A PROFESSIONAL FOR THE HIGH COURT

IN protocol, the Chief Justice of the United States stands behind the President, the Vice President and the Speaker of the House. But in his impact on the national life, he has the potential of surpassing even the Chief Executive.

His tenure is measured in decades rather than years. His authority can in fluence the most important acts of the executive and legislative branches, as well as the fate of the individual citizen. Yet when President Nixon walked into the East Room of the White House last week to announce what he called the most important appointment of his Administration, reporters glanced at the very distinguished-looking man beside him and whispered to each other: "Who is he?"

Their confusion was understandable.

Warren Earl Burger, Nixon's choice to replace Chief Justice Earl Warren, is in many ways a judge's judge -- and an al most total unknown outside the legal community. In 13 years on the U.S.

Court of Appeals for the District of Columbia Circuit, he has been intelligent but not brilliant, thorough but not imaginative, moderate but not innovative.

Strikingly similar to the President in temperament and background, Burger agrees firmly with Nixon that the Supreme Court has gone too far in areas such as protecting the rights of criminal defendants. Above all, he is the kind of man that Nixon feels the court needs in the wake of the Fortas scandal. Generally centrist in politics and cautious in law, Burger, a Republican, is neither dogmatic on the bench nor strongly oriented ideologically. He is in every way a professional jurist and a man of unquestioned probity, with the Midwestern virtues that Nixon so much admires. If, as expected, Nixon appoints a man of similar convictions to replace Abe Fortas, the court will have a nonactivist or moderate majority for the first time since the mid-1950s, giving Burger and his colleagues an opportunity to amend some of the court's most controversial decisions if they so choose.

The court that had seemed safely in the hands of activists--or judicial liberals--now seems destined for a somewhat less ambitious role that may last far longer than the Nixon administration. Though there is unlikely to be a sudden shift in direction, the differences could in time be profound. "We are under a Constitution," Charles Evans Hughes remarked before he himself became Chief Justice, "but the Constitution is what the judges say it is."

No. 1, No. 2, No. 3

Unlike the ill-fated Fortas, who immediately ran into trouble when President Johnson nominated him for the spot last year, Burger should have no difficulty winning Senate confirmation. He is not subject to the charge of cronyism, and Nixon is at the beginning rather than the end of his presidency. While Burger has known Nixon for 21 years, he has seen the President only three times in the past 13 years--the third time only three minutes before they walked into the East Room last week. While he is generally of the conservative school, he is moderate enough, particularly on racial issues, not to offend most liberals too greatly. Finally, as Nixon pointedly noted--his mind obviously on the financial dealings that forced Fortas to resign a fortnight ago --Burger has shown "unquestioned integrity throughout his private and public life."

Everett Dirksen, the Senate minority leader, ticked off some of the ingredients of prompt confirmation: "No. 1, he looks like a Chief Justice. No. 2, he acts like a Chief Justice. No. 3, he talks like a Chief Justice." Other Senate conservatives, particularly Southerners who lost no opportunity to attack the Warren Court, were extremely pleased and gratified at the prospect of a Burger Court. "I think it affords us the guarantee," said North Carolina's Sam Ervin, "that we will have a return to constitutional government in the United States as far as the Supreme Court is concerned."

Mixed Reception

Most Senate liberals offered either mild praise or silence for the man who a generation ago called himself a Harold Stassen progressive. Disagreement with the judge's views, acknowledged Edward Kennedy, would not be reason enough to withhold confirmation. Barring the unexpected, Warren Burger will be the 15th Chief Justice when the new term begins on the first Monday of October.

Away from the Capitol, reaction to Burger's appointment was less than unanimous. The University of Chicago's Philip Kurland, a conservative and a critic of the Warren Court who might have been expected to approve, was acerbic. "What you have here," he said, "is the opposite of the knee-jerk liberal --the knee-jerk conservative. In 13 years, he's been a hard-liner in criminal cases. That's the story of his life." On the bench itself, one liberal federal judge was extremely bitter. "He is basically a man who doesn't stand for anything except in the law-and-order area," he asserted. "It's just a shock to me that a person like him can gain the confidence of the President of the United States."

