Burger to Retire; Rehnquist Nominated for Chief Justice : Appeals Judge Antonin Scalia Also Selected

Chief Justice Warren E. Burger announced Tuesday that he is retiring after 17 years on the Supreme Court, and President Reagan nominated Justice William H. Rehnquist as the new chief justice and federal appeals Judge Antonin Scalia to replace Rehnquist.

Reagan, singling out judicial restraint as a major reason for his choices of Rehnquist and Scalia, told a packed White House briefing room: “I am mindful of the importance of these nominations.”

Although Burger is also noted for his conservative philosophy, a senior Administration official told reporters that the changed face of the court would nonetheless prove “one of the most significant decisions of this presidency.” He predicted that Rehnquist and Scalia “will have enormous influence over the direction of the court for many years.”

Confirmation Expected

The Senate is expected to confirm the nominations of both Rehnquist and Scalia with little opposition.

Rehnquist, who was appointed to the court in 1971 by former President Richard M. Nixon, has consistently opposed abortion, school busing and affirmative action and regularly supported law enforcement officials in their continuing legal struggle with criminal defendants.

Scalia, who, if he is confirmed, will be the first Italian-American to sit on the court, refused to answer any substantive questions for fear of prejudicing his Senate confirmation hearings. He called his appointment “the culmination of a dream.”

Scalia is now a judge on the U.S. Appeals Court for the District of Columbia.

To Leave July 10

Burger, whose resignation had been widely predicted for next year, triggered Tuesday’s reshuffling of the court with a visit to the White House on May 27. He told Reagan that he wanted to leave the court in order to devote full time to his role as chairman of the Commission on the Bicentennial of the U.S. Constitution. His resignation is effective July 10, after the court issues the final opinions of its current term.

Appearing before reporters Tuesday, he said the 200th anniversary celebration had gotten a late start and was “vastly underfinanced.” He added: “We’re going to have the devil’s own time trying to do the kind of a job that ought to be done for this great event.”

Reporters questioned why Burger would leave one of the nation’s most influential positions to concentrate on the chairmanship of a committee that will go out of business in a short time. Burger, who will turn 79 in September, denied suggestions that he resigned to ensure that Reagan could name his successor or that his health played a role in his decision.

“You make the diagnosis,” he challenged a reporter. “Do I look like I’m falling apart?” He said he had recently had “the walking flu” but “never felt better in my life” and was “not weary” of the job.

But Administration officials did not conceal their happiness at having gained an actuarial edge with the promotion of Rehnquist, 61, to chief justice and the addition of the 50-year-old Scalia to the court.

Noting that Scalia is “young enough to remain on the court for many, many years,” an Administration official, who spoke on the condition that he not be identified, said: “That is a pleasant prospect for many people and certainly the President.”

When Rehnquist was asked how he felt about taking on the administrative tasks of the chief justice, he joked: “I wouldn’t call it the culmination of a dream, but it’s not every day when you’re 61 years old that you get a chance to have a new job.”

Rehnquist, who has a history of back problems, suffered a drug reaction in 1981 that resulted in slurred speech and signs of some mental impairment. He was hospitalized for several days and was treated for a withdrawal reaction to a drug he was taking to help him sleep.

The Administration official who briefed the press said that Rehnquist had told Reagan in a private meeting last week that he had recently had a physical and was found to be in good health.

List of Candidates

After learning three weeks ago of Burger’s decision to resign, Reagan asked Atty. Gen. Edwin Meese III, White House Chief of Staff Donald T. Regan and White House counsel Peter J. Wallison to come up with recommendations for both chief justice and, if that position were filled from within the court, a new associate justice.

The three officials reported to Reagan on June 9 with a list of 10 to 15 candidates, along with written synopses of their judicial histories, White House officials said. On the basis of that, Reagan asked to see Rehnquist. The two met last Thursday, and Reagan offered Rehnquist the job of chief justice on the spot.

Friends of Rehnquist expressed some surprise that he was willing to take on the additional responsibilities because he has talked longingly for some time about retiring soon to Vermont. When asked if Rehnquist had indicated any reluctance in his meeting with Reagan, Meese said, “That was a matter of private conversation,” but he insisted that there was “nothing in the conversation . . . that indicates a reluctance to serve.”

Reagan met with Scalia on Monday afternoon. Scalia was the leading contender based on Reagan’s reading of a written brief of his overall philosophy compiled by Meese and Wallison. “He liked what he saw,” an official said.

Meese said Scalia was chosen largely because of “a commitment to the interpretation of the law rather than being a lawmaker.”

Meese, who himself was once considered a likely candidate for a Supreme Court opening, was evidently never considered in this round. Officials said that the list Reagan saw included only sitting Supreme Court justices, members of various appeals courts and one or two judges of other courts.

An Administration official said that Reagan particularly admired Scalia for his “judicial restraint.” At the same time, this official said he did not know whether Scalia had ever ruled on abortion law. He called it “fantasy” that opposition to abortion is used as a litmus test for a court appointment in the Reagan Administration.

Irritated by the number of questions about the possible impact of Scalia’s appointment on such controversial social issues as abortion, this official, when asked how the “complexion” of the court would change, retorted breezily: “It’s ruddier.”

Staff writer Ronald J. Ostrow also contributed to this story.