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Remarks on the Resignation of Supreme Court Chief Justice Warren E. Burger and the Nominations of William H. Rehnquist To Be Chief Justice and Antonin Scalia To Be an Associate Justice

June 17, 1986

The President. On May 27, 1986, Chief Justice Burger advised me that he wanted to devote his full energies in the coming year to the important work of the Commission on the Bicentennial of the Constitution and for that reason would be retiring as Chief Justice of the Supreme Court as of the end of the Court's current term. Today I received with regret Chief Justice Burger's letter formally notifying me of his retirement.

And immediately after my conversation with the Chief Justice, I directed my Chief of Staff, together with the Attorney General and the Counsel of the President, to develop recommendations for a successor. And I am pleased to announce my intention to nominate William H. Rehnquist, currently an Associate Justice of the Supreme Court, as the new Chief Justice of the United States. Upon Justice Rehnquist's confirmation, I intend to nominate Antonin Scalia, currently a Judge of the United States Court of Appeals for the District of Columbia Circuit, as Justice Rehnquist's successor.

In taking this action, I am mindful of the importance of these nominations. The Supreme Court of the United States is the final arbiter of our Constitution and the meaning of our laws. The Chief Justice and the eight Associate Justices of the Court must not only be jurists of the highest competence, they must also be attentive to the rights specifically guaranteed in our Constitution and to the proper role of the courts in our democratic system. In choosing Justice Rehnquist and Judge Scalia, I have not only selected judges who are sensitive to these matters, but through their distinguished backgrounds and achievements, reflect my desire to appoint the most qualified individuals to serve in our courts.

Justice Rehnquist has been an Associate Justice of the Supreme Court since 1971, a role in which he has served with great distinction and skill. He is noted for his intellectual power, the lucidity of his opinions, and the respect he enjoys among his colleagues. Judge Scalia has been a Judge of the United States Court of Appeals for the District of Columbia Circuit since 1982. His great personal energy, the force of his intellect, and the depth of his understanding of our constitutional jurisprudence uniquely qualify him for elevation to our highest court. I hope the Senate will promptly consider and confirm these gifted interpreters of our laws.

And in closing, I want to say a word about Chief Justice Burger. He has led the Supreme Court for 17 years, a time of great change, and yet a period also of consolidation and stability in the decisions of the Court. Under Chief Justice Burger's guidance, the Court has remained faithful to precedent, while it sought out the principles that underlay the framers' words. He is retiring now in order to devote his full attentions to a momentous occasion in our country's history: the observance in 1987 of the 200th Anniversary of the Constitution. This is an endeavor for which all Americans will be grateful and to which I and the members of the administration will lend our total support.

I'm proud and honored to stand here today with Chief Justice Burger, with Justice Rehnquist, and with Judge Scalia, and to discharge my constitutional responsibilities as President of the United States. Thank you all. God bless you.

Q. Mr. President, what impact do you think this will have on the abortion issue-perhaps the most emotional issue facing the Court?

The President. It probably won't surprise you when I tell you that I'm not going to take any questions now. Chief Justice Burger is here and available for any questions you might have of him, and I think the others of us.—

Q. Are you satisfied that the judge agrees with you on the abortion issue, though, sir? The President. What?

Q. Are you satisfied that the judge agrees with you on the abortion issue?

The President. I'm not going to answer any questions. If I start answering one, I'll—

Q. Mr. President, what was the process which led you to Judge Scalia? Did you know him before? Did people come to you and recommend him? What was the process?

The President. I'd previously appointed him into his present judgeship.

Q. Well, what made you think that he was the appropriate choice for this job?

Q. Well, surely you must think, sir, that he agrees with you on such issues as abortion, affirmative action, prayer in the schools?

The President. That's a question, and as you said—

Q. Why didn't you appoint Mr. Meese?

The President. I can't say no questions; I can say no answers. [Laughter]

Q. Mr. President, without a question, could you tell us a little bit about the new Justice—whatever you can?

Mr. Wallison. We'll have a background-.

