Warren Burger was appointed Chief Justice during a tumultuous time. 1968, a year of assassinations and riots had just passed. In May 1969, almost all American institutions were under attack, casualties of the Vietnam War and a decade of racial tension. Lyndon Johnson, elected in a landslide in 1964, has been too unpopular to stand for reelection. His successor, Richard Nixon, proved to be among the most controversial American political figures of the Twentieth Century. Earl Warren, Burger’s predecessor, had been among the most controversial Chief Justices in history as a result of decisions attempting to bring about racial equality and giving expansive readings to the Bill of Rights. The man Johnson had chosen to replace Warren, his close friend and advisor, Abe Fortas, not only was unable to win confirmation, but days before Burger was appointed, resigned from the Supreme Court bench under an ethical cloud.

 

Burger’s Appointment

Earl Warren announced his resignation in the summer of 1968. After Fortas failed to be confirmed because of a successful filibuster by Senate Republicans and Southern Democrats, President Johnson refused – some thought petulantly – to nominate anyone else, so the vacancy awaited filling by President Nixon, who asked Warren to remain as Chief Justice until the end of the Court’s term.

Several leading possibilities had taken themselves out of the running – former New York Governor and Presidential candidate Thomas E. Dewey, Eisenhower’s Attorney General, Herbert Brownell, and Justice Potter Stewart. After Fortas’s resignation, Nixon believed it important that he not choose a close personal friend. That eliminated Secretary of State William Rogers and his old friend, Charles Rhyne.

President Nixon was more keenly aware than most Presidents have been of the importance of nominating a Chief Justice and was more careful and more personally involved than many of his predecessors. Nixon appears to have given particular weight to such factors as age, legal qualifications and integrity.