lawsuits brought by prisoners or consumers over modest losses 
     of money or property.
       His questioning of one lawyer, who argued in 1982 on behalf 
     of 168,000 consumers, each with a claim for $7.98 against the 
     Gillette Company, was the talk of the Court for weeks, ``What 
     is the economic justification for this kind of lawsuit in the 
     Federal courts under any circumstances?'' the Chief Justice 
     demanded.
       ``We are in state court, judge, in this case,'' the lawyer, 
     Robert S. Atkins, replied.
       ``In state or Federal court?'' the Chief Justice persisted.
       ``The problem,'' Mr. Atkins said, ``is that if you cheat 
     people a little bit but do it a lot, you can go free----''
       The Chief Justice interrupted to interrogate him about the 
     proportion of the recovery that would go for legal fees.


                  inviting attention, some of the time

       Chief Justice Burger's effort to police the moral character 
     of lawyers who sought to become eligible to argue before the 
     Court rankled some of the other Justices and in 1982 provided 
     a rare public glimpse of internal disagreements over the 
     Chief Justice's administrative approach.
       He singled out several applicants by name and accused them 
     of seeking membership in the Supreme Court bar to ``launder'' 
     tarnished credentials. But he failed to persuade a majority 
     of the Court to block the admissions and provoked one 
     Justice, John Paul Stevens, to write that the Court should 
     grant applicants with questionable credentials a ``fair 
     hearing'' before publicly labeling them as unworthy.
       There were contradictory strains in Chief Justice Burger's 
     attitude toward the public, including the press. At times he 
     seemed to welcome and even invite public attention. He took 
     pride in having made the Supreme Court a more attractive 
     place for tourists to visit, transforming the cold marble 
     ground floor into an area for historical exhibits.
       Yet he alone of all the Justice refused, when announcing 
     one of his opinion from the bench, to provide tourists and 
     lawyers in the audience with a brief oral description of the 
     case and the decision.
       The other Justices either read aloud from a memorandum 
     explaining the case or gave a more casual oral account. When 
     the Chief Justice's turn came, he would simply announce that 
     in a case with a particular name, the judgement of the lower 
     court was affirmed, or reversed. When asked why he refused to 
     join the others in explaining his opinions, he once said, 
     ``It's a waste of time.''
       He was adamant about preserving the secrecy of the Court's 
     internal operations, 

[[Page S 9191]]
     even to the extent of refusing to make public the names of his four law 
     clerks. A law firm recruiter or other member of the public 
     who called the Court's public information office seeking a 
     list of the current law clerks would receive the names of all 
     the clerks except the Chief Justice's.
       He mailed copies of his speeches to hundreds of journalists 
     around the country and would telephone particular columnists 
     to make sure his message was clear.


                defining the limits of speech and press

       Occasionally, usually in connection with his annual ``State 
     of the Judiciary'' address to the American Bar Association, a 
     tradition that he inaugurated, he would invite journalists 
     for informal ``deep background'' briefings, sessions that 
     were often relaxed and informative.
       But he seemed to hold much of the press corps in low 
     repute. Asked by a lawyer at a Smithsonian Institution 
     symposium what he thought of the reporters who covered the 
     Court, he replied, as he often did: ``I admire those who do a 
     good job, and I have sympathy for the rest, who are in the 
     majority.''
       His special scorn was reserved for television, which he 
     regarded as an intrusive annoyance. He once knocked a 
     television camera out of the hand of a network cameraman who 
     followed him into an elevator. He vowed that he would never 
     allow oral arguments at the Supreme Court to be televised.
       Yet he wrote the opinion for the Court in the 1981 case 
     Chandler v. Florida, holding that a state could permit a 
     criminal trial to be televised, even over the defendant's 
     objection, without depriving the defendant of the 
     constitutional right to a fair trial.
       Chief Justice Burger wrote several of the Court's most 
     important opinions interpreting the free speech and free 
     press guarantees of the First Amendment.
       His opinion in a 1976 case, Nebraska Press v. Stuart, 
     effectively prohibited judges from ordering the press not to 
     publish information in its possession about the crime, a 
     confession or the like. The opinion said that judges could 
     take less drastic steps to protect criminal defendants from 
     negative pretrial publicity, like sequestering the jury or 
     changing the site of the trial.
       A 1973 opinion by the Chief Justice ended roughly 15 years 
     of turmoil over the legal definition of obscenity by changing 
     the focus to local communities, rather than the entire 
     country.
       That opinion, in Miller v. California, said obscene 
     materials were ``works which, taken as a whole, appeal to the 
     prurient interest in sex, which portray sexual conduct in a 
     patently offensive way and which, taken as a whole, do not 
     have serious literary, artistic, political or scientific 
     value.'' The Chief Justice added that it was up to local 
     juries applying ``contemporary community standards'' to 
     decide whether a particular work fit that definition.
       ``It is neither realistic nor constitutionally sound to 
     read the First Amendment as requiring that the people of 
     Maine or Mississippi accept public depiction of conduct found 
     tolerable in Las Vegas or New York City,'' he wrote. ``People 
     in different states vary in their tastes and attitudes, and 
     this diversity is not to be strangled by the absolutism of 
     imposed uniformity.''