Not everyone was so intemperate. Said Princeton Historian Arthur Link: "Burger is neither a rightist nor a leftist, an authoritarian nor a libertarian. He's a middle-of-the-roader." In the same vein, the University of Pennsylvania's Anthony Amsterdam, a noted civil libertarian who has fought many cases for the N.A.A.C.P. and the American Civil Liberties Union, thought that Burger was "the best appointment that could have been expected from the Nixon Administration. He is a fine judge and a first-rate legal craftsman. He is a law-and-order man, but he is an enlightened law-and-order man."

Many experts found reason for enthusiasm. "He's got all the qualifications," said J. Edward Lumbard, a judge on the U.S. Court of Appeals, 2nd Circuit: "Moral courage, unquestioned integrity and a first-rate lawyer's knowledge and experience of the trial courts and the administration of criminal justice." Added F. William Andres, one of Boston's best-known lawyers: "The President went to the proper source for this appointment--to the judiciary itself and to a man who has been just a judge. This is terribly important to the country right now."

In large measure, Burger owed his nomination as much to Abe Fortas as to Richard Nixon, and the President said as much in an extraordinary 45-minute session with newsmen the day after the appointment. Speaking from notes he had written on his celebrated yellow legal pad, the President told not only why he had chosen Burger but why he had not chosen several others who had been prominently mentioned for the job. Other Presidents, including L.B.J., have held background sessions dealing with personalities or events. But never before has a President admitted the public so far into his thinking about an appointment. To some, it appeared to be a typical example of Nixonian psychology, a somewhat compulsive need to justify and explain himself. But the President's motives seemed straightforward enough. He wanted to use facts to stop press speculation that might prove embarrassing to his friends, and he wanted to contrast the candor of his Administration with the deviousness of his predecessor's. He succeeded in both goals, and he is expected now to repeat the briefing approach when fuller than usual background is again needed.

In Burger's favor, the President said, was his position on crime and the Constitution, his experience as a judge and his ability to lead. Going for him also was the fact that he was not close to the President, either personally or politically. As a result of the Fortas case, Nixon said, he had decided that the new Chief Justice--and any other Justices named later--should be neither a close friend nor a political associate.

Dewey Too Old

Thus two men, at least, were out: Charles Rhyne, former American Bar Association president, a Nixon classmate at Duke law school and a personal friend, and Attorney General John Mitchell, the 1968 campaign manager. A third, Herbert Brownell, Eisenhower's Attorney General--and Burger's boss for three years in the Justice Department in the early '50s--withdrew of his own accord because he thought his former job would raise opposition in the Senate. A fourth, Potter Stewart, an Eisenhower appointee to the court, took himself out because he thought that elevation of an Associate Justice would create friction and jealousy on the bench. Thomas Dewey, twice the Republican candidate for President, said simply that at 67 he was too old. A Chief Justice, said Dewey, should have at least ten years on the job. Burger, 61, at least has that prospect.

Nixon insisted that the timing of the appointment had nothing to do with Fortas. He wanted his nominee to have ample opportunity to confer with Warren, but he did not want the Senate hearings to begin until the court had ended its current session. Some time in May was thus indicated for the announcement. Still, the effect of the nomination last week, intended or not, was to draw attention from the Fortas affair and focus interest on the court's future rather than its troubled present.

Tremors of the Fortas affair, of course, were still being felt as Burger stood in front of the TV cameras. As the result of questions about the court's integrity, Justice William O. Douglas, a court veteran of 30 years, resigned from the presidency of the Parvin Foundation from which he has received about $12,000 annually for the past seven years. Though his relationship to Parvin was certainly less objectionable than Fortas' tie with the Wolfson Family Foundation --the contract was not for life, for one thing, and Douglas' duties were spelled out precisely--the connection was still questionable and invited the accusation of poor judgment at least. The foundation until recently had derived income from Las Vegas gambling operations. Even after Douglas quit the organization, the American Bar Association said it would ask its ethics committee to consider whether Douglas had violated A.B.A. canons.