The President. There will be background material—

Q. But, I mean, for the American people, because we.-

The President. that will be made available to you.

Q. Do you know him personally?

The President. Yes.

Q. Do you want to take questions on another subject? Have you heard from Gorbachev on the summit yet, sir?

The President. No, I think the subject today is justice.

Q. Well, could we ask Justice Burger?

Chief Justice Burger, could you

Q. Did he recommend his successor?

The President. No, the Justice said that he would not presume to do that. He did discuss with me individuals and give me his opinion of them.

Q. Well, Mr. Chief Justice, maybe it's appropriate now to ask you to give us your thoughts after, what, since 1969—17 years in the Court?

Chief Justice Burger. Seventeen years, yes.

Q. Sum up your tenure. What do you think you've done for this Court?

Chief Justice Burger. That would take me about 17 years, and you don't want to spend that much time. [Laughter]

Q. Why are you leaving the Court, sir? Could you explain a little bit why you're leaving the Court?

Chief Justice Burger. For one primary reason: that the 200th Anniversary of the Constitution got a late start—the celebration got a late start. It is vastly underfinanced, and 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. John Warner, the Chairman of the '76 event, you remember, was drafted from his job as Secretary of the Navy, which he did not want to leave; and being an old friend, he told me, when this subject came up last year, that the job of Chairman was a full-time job. I already have two full-time jobs, as you know: a job as a Justice of the Court and the other job with all the vast administration problems. And it just isn't feasible to have three full-time jobs.

Q. Is it a matter of health, sir? I mean, people don't leave the Court except for matters of health, normally.

Chief Justice Burger. Well, you make the diagnosis. Do I look as though I'm falling apart? [Laughter]

Q. No, but, sir, is

Q. Well, it's not how you look, it's how you feel. I mean, was it a matter of health, sir?

Chief Justice Burger. Never felt better in my life.

Q. Are you pleased with the direction that the Court has taken? How would you assess your tenure in the Court?

Chief Justice Burger. I wouldn't try to assess it. I leave that to other people to do it.

Q. Do you leave it with satisfaction, sir-that you have accomplished what you set out to?

Chief Justice Burger. Not everything I set out to, no.

Q. Could you tell us a little bit about what you're sad not to have finished?

Chief Justice Burger. What I did not finish was an absolute imperative, and that's to experiment with this intermediate panel that is now pending before the Congress. It's a 5-year experiment. It won't cost any money, and that's, perhaps, why it doesn't attract much attention in Washington. It literally will cost nothing except to bring the judges from wherever they are into Washington.

Q. Did you participate in a judgment on the Gramm-Rudman ruling?

Chief Justice Burger. I'm going to answer this other question first. That bill is pending. It would take about 50 cases a year off of the Supreme Court. And at the present time, if you're doing your homework—those of you who are regulars on the Court-you'll find that there are 50 to 100 cases denying cert, where one, two, or three Justices file a dissent and say this case ought to be taken. There are important cases that ought to be taken that aren't taken. You know, we've gone from Chief Justice Warren's first year with 65 signed opinions, and we've been running over 150 for the last 4 or 5 years. We've gone from 1,400 and some filings back in Earl Warren's day to nearly 5,000—nearly 100 a week. The Court's got to have some relief somewhere. I'm astonished that we haven't had some judges fall over with coronary thrombosis or some other illness of exhaustion and overwork. But, going back specifically, the only health problem that I know I have is the one that I have had since I was 10 years old, and that's a polio back from having polio. And apart from the ordinary mental deterioration that occurs after age 40- [laughter] —

Q. Did you approve of the new appointment on the Court?

Chief Justice Burger. I beg your pardon?

Q. Do you approve of the appointment of Judge Scalia?

Chief Justice Burger. Well, the Constitution doesn't give the Chief Justice any authority on the subject.

Q. But do you have a personal—

Chief Justice Burger. I have known each of these men. I've known Justice Rehnquist as a colleague for now, what, 15 years?

