My Predecessor: Earl Warren

Warren E. Burger

I had met Earl Warren on a few occasions before he was appointed Chief Justice but had no real acquaintance with him. I attended the session of the Court on the first Monday in October in 1953, when he formally took the oath of office as Chief Justice under a recess appointment by President Eisenhower. President Eisenhower attended the hearing, sitting in that special reserved chair immediately in front of the guest box. At that time, I was Assistant Attorney General, and I sat with Attorney General Herbert Brownell, William P. Rogers, Warren Olney, and J. Lee Rankin, all of Brownell's staff. Justice Hugo Black as Senior Justice administered the oath of office to the new Chief Justice.

When an invitation was extended to President Eisenhower informally, I believe, by Earl Warren, the President responded by saying that because of his strong belief in both the reality and the importance of public perception of separation of powers he would come if invited by the Court. Justice Black then officially invited him.

Shortly after my nomination as Chief Justice in late May, 1969, but before my confirmation, I was informally invited to have lunch with the Justices. I responded by suggesting that some observers might think either that the Court was taking confirmation for granted--or that I was--and that we would be well advised to defer lunch.

Confirmation came on June 6, and Mrs. Burger and I decided that we would call on the Chief Justice and Mrs. Warren to pay our respects. We did so on the following Sunday and were cordially received. The Chief Justice then invited me to have lunch with him the following week to discuss the transition details and we did so. At lunch I asked the Chief Justice to administer the oath and he responded that he thought I would be having one of my colleagues of the Court of Appeals do so. I responded that the concept of continuity with change in the Court was served by his doing it and he agreed. In my view, that concept is important.

Until all of the opinions of the Court were handed down, Chief Justice Warren continued in office and, on June 26,1 took the oath. Before the ceremony the Chief Justice and I met with the clerk and the Marshal to review the details of the proceedings. It was agreed that I would sit in the well of the Courtroom until the routine business of the day on the Order List and announcement of the Court's final opinions of the Term was completed. At that point President Nixon was to present my commission to the Court after which the Chief Justice would administer the oath of office. In this review of the detailed steps one of the Court Officers suggested that once the oath was administered to me protocol called for my preceding Chief Justice Warren leaving the Bench. I immediately responded that Chief Justice Warren and I would depart arm in arm and all was well. There are times when protocol should yield to agreeable results.

After presenting the commission, President Nixon made a very warm speech paying tribute to Chief Justice Warren's great career of public service extending for more than half a century. Chief Justice Warren responded warmly and we later proceeded with the usual "photo opportunities" in the East Courtyard and in front of the Court while the guests were leaving to join the receiving line for the reception in the East and West Conference Rooms. Unlike today, there were no questions shouted at anyone during the photo session.

On the day of our preliminary "rehearsal" of the ceremony, Chief Justice Warren told me he would be in Washington for several weeks and then would be flying to California but that the official limousine was available to me at once. I insisted that, since we had three cars at our household, he should keep the limousine for the time. He protested but then thanked me and said that would be helpful because the new car he had ordered had not been delivered.

During the summer I was trying to pick up the strings, touring the building and meeting with the Court Officers. In the days when I argued cases in the Court I would enter by way of the garage in a Department car and go directly to the Solicitor General's chamber so I was not acquainted with the rest of the building. In 1960 Chief Justice Warren invited his former assistant Warren Olney III to become head of the Administrative Office of the U.S. Courts, and he called and asked me to urge Olney to return to Washington for this appointment. Olney and I were close friends from the time he headed the Criminal Division of the Department of Justice and I headed the Civil Division. Olney served for many years in that office and brought to bear his long experience as an active practitioner and public servant. When Olney returned to Washington to take office Mrs. Burger and I had a reception at our "farm" house, "Holly Hill." The Chief Justice and Mrs. Warren and I walked around the six acres of woods and gardens and he said somewhat sadly that he wished he had settled in the country in 1953 rather than in a Washington apartment.

During July and August of 1969 when I needed background information I went to Justice Black who was most cordial and helpful. Later, as problems arose and I needed background about the Administrative Office of the Courts and the work of the Judicial Conference and its committees, I frequently went to Chief Justice Warren's chambers and consulted with him to understand the background. He was always helpful but he protested that he should come to my chambers for these discussions. I told him I needed the exercise and, in any event, I, as the one seeking information should go to the source. That cooperative relationship continued throughout his lifetime.