At the same time, Chief Justice Warren, as one of his last official acts, requested senior federal judges to begin drafting a code of ethics for the federal judiciary. The prospective rules would not only bar judges from outside employment, excepting only lecturing, writing and teaching on legal subjects, but would also require disclosure within the Judicial branch of all income. In a sense, Warren was racing Congress, where three bills on judicial ethics have already been submitted. It is uncertain, however, how far Congress could go in clamping down on a supposedly coequal branch of government. Many Congressmen believe that the matter would best be resolved by the judges.

Ironically, Burger might also be affected by the proposed rules. He receives about $2,000 a year plus expenses for serving on the board of the Mayo Clinic in Minnesota (along with L.B.J., who was appointed in February). While this connection seems innocent enough, it too would probably be dissolved if Warren's proposed rules against outside activity went into effect.

Three-Legged Stool

Outside activity should be the very least of Burger's problems as Chief Justice. More important will be his ability to run the court and persuade his colleagues to accept his own traditional concept of the law, particularly in the controversial field of criminal justice. "A trial court," he likes to say to explain his point, "is like a three-legged stool: a judge, a prosecutor and a defense lawyer. Take anything away and the stool topples over." It is his feeling that the prosecutor has been so weakened by court decisions that the stool has in effect toppled over. As a result mainly of court decisions, he has stated, "We have today the most complicated system of criminal justice and the most difficult system to administer of any country in the world."

In a speech that particularly impressed Nixon, Burger said two years ago that "governments exist chiefly to foster the rights and interests of their citizens, to protect their homes and property, their persons and their lives. If a government fails in this basic duty, it is not redeemed by providing even the most perfect system for the protection of the rights of defendants in the criminal courts. It is a truism of political philosophy rooted in history that nations and societies often perish from an excess of their own basic principle."

To a great degree, he finds fault not with the spirit of the decisions but with the procedures they entail and the practical results they bring. Instead of deciding case by case, he says, the Supreme Court should have relied on a tool given it by Congress 30 years ago. Before it got too far into the criminal-law revolution, it could have set up an advisory committee of lawyers, judges and legal scholars to draw up detailed rules of procedure for federal courts and law-enforcement agencies. That way, Burger believes, much of the confusion and conflict that exist today, the inevitable results of piecemeal, sometimes contradictory decisions, could have been eliminated. The basic decisions --those that guarantee a lawyer to every person charged with a serious offense and those that protect him against coerced confession--Burger regards as so fundamental as to be beyond dispute. His opposition, generally, has been to rulings that affect mere procedural questions, such as how police should conduct lineups, exactly when a lawyer should be present and what constitutes a legal search and seizure.* These go into matters that Burger does not consider basic constitutional rights.

Beyond Dispute

That confusion exists cannot be denied. It is far from certain, however, that the court could or should have gone the route Burger recommends. Not only is his method slow, with acceptable results only theoretical in such a controversial area, but any rules adopted would provide no more than an example, to be accepted or rejected by the states. It is in state and local jurisdictions that the most serious abuses of police power have always occurred, and the top federal court has moved so far into criminal justice largely because state courts have been so shockingly negligent. Burger's position also implies the approval of Congress, which so far has been less than eager to examine criminal procedure with anything like dispassion or proper concern for the Bill of Rights.

One part of Burger's philosophy of law and order is beyond dispute. The U.S. has failed miserably in reforming people who have been sentenced. Though the system will devote great sums of money to giving a defendant a trial, with many chances of appeal, it will spend relatively little where resources would do the most good: making prisons over into institutions of correction rather than punishment. "In part, the terrible price we pay in crime," he says, "is because we have tended, once the drama of the trial is over, to regard all criminals as human rubbish."

In another, increasingly disputed area of criminal law--the place of the psychiatrist--Burger again has strong and somewhat unorthodox views. He believes firmly in psychiatry itself, sadly contrasting the number of psychiatrists serving the American penal system (as few as one for each 5,000 inmates in some states) with those in Denmark (one to 100). But he does not feel that the psychiatrist has a role in trial procedure, where the main question, in Burger's view, is what occurred, not why. He was, for example, opposed to acceptance by the District of Columbia of the famous Durham rule,* which greatly broadened the concept of criminal insanity. The winning lawyer on the other side: Abe Fortas.