                    religion, rights and veto power

       Chief Justice Burger was also one of the Court's most 
     prolific writers on another aspect of the First Amendment, 
     the clause prohibiting an establishment of an official 
     national religion. In a 1971 opinion, Lemon v. Kurtzman, he 
     set forth the test for deciding whether a given law or 
     government program that conferred some benefit on religion 
     nonetheless passed muster under the First Amendment.
       ``First,'' he wrote, ``the statute must have a secular 
     legislative purpose; second, its principal or primary effect 
     must be one that neither advances nor inhibits religion; 
     finally, the statute must not foster an excessive government 
     entanglement with religion.'' This ``three-part test,'' as it 
     came to be known through later refinements and elaborations, 
     defined the Court's approach to the establishment clause in a 
     variety of contexts.
       The 1983 decision that struck down the legislative veto, 
     Immigration Service v. Chadna, altered the balance of power 
     between the executive and legislative branches.
       It invalidated a procedure, which Congress had incorporated 
     into some 200 laws, permitting one or both Houses to block 
     executive branch action. The procedure, Chief Justice Burger 
     wrote, was not within Congress' constitutional authority 
     because it did not follow the rules the Constitution set out 
     for ``legislation'': passage by both Houses and presentment 
     to the President for his signature.
       The Chadna opinion in many ways summarized the Chief 
     Justice's view of American Government. He wrote, ``With all 
     the obvious flaws of delay, untidiness and potential for 
     abuse, we have not yet found a better way to preserve freedom 
     than by making the exercise of power subject to the carefully 
     crafted restraints spelled out in the Constitution.''
       Chief Justice Burger wrote relatively few of the Court's 
     criminal law decisions, and some of the more important 
     decisions on the rights of criminal suspects found him in 
     bitter dissent.
       For example, in the 1977 case Brewer v. Williams the Court 
     ruled, in a 5-to-4 opinion by Justice Potter Stewart, that 
     the police had violated a murder suspect's constitutional 
     right to counsel. The police officers, knowing that the 
     suspect was deeply religious, delivered what came to be 
     called the Christian burial speech, musing aloud on the wish 
     of the victim's parents to give their daughter a Christian 
     burial. The suspect, who had previously said he would talk 
     only after seeing a lawyer, then led the officers to the 
     victim's body.
       The majority's decision overturning the murder conviction 
     was ``bizarre,'' the Chief Justice wrote in a dissent that 
     was a stinging attack on the so-called exclusionary rule 
     barring the use at trial of illegally seized evidence.
       ``The result reached by the Court in this case ought to be 
     intolerable in any society which purports to call itself an 
     organized society,'' he said. ``Failure to have counsel in a 
     pretrial setting should not lead to the `knee-jerk' 
     suppression of relevant and reliable evidence.''


