BURGER’S DAY IN MOYERS’ COURT

Retiring Chief Justice Warren E. Burger may have satisfied few people in 17 years of heading the U.S. Supreme Court. But he pleased CBS News in agreeing to a TV interview with Bill Moyers.

“Over the years he had been sending me handwritten notes about how he appreciated what I was doing on TV,” Moyers explained from New York. “So one time I wrote him a handwritten note back asking if he would sit down with me for an interview.”

In January, Burger said yes. The result is “The Burger Years--A CBS News Special” at 8 tonight on Channels 2 and 8, an hour that Moyers calls TV’s first extended interview of a sitting chief justice.

Moyers had no idea that he would be interviewing a retiring chief justice.

A camera crew and Moyers arrived for the interview June 17 as scheduled. “It was all set up,” he said. “We were in the Supreme Court chambers waiting for him and the next thing I know is that the White House has announced his retirement. About 45 minutes later, he came back from the White House and said he still wanted to do the interview.”

In that interview, spread across two sessions totaling four hours, Moyers begins by asking Burger the question that everyone has asked. Why would Burger relinquish his present position of awesome power for the stated reason of planning a celebration of the U.S. Constitution’s 200th birthday?

And Burger gives virtually the same answer he’s given before: “I consider that celebration more important than staying on the court for another couple of years.”

Yet the apparent suddenness of the announcement--on a day that he had designated for the CBS interview--suggests at the very least that Burger’s timetable was set by someone else.

“He seemed a little bit surprised that day,” Moyers recalls, “and a little bit dazed by the swiftness of events.”

In addition to presiding over the Supreme Court, Burger also heads the Commission on the Bicentennial of the Constitution. And Moyers believes that Burger is sincerely concerned that the Constitution’s birthday will not get its due.

“There was a little bit of envy about all the attention paid to the Statue of Liberty and Lee Iacocca,” Moyers said.

“But it’s my hunch--and it’s purely a hunch--that the White House took the hook he offered them and put on a fish he didn’t expect,” Moyers added. “I think that he said to the White House at one point that he was having trouble doing his job on the Supreme Court and his job on the commission, and that they promised to give him some help. And then someone at the White House said that if he’s going to retire, better he retire now. And some of his Republican friends told him that if he was thinking of retiring, this was the time to do it.”

By retiring now, Burger allowed President Reagan to fill the court vacancy with someone of his choosing instead of giving that choice to a future President who might be a Democrat or more liberal.

Burger initially agreed to the Moyers interview on the condition that it cover only the Constitution and bicentennial, but agreed to open it up a bit after his resignation.

He does not discuss cases currently before the court, but he does touch on broader legal issues. He argues, for example, that capital punishment is outside the Constitution’s ban of “cruel and unusual punishment.”

“It isn’t both cruel and unusual,” Burger says, “because it’s taking place every week.” The death penalty can hardly be termed unusual, he adds, “when 38 or 37 (it is 37) states are doing it.”

The interview also includes some playfully combative exchanges between interviewee and interviewer, as in this one concerning the court’s opposition to organized prayer in public schools.

Moyers: Now, I detect you personally would be in favor of letting children pray in school.

Burger: No, you detect wrong there.

Moyers: It happens with us journalists. I’m sorry.

Burger: . . .Yes, all too often. I don’t think it’s an issue that is crying to be resolved . . . that is, actual prayer in the school. The place for prayer is at home, primarily, and in church facilities. And whether we have it in the schools or not is not going to affect the republic in terms of its falling.”

The chief justice also displays a lively sense of humor, as in rejecting proposed telecasting of arguments before the court:

“Never. I once said, early, ‘Over my dead body,’ and then I reflected and thought this might give the networks too much of a temptation.”

At several points in the interview, Burger reveals a basic mistrust of the media. However, Moyers said on the phone that he believed Burger has a “certain lingering respect for our position in society, if not our performance in it. I think he has a disgust with our ability to trivialize issues, particularly law and justice, and I think that sometimes he thinks we’re brutes and animals. But he has not let his personal views infiltrate his opinions.”

There is little in the interview that reveals Burger the man, and he resists Moyers’ attempts to reach the individual beneath the institution.

Although Burger and two other members of his court were Richard Nixon appointees, rulings by the Burger court hastened Nixon’s exit from office in the Watergate scandal. But when asked for his personal reflections on Nixon, the chief justice begins tenuously, then stops abruptly. Then there is a long, uncomfortable pause and an awkward shot of Burger nervously drumming his fingers on his chair. Finally, Moyers mercifully breaks the silence.

What are we to make of this puzzling sequence?

“He just stopped,” Moyers said later. “He just looked into the camera for a long time. I think that was his answer (about Nixon). I think that it’s revealing that all this time later, that he cannot figure out what happened to the Nixon Presidency, that it was troubling to do what he did to bring down the President.”

As Moyers says to Burger in the interview: “Hard, isn’t it, just to look back?”