Important as it now is, criminal justice is only one part, and not the largest at that, of the court's concerns. How will Burger view the others? If his statements and 13 years on a lower bench are indicative, he will fall into the school of the late Felix Frankfurter and John Marshall Harlan, Frankfurter's current disciple on the court. This tradition is not so much liberal or conservative in orthodox political terms --Frankfurter was considered an articulate advocate of civil liberties but was inclined against overruling other branches and levels of government unless there was a compelling reason. Burger has not expressed himself on many specific issues outside the field of criminal justice, but people familiar with his thinking expect him to be hard on disruptive campus dissent and to be unsympathetic to the court's new extensions of the one man, one vote doctrine, which carry the principle toward the city and county.

"We do well," Burger said in a decision last year, "to heed the admonition that judges confine themselves to the case at hand." That ruling knocked down Adam Clayton Powell's attempt to gain his seat in Congress by judicial decree. Though acknowledging his court's jurisdiction to act, Burger chose not to intervene. He was motivated by his respect for Congress' right to make its own rules and the practicality of the case --one of his constant concerns. Speculating about a confrontation with a recalcitrant Congress, Burger later asked rhetorically: "What if we had ordered the House to seat Powell and the House had refused? Could we have sent the Army up Capitol Hill to enforce it?"

No matter how firmly established their positions are, few officials are less predictable than newly appointed Supreme Court Justices. Wrapped in the black robes of one of the world's most august bodies, their jobs guaranteed for life, they often surprise and frequently offend the Presidents who appointed them. "I could carve a judge with more backbone out of a banana," Teddy Roosevelt supposedly growled after his appointee, Oliver Wendell Holmes, refused to vote the President's way on a trust case. Dwight Eisenhower was similarly shocked at Earl Warren's liberalism.

Precedents May Remain

By elevating a judge from a federal court, where the issues are like those that will go to the Supreme Court, Nixon knows better than most Presidents where his man stands, and has a better than average chance of finding comfort in his course. Indeed, the President was candid enough to hope publicly that his new appointee would begin to change the court's direction.

In this, if not in the man himself, Nixon may be disappointed. While Burger and the other yet-to-be-named Justice, together with the existing centrist faction of John Harlan, Potter Stewart and Byron White, may in fact reverse some of the controversial criminal decisions, it is just as likely that they will allow what has been done to remain done. Since the liberals in the past have been strongly criticized for violating the hallowed concept of stare decisis--let the precedent decide--the other side might feel uncomfortable in now jumping over precedents of the Warren era, new as some of the precedents may be. Thus Robert McKay, dean of the New York University Law School, thinks there may be "some, trimming and tailoring" of the close decisions, but no radical backtracking.

Metaphysical Powers

Much depends on the man Nixon picks to replace Fortas--and on the man he has chosen to replace Earl Warren. If Burger is a strong Chief Justice, he may be able to move the court more than now looks likely; if he is weak or merely competent, whatever change comes about will probably be very gradual. First in prestige, first in rank, first in the public eye, the Chief Justice is still only one of nine when it comes to voting, and must depend on other, more subtle tools to make his presence any more powerful or persuasive than his colleagues'.

Set down on paper, his power appears scarcely more than metaphysical. He leads the judicial conferences, states the facts of the case under consideration, and, when he is in the majority, picks the man who will write the decision. On a closely fought issue, all three can be important. Some Chief Justices, like Warren, have been both forceful and tactful enough to use their tactical advantages to build up strong leadership. Others, like Fred Vinson, Warren's predecessor, have been all but overshadowed by more brilliant or more articulate Associate Justices.