Justice Rehnquist. Fifteen years, Chief. Chief Justice Burger. And I've known Judge Scalia since the time he was an Assistant Attorney General. He's participated in extrajudicial activities, like being a member of the American team visiting England to study some of their methods. We are not close friends. I have a high regard for each of them, a high regard.

Q. Sir, had you grown weary of being Chief Justice, sir?

Chief Justice Burger. No, I'm not weary of it. No, I would like to have stayed until we got some of this remedy that I told you about. But I think.

Q. Why aren't you?

Chief Justice Burger. I think the constitutional celebration is more important. And after all, there are some other people that can carry on this work. It's just up to the Senate.

Q. Can we talk to Judge Scalia and ask

Q. Justice Rehnquist?

Q. Can we ask Judge Scalia about his background?

Q. Has the court ruled on Gramm-Rudman?

Chief Justice Burger. I don't know which question

Q. Mr. Chief Justice.

Q. Mr. Chief Justice

Chief Justice Burger. Have you had the Miranda warning yet? [Laughter]

Q. Mr. Chief Justice, it's suggested that you withheld the ruling on Gramm-Rudman because there was a leak, and that out of pique the Court withheld the ruling. Can you enlighten us on that?

Chief Justice Burger. I thought that came down last week. Did you all miss it? [Laughter]

Q. Yes.

Q. Yes, tell us about it.

Q. And are you denying that you've ruled and affirmed the lower court finding of unconstitutionality of Gramm-Rudman?

Chief Justice Burger. Well, don't you go back and read those things. We came down a week ago?

Q. I missed it.

Chief Justice Burger. You missed it?

Q. Justice Rehnquist, could we ask you your thoughts about being nominated for the highest judicial post in this country?

Justice Rehnquist. Well, I'm deeply gratified by the confidence that the President has shown in me by making the nomination. I'll do my best to deserve that confidence.

Q. Mr. Rehnquist, how is your health? I hate to be a one track, but you've had some problems in the past. What

Justice Rehnquist. I think I won't answer any further questions of the kind that might come up before the Senate confirmation committee.

Q. But you will have a more conservative Court now, won't you?

Justice Rehnquist. I stand by what I said a moment ago. I'll defer all those answers till the Senate Judiciary Committee meets.

Q. Your health will be a matter of questioning then?

Q. Judge Scalia, can you share your thoughts with us as a new nominee—as much as you can say about your philosophy?

Judge Scalia. Yes, on the substance of it, I think I'm with Justice Rehnquist. I know a good idea when I hear one. [Laughter]

Q. What about your personal thoughts?

Judge Scalia. My personal thoughts are-for somebody who spent his whole professional life in the law—getting nominated to the Supreme Court is the culmination of a dream, of course. And I'm greatly honored that the President would have such confidence in me and hope that the Senate will do so as well. And I'll certainly do whatever I can to live up to it.

Q. Did administration officials, sir, question you on your views on Rowe v. Wade?

Judge Scalia. I think I respond the way Justice Rehnquist does.

Q. No, I'm not asking your personal view

Q. Are you a Republican?

Q. of that subject, sir. I'm wondering whether you were questioned before your selection was made on that subject?

Judge Scalia. If the Senate wants to ask that, they may. But I don't want to get into

Q. Do you expect a prime controversy in the Senate confirmation?

Judge Scalia. I have no idea. I'm not a politician.

Q. Judge Rehnquist, an administrative question: How do you feel about television coverage of the Supreme Court? [Laughter]

Justice Rehnquist. You can call it an administrative question if you want to, but it comes under the same rubric that I indicated a moment ago. I'll defer all questions like that.

Q. Would you carry on in the same tradition as Chief Justice Burger? Do you consider the mandate to carry on in the same tradition as Chief Justice Burger or would you make changes?

Justice Rehnquist. Again, I will defer those questions.

Q. Mr. Chief Justice, how

Q. Mr. Chief Justice, some people suggest that the Supreme Court has become more sharply divided under your tenure. First of all, do you agree with that, and how would you characterize the general level of comity among the Justices today?