                     a conservative on crime issues

       Although Chief Justice Burger's views on criminal law did 
     not always garner a majority on the Supreme Court, those 
     views had probably been more responsible for his being 
     nominated to the High Court than any other factor.
       He dissented from the Court's 1972 decision that 
     invalidated all death penalty laws then in force. After the 
     Court permitted executions to resume four years later, the 
     Chief Justice grew increasingly impatient with the legal 
     obstacles that lawyers and judges continued to place in the 
     way of executions.
       When the Court refused to block the execution of a murderer 
     whose appeals had lasted 10 years, Chief Justice Burger wrote 
     a concurring opinion excoriating lawyers for condemned 
     inmates. He said the lawyers sought to turn the 
     administration of justice into a ``sporting contest.''
       In 13 years on the United States Court of Appeals for the 
     District of Columbia Circuit, he was known as a conservative, 
     law-and-order judge. He enhanced that reputation with 
     speeches and articles. A speech in 1967 at Ripon College in 
     Wisconsin came to Richard Nixon's attention after it was 
     reprinted in U.S. News & World Report.
       The White House distributed copies of the speech at the 
     time of Judge Burger's nomination, and the Supreme Court 
     press office handed it out for years when asked for 
     information about his views. In the speech, he compared the 
     American system of justice with the systems of Norway, 
     Sweden, Denmark and the Netherlands.
       ``I assume that no one will take issue with me when I say 
     that these North European countries are as enlightened as the 
     United States in the value they place on the individual and 
     on human dignity,'' he said.
       Yet, he continued, those countries ``do not consider it 
     necessary to use a device like our Fifth Amendment, under 
     which an accused person may not be required to testify.''
       ``They go swiftly, efficiently and directly to the question 
     of whether the accused is guilty,'' he added.
       ``No nation on earth,'' he said, ``goes to such lengths or 
     takes such pains to provide safeguards as we do, once an 
     accused person is called before the bar of justice and until 
     his case is completed.''


                      a modest start in minnesota

       Chief Justice Burger's speechmaking style changed little in 
     subsequent years. He often returned to the theme and imagery 
     of the Ripon speech and often used the Scandinavian 
     countries, which he visited frequently, as benchmarks against 
     which to compare the American system.
       Warren Earl Burger was born Sept. 17, 1907, in St. Paul. 
     His parents, of Swiss-German descent, were Charles Joseph 
     Burger and the former Katharine Schnittger. His paternal 
     grandfather, Joseph Burger, emigrated from Switzerland and 
     joined the Union Army at the start of the Civil War, when he 
     was 14. He was severely wounded in combat and received both a 
     battlefield commission and the Medal of Honor.
       Warren Burger was one of seven children. The family lived 
     on a 20-acre truck farm on the outskirts of St. Paul. In 
     addition to farming, his father sold weighing scales; the 
     family's financial circumstances were modest.
       At John A. Johnson High School, from which Warren Burger 
     graduated in 1925, he edited the school newspaper, was 
     president of the student council and earned letters in 
     hockey, football, track and swimming. He earned extra money 
     by selling articles on high school sports and other news to 
     the St. Paul newspapers.
       The rest of his formal education took place in night school 
     while he worked days selling insurance for the Mutual Life 
     Insurance Company of New York. He attended the night school 
     division of the University of Minnesota for two years, then 
     began night law classes at the St. Paul College of Law, now 
     known as the William Mitchell College of Law. He received his 
     degree with high honors in 1931.
       He joined the faculty of the law school and taught for 12 
     years while practicing law with the firm of Boyesen, Otis & 
     Faricy. He remained with the firm, one of the oldest in the 
     state, for 22 years; after he became a partner, the firm was 
     known as Faricy, Burger, Moore & Costello. He handled 
     probate, trial and appellate cases, arguing more than a dozen 
     before the United States Supreme Court and many more in the 
     Minnesota Supreme Court.
       He married Elvera Stromberg in 1933. They had a son, Wade 
     Allen, and a daughter, Margaret Elizabeth.

[[Page S 9192]]

       As a young lawyer, Mr. Burger became active in community 
     affairs. He was president of the Junior Chamber of Commerce 
     and the first president of the St. Paul Council on Human 
     Relations. That group, which he helped to organize, sponsored 
     training programs for the police to improve relations with 
     minority groups. For many years, he was a member of the 
     Governor's Interracial Commission.
       He also became involved in state politics, working on 
     Harold E. Stassen's successful campaign for governor. He went 
     to the 1948 Republican National Convention to help Governor 
     Stassen's unsuccessful bid for the Presidential nomination.


