President Nixon and Judge Warren E. Burger on the day of his nomination to the Supreme Court as Chief Justice.
45 years ago today, President Nixon made his first appointment to the Supreme Court. It was also his most important appointment during his presidency because the position needing to be filled was that of Chief Justice. In his campaign of 1968, President Nixon expressed his desire for a strictly constitutional Supreme Court, a court that would uphold the function of interpreting the law.
The question is whether a judge in the Supreme Court should consider it his function to interpret the law or to make the law. Now it is true that every decision to some extent makes law; however, under our Constitution the true responsibility for writing the law is with the Congress. The responsibility for executing the law is with the Executive and the responsibility for interpreting the law resides in the Supreme Court. I believe in a strict interpretation of the Supreme Court’s functions. In essence this means I believe we need a Court which looks upon its function as being that of interpretation rather than of breaking through into new areas that are really the prerogative of the Congress of the United States.
President Nixon also gave insight into what kind of a candidate he would select:
First, since I believe in a strict interpretation of the Supreme Court’s role, I would appoint a man of similar philosophical persuasion. Second, recent Court decisions have tended to weaken the peace forces, as against the criminal forces, in this country. I would, therefore, want to select a man who was thoroughly experienced and versed in the criminal laws.
That man was Warren E. Burger. A man devoted to the study, the teaching, and the practice of law, Judge Burger worked his way through the University of Minnesota and the St. Paul College of Law, attending school at night and working days in the office of the Mutual Life Insurance Company of New York.
Judge Warren Earl Burger of the United States Court of Appeals for the District of Columbia Circuit has devoted a lifetime to the study, the teaching, and the practice of the law.
From 1931 on, he was an associate in Boyesen, Otis and Faricy, and partner in the successor firm of Faricy, Burger, Moor & Costello. During his 22 years in private practice, his range of cases ran the gamut of civil and criminal law. He argued close to a score before the United States Supreme Court and dozens more before State Supreme Courts and United States Appellate Courts.
In 1953, Judge Burger came to Washington to become Assistant Attorney General in chard of the Civil Division of the Department of Justice. Three years later, President Eisenhower named him to the United States Court of Appeals for the District of Columbia Circuit.
Judge Burger expressed his views in a commencement address at Ripon College in May 1967:
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 from 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. In the vernacular of ordinary people, we have expressed this by saying, “too much of a good thing is not good.”
We know that a nation or a community which has no rules and no laws is not a society but an anarchy in which no rights, either individual or collective, can survive. A people who go to the other extreme and place unlimited power in Government find themselves in a police state, where no rights can survive.”
Our system of criminal justice, like our entire political structure was based on the idea of striking a fair balance between the needs of society and the rights of the individual. In short, we tried to establish order while protecting liberty. It is from this we derive the description of the American system as one of ordered liberty. To maintain this ordered liberty we must maintain a reasonable balance between the collective need and the individual right, and this requires periodic examination of the balancing process as an engineer checks the pressure gauges on his boilers.
President Nixon with former Chief Justice Earl Warren and newly appointed Chief Justice Warren E. Burger.