Chief Justice Burger. It has not become more sharply divided. If you go back and read the opinions over 35, 40 years, you'd find there just isn't any substance to that. The reason there are nine people up there—and there are days when I'd like there to be just one— [laughter] —the reason you have nine is to have this interchange and interplay. It goes on all the time. In the 17 years I have been there presiding over the conferences, never once, never once has a voice been raised in any discussions. They're vigorous discussions, as they should be—always will be, I hope. We have cordial and good relations. We can disagree in a civilized way, and we do.

Q. Mr. Chief Justice.—

Q. Mr. Chief Justice, since you are not going before the Senate, perhaps you can give us your views on whether these new appointments will change the philosophy or direction of the Court in the next few years.

Chief Justice Burger. Well, I could if I thought about it a great deal, but I haven't thought about it, so I would not entertain it.

Q. Well, you know Judge Scalia better than anybody else in this room. Give us a little sense, if you would—

Chief Justice Burger. No, I wouldn't say I know Judge Scalia better than anyone else in this room.

Q. Better than anyone else on this side of the room. [Laughter]

Chief Justice Burger. Then some of you haven't been on the job, doing your homework.

Q. We cover the White House.

Q. When did you first hear that it was going to be announced?Q. When?

Q. Justice Burger

Chief Justice Burger. I don't know, a day or two ago.

Q. And.—

Q. Could you tell us—

Q. Sir, what will you miss most about being Chief Justice?

Chief Justice Burger. Really nothing. [Laughter]

Mr. Speakes. Your press officer reminds me you have a press conference at 6 if you would like to save some.

Chief Justice Burger. Yes, there's going to be a conference at 6 up at the Court. I dare not say that we're going to serve coffee and sandwiches, because we have only prepared coffee and sandwiches for the regulars. The reason it has to be at 6 is that I had agreed with Mr. I should know all of these famous people in television—

Mr. Speakes. Moyers [Bill Moyers, CBS News].

Chief Justice Burger. Moyers, Bill Moyers, a talk with Bill Moyers on— [laughter] just

Q. He's going to be mad you didn't let him announce it.

Chief Justice Burger. just one subject, and that's the Bicentennial. That's the only subject I will discuss.

Q. Mr. Meese, are you disappointed that you were not nominated?

Q. Justice Burger, was your decision to retire at this time related at all to a desire to have President Reagan appoint your successor?

Chief Justice Burger. Well, if that had been my desire, I had quite a bit of time to wait here.

Q. Can you tell—

Q. Attorney General Meese, could you come up and talk to us for a moment, sir?

Q. Chief Justice Burger

Attorney General Meese. This is the Chief Justice's conference, not mine.

Q. Chief Justice Burger, can you tell us—

Q. Can you address—

Q. a little something about your tendering of the resignation with the President? Did you personally come over

Chief Justice Burger. I just gave it to him 10 minutes ago.

Q. And what happened? Can you tell us a little of the conversation?

Chief Justice Burger. He said, "Thank you," as I remember. [Laughter] I think maybe he and his staff were a little relieved. All they had was a word of mouth from me before, and if I hadn't shown up with that letter today, you'd have really had a problem. [Laughter]

Q. Chief Justice, what was the reason Chief Justice Burger. And by the way, you'll all get copies of that letter if you'd like it.

Q. Thank you.

Q. Mr. Chief Justice, what was the reason for the timing of the announcement today of the change in the Court? The President said you decided on your resignation last month. Why was it all announced today?

Chief Justice Burger. You'll have to ask the President that. I don't know the timing.

Q. Mr. Chief Justice, if it were not for the Bicentennial, would you've retired? When? I mean, do you have any views—

Chief Justice Burger. By my letter, as you will see, the effective date is July 10th. We hope to conclude the term before that, but there is always a certain amount of administrative debris to be cleared up and-

Q. But were it not for the Bicentennial, would you have retired? At what stage?

Chief Justice Burger. No. No, if it were not for the Bicentennial, I would not have retired.