                     making the move to washington

       In 1952, he was at the Republican convention again, still a 
     Stassen supporter. But he helped Dwight D. Eisenhower's 
     forces win a crucial credentials fight against Senator Robert 
     A. Taft of Ohio. On the final day, with General Eisenhower 
     lacking nine votes for the nomination, Mr. Burger helped 
     swing the Minnesota delegation and gave Eisenhower the votes 
     that put him over the top. Cheers broke out on the convention 
     floor as an organ played the University of Minnesota fight 
     song.
       His reward was a job in Washington, as Assistant Attorney 
     General in charge of the Civil Division of the Justice 
     Department. He supervised all the Federal Government's civil 
     and international litigation. He told a young Justice 
     Department lawyer years later that he would have been content 
     to continue running the Civil Division for the rest of his 
     career.
       One of his assignments was somewhat unusual for the Civil 
     Division chief. He agreed to argue a case in the Supreme 
     Court, usually the task of the Solicitor General's Office. 
     The case involved a Yale University professor of medicine, 
     John F. Peters, who had been discharged on loyalty grounds 
     from his job as a part-time Federal health consultant.
       The Solicitor General, Somin E. Soboloff, disagreed with 
     the Government's position that the action by the Civil 
     Service Commission's Loyalty Review Board was valid and 
     refused to sign the brief or argue the case. Mr. Burger 
     argued on behalf of the board and lost. Among the lawyers who 
     filed briefs on the professor's behalf were two who would 
     precede Mr. Burger on the Supreme Court, Abe Fortas and 
     Arthur J. Goldberg.
       After two years, Mr. Burger resigned from the Justice 
     Department and was preparing to return to private practice in 
     St. Paul when Judge Harold Stephens of the United States 
     Court of Appeals for the District of Columbia Circuit died. 
     President Eisenhower nominated him for the vacancy, and he 
     joined the court in 1956.
       His elevation to the Supreme Court 13 years later was made 
     possible by President Lyndon B. Johnson's failure to persuade 
     the Senate to accept Abe Fortas as Chief Justice.


                     a beneficiary of '68 election

       On June 13, 1968, Earl Warren had announced his intention 
     to resign after 15 years as Chief Justice. President Johnson 
     nominated Mr. Fortas, then an Associate Justice, as Chief 
     Justice. But the nomination became a victim of the 1968 
     Presidential election campaign and was withdrawn on Oct. 2, 
     the fourth day of a Senate filibuster that followed 
     acrimonious confirmation hearings.
       Chief Justice Warren agreed to delay his retirement, and it 
     was clear that whoever won the Presidential election would 
     choose the next Chief Justice. Justice Fortas remained on the 
     Court until May 1969, when he resigned after the disclosure 
     that he had accepted a $20,000 fee from a foundation 
     controlled by Louis E. Wolfson, a friend and former client 
     who was under Federal investigation for violating securities 
     laws.
       On May 21, a week after the Fortas resignation, President 
     Nixon nominated Warren Burger to be Chief Justice. The 
     nomination went smoothly in the Senate, and he was sworn in 
     as Chief Justice on June 23, 1969.
       The Chief Justice and his wife lived in a renovated pre-
     Civil War farmhouse on several acres in McLean, Va. According 
     to the annual financial disclosure statements required of all 
     Federal judges, he had assets of more than $1 million. His 
     largest investment was the common stock of the Minnesota 
     Mining and Manufacturing Company.
       He was a gardener and a serious wine enthusiast who took 
     pride in his wine cellar and occasionally sponsored wine-
     tasting dinners at the Supreme Court.
       By statute, the Chief Justice is Chancellor of the 
     Smithsonian Institution and chairman of the board of trustees 
     of the National Gallery of Art, duties that, as an art and 
     history buff, he enjoyed. He visited antiques stores to look 
     for good pieces for the Court and took an active role in the 
     Supreme Court Historical Society.
       He and his wife led an active social life in Washington and 
     spent part of nearly every summer in Europe, usually in 
     connection with a conference or other official appearance.
       Chief Justice Burger cut an imposing figure, and it was 
     often said that he looked like Hollywood's image of a Chief 
     Justice. He was nearly 6 feet tall, stocky but not heavy, 
     with regular features, a square jaw and silvery hair.
       Proper appearance was important to him. He once sent a note 
     to the Solicitor General's Office complaining that a Deputy 
     Solicitor General had worn a vest the wrong shade of gray 
     with the formal morning attire required of Government lawyers 
     who argue before the Court.
       In 1976, he appeared at a Bicentennial commemoration in a 
     billowing robe with scarlet trim, a reproduction of the robe 
     worn by the first Chief Justice, John Jay. He later put the 
     robe on display in the Court's exhibit area.
       A book by Chief Justice Burger, ``It Is So Ordered'' 
     (William Morrow), was published earlier this year. It is an 
     account of 14 cases that, in his judgment, helped shaped the 
     Constitution.
       Mr. Burger's wife died in May 1994. He is survived by his 
     son, of Arlington, Va.; his daughter, of Washington, and two 
     grandchildren. Funeral arrangements were incomplete 
     today.
     

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