With opinion so closely divided on everything else about him, it is not surprising that Burger is likened to both of the preceding Chief Justices. Like Warren, says former Attorney General Ramsey Clark, "he is quiet, modest and very warm. He meets people graciously and is interested and concerned with what they have to say. You can't be around him without thinking that here's a good, decent man." More decisive than title, power or personality, suggests Harvard Professor Ernest Brown, is the intellectual capability of a Justice. On that basis, guesses Brown, the liberal William Brennan might turn out to be the "key figure," and Warren's spiritual, if not titular successor.

New Issues

With all the talk of the Burger Court, one crucial fact is usually forgotten: even the Warren Court has been changing and becoming less activist. Brandeis Political Scientist George Kelly believes that that court reached its high-water mark several years ago with the one-man, one-vote decision. Since then, he says, it has moved more slowly and been less prone to embark on new courses. Leo Pfeffer, a political scientist at Long Island University, discerns the same deceleration--and the reasons. First, the court has gone about as far as it can in many areas. Second, it, like any other human institution, is reacting to "the temper of the times and to the escalation of criticism."

If nothing else, Burger's appointment should act to quiet the more strident critics. Southerners like James Eastland, chairman of the Senate Judiciary Committee, will be less likely to claim, as he once did, that the court is "the greatest single threat to our Constitution." Even Eastland might find it hard to reverse his judgment of last week, which called Burger "an outstanding jurist and a very fine man."

In time, the main reason for Nixon's choice--Burger's stand on law and order --may seem far less important than it does today. New issues and new problems almost certainly will arise, and may very well overshadow the controversies of today. The question before the court of the '70s may not be criminal rights but citizen rights. Columbia Political Scientist Alan Westin, for instance, sees an impending collision between the old system of government, which depends upon political parties and established bureaucracy, and the new demands for participation by the poor and the powerless. There will be constant requests, predicts Westin, for the court to referee. If it refuses, he says, there will be "a decade unsurpassed in violence." Beyond that, there will be, without question, a paramount need to provide a legal framework to curb an overweening technology, which even today threatens to destroy both man and his works.

At first glance Judge Burger would seem an inappropriate Chief Justice for the possibly turbulent decade of the '70s. He is neither a simple nor an obvious man, however, and may very well confound both critics and friends. Significantly, perhaps, the decision he is most proud of affirmed those very citizen rights that Westin noted. When the Federal Communications Commission turned down a complaint by a group of blacks against a Mississippi radio station that they charged was racist, Burger, speaking for his court, affirmed the citizens' rights to challenge the FCC's renewal of a license. His decision, says an admiring lawyer, brought the public into an area that was until then the exclusive preserve of Government and industry.

The First Challenge

In the end, all prejudgments are suspect, in and out of court. In any event, the country has a way of educating its Justices--as well as its Presidents--and the Justices, in their turn, have a way of educating the country. A period of consolidation after a decade of hurried innovation may be, as Nixon believes, best for both court and country.

Still, it should not be forgotten how or why the period of intense activity came about. For the most part; it was caused by the default of other branches of Government, lower courts and society in general. When neither the executive nor the legislative branch cared enough about the Negro to guarantee his basic rights as a citizen, not to mention as a human being, the Warren Court outlawed school segregation, setting in motion the civil rights advances of the '50s and '60s. When no other body of Government seemed concerned that city dwellers were made second-class citizens by the grossest forms of malapportionment, the court said that one man was allowed one vote. When no one else took action against abuses of police power, the Justices launched their still controversial course of protecting the rights of those accused of crimes.

The court filled the vacuum, but at the same time it has paid the price of controversy. Its image as an Olympian arbiter above the political fray has usually been false. Still, its involvement in the most contentious issues of the last decade and its role of a de facto lawmaker were extraordinary--and raised questions about the court's function in American society that go far beyond the labels of liberal and conservative.

Now, in addition to fears about the court's widening power, the Fortas affair causes alarm about its integrity. There is no real evidence that the vast majority of the people have lost their awe and respect for the court, but there clearly has been some diminution of its prestige. That is hurtful, because public trust has been the court's main strength for 179 years. The 15th Chief Justice will now be challenged to reassert the court's moral authority.

* An accused is not criminally responsible if his unlawful act was the product of mental disease or defect."

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