Q. What was your toughest case? Some people have suggested it was the Nixon tape case. After all, he appointed you to the Court, you joined the unanimous judgment which forced him to turn over those tapes, which were his undoing.

Chief Justice Burger. That was not the toughest.

Q. What was it?

Chief Justice Burger. I really don't know. I'd have to give you a list of about 25 or 30. In fact, a couple that are coming down very soon and that one last week that you fellows all missed—[ laughter]-

Q. No.

Q. Is that a tough one?

Q. When are we going to get-Chief Justice Burger. Beg your pardon?

Q. When will we get that Gramm-Rudman opinion?

Chief Justice Burger. Sometime before the 10th of July, I hope.

Q. Do you think others on the Court should emulate you?

Chief Justice Burger. In what respect? [Laughter]

Q. Retiring? [Laughter]

Q. Judge Scalia, would you call yourself a tough judge?

Judge Scalia. I think that's in the category of questions I think—

Q. Can you tell us when you were first approached by the administration? Just give us a sense of the timing—when you first heard and what the feelings were?

Judge Scalia. I think if the President wants that to be known, I'm sure he'll tell you.

Q. Well, why were you picked?

Mr. Speakes. We do have a person to give you all that information if you relinquish-

Q. Well, we'd rather have it from these people, themselves.

Q. Judge Scalia, could you tell us where you went to school and what your background is?

Mr. Speakes. We have that in the bins at this very moment.

Q. But we'd love to have it on tape.

Q. Judge Scalia, many of the judges appointed by this administration are said to have been subjected to a rigorous screening process conducted under Attorney General Meese. Were you at all—Roe v. Wade aside—asked any of your positions on various points of law?

Judge Scalia. I have no idea what the screening process was. And, again, you'd have to ask the Attorney General.

Q. No one spoke to you, sir?

Judge Scalia. I speak to people all the time.

Q. But I mean, there was no screening process directly with you?

Judge Scalia. I'd prefer not to answer that.

Q. Have you ever met the President of the United States before today?

Judge Scalia. Yes, I had met the President before today.

Q. On this subject of your appointment?

Q. Judge, can I ask you a question that you can answer? Can you give us the pronunciation of your name? [Laughter] I've heard it—

Judge Scalia. I'd be happy to do that-Sca-le-a.

Q. First name?

Q. Mr. Chief Justice, did you at any point consider telling the President that, you know, you just don't have time to run the Bicentennial—the Constitution—that, in fact, you're the Chief Justice of the United States, and you'd rather do that?

Chief Justice Burger. Nobody that I know of could do all three of the jobs that I spoke of that I've been trying to do for this last year. One week, recently, after I had been carrying around a walking flu bug, one of my staff informed me that I had logged 105 hours that week. Now, 80 and 90 I can handle, but I'm getting a little too old for 105.

Q. Well, I think what has us all astounded here is the fact that you are the Chief Justice of the United States and you're putting that aside to handle a job that in fact is going to be over in a year.
Chief Justice Burger. No, 3 years.

Q. Well, 3 years, whatever. Did you figure perhaps you would let the President take that burden off of you so you could remain as Chief Justice, or were you simply weary of being Chief Justice?

Chief Justice Burger. No, I wasn't weary of being Chief Justice. It's a lot of fun. But I go back to what I said first. We have an inadequate preparation for the Bicentennial of the Constitution. It's a remarkable story. It's one of the great, great stories in American history, and it's our job to tell it. And we're just getting organized. We haven't got a main headquarters yet. We're scattered in three buildings. We've got, for Washington, a piddling appropriation of $12 million, and 10 years ago John Warner had over $200 million. If we're going to celebrate this thing in the proper way and have people get an understanding—in this country and elsewhere—about what freedom means and that this is the instrument that gave that freedom and how it works, there is a lot of work to be done. I expect to be working literally full time.

Q. You said this was the primary reason that you were resigning.

Chief Justice Burger. That's right.

Q. What would the secondary reason be, if any?

Chief Justice Burger. I didn't have a secondary reason.

Q. Mr. Meese, can you tell us how the Court might change with these changes? Attorney General Meese. No.

Q. Mr. Justice Rehnquist

Q. Are you disappointed you weren't named?

Attorney General Meese. No.

Mr. Speakes. I think the growing consensus, if we took a vote, would be time to conclude. These gentlemen will be before the Senate, and this gentleman will be before the press this afternoon.

Q. Larry, just one question of Mr. Justice Rehnquist that perhaps he could answer without violating his duties to the Senate.

You, sir, have had a reputation more as a thinker and writer on the Court than as an administrator. Do you, too, consider it the culmination of a dream to be Chief Justice and thus have to take on all these administrative tasks?

Justice Rehnquist. 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. [Laughter] And you take on some things you don't like along with a lot of things that you do like.

Chief Justice Burger. In that respect, there is a perfect parallel. Bill Rehnquist is the same age I was when I was nominated back in the Garfield administration, I think it was. [Laughter]

Q. Ronald Reagan was 69 or 70 and he got a new job.

Q. Mr. Chief Justice, how have you seen the Court change philosophically during your tenure?

Chief Justice Burger. I think I got just part of that question. Has it changed philosophically?

Q. How, sir? How have you seen it change philosophically during your tenure?

Chief Justice Burger. Well, if you look over the history of the Supreme Court of the United States or of the country, you will find at different periods there are different needs and different problems and there are different answers. And then sometimes you find that an answer that you gave 2 years ago or 3 or 5 doesn't quite fit, and you adjust it. We have been doing some adjusting. That was done in the previous 15 years, but we haven't done a fraction of that adjusting that was done in the 15 years before my tenure began.

Q. Do you regret any of your decisions, sir? Any of the opinions you wrote? Would you like to change them?

Chief Justice Burger. I wish some of them were a little shorter. [Laughter]

Q. Just to follow up on my question.

Q. Mr. Chief Justice, you've had a good relationship with the American Bar Association throughout your tenure as Chief Justice. Are you at all concerned that the ABA was not consulted, apparently, about your replacement on the Court?

Chief Justice Burger. I don't know anything about the procedures, not a thing. I have never understood that the appointments to the Supreme Court automatically were cleared with the American Bar. Sometimes they are consulted, and sometimes they're not.

Q. Mr. Chief Justice, if I could follow up on my question.

Mr. Speakes. Go ahead.

Chief Justice Burger. The last one.

Mr. Speakes. The Justice has ruled. Chief Justice has ruled—last one.

Q. You said that there had not been nearly the changes during your tenure as in the preceding 15 years. Does that mean there was less need for change or it just did not happen?

Chief Justice Burger. I'll leave that to you.

Q. Okay.

Chief Justice Burger. Objective observers are a better judge of that than I am.

Q. Are you going to hand down Gramm-Rudman tomorrow?

Chief Justice Burger. I thought it was last week.

Q. Judge Scalia, can we get the pronunciation of your first name?

Judge Scalia. An-ton-in is what I've always-

Q. Antonin Scalia?

Judge Scalia. That's right.

Q. And so forth it shall be.

Judge Scalia. Well, all right. [Laughter]

Q. Does your wife know about this?

Mr. Speakes. Do you want to file?

Q. Yes.

Mr. Speakes. Okay. At 2:40 we will have the background briefing. You have the two announcements in the bins, the exchange of letters, and I believe the statement by the President all in there.

Note: The President spoke to reporters at 2 p.m. in the Briefing Room at the White House. Peter J. Wallison was Counsel to the President, and Larry M. Speakes was Principal Deputy Press Secretary to the President.

Ronald Reagan, Remarks on the Resignation of Supreme Court Chief Justice Warren E. Burger and the Nominations of William H. Rehnquist To Be Chief Justice and Antonin Scalia To Be an Associate Justice Online by Gerhard Peters and John T. Woolley, The American Presidency Project

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