Lay, Donald P.

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A Tribute to Warren E. Burger

Mitchell Hamline School of Law

William Mitchell Law ReviewVolume 22 | Issue 1 Article 51996A Tribute to Warren E. BurgerDonald P. LayFollow this and additional works at: http://open.mitchellhamline.edu/wmlrThis Article is brought to you for free and open access by the Law Reviewsand Journals at Mitchell Hamline Open Access. It has been accepted forinclusion in William Mitchell Law Review by an authorized administratorof Mitchell Hamline Open Access. For more information, please contactsean.felhofer@mitchellhamline.edu.© Mitchell Hamline School of LawRecommended CitationLay, Donald P. (1996) "A Tribute to Warren E. Burger," William Mitchell Law Review: Vol. 22: Iss. 1, Article 5.Available at: http://open.mitchellhamline.edu/wmlr/vol22/iss1/5A TRIBUTE TO WARREN E. BURGERThe Honorable Donald P. LaytI first met Warren Burger when he was a United Statescircuit judge on the prestigious District of Columbia Court ofAppeals. I had just been appointed to the Eighth Circuit in1966. I attended the Appellate Judges' Seminar at New YorkUniversity for newly-appointed judges. At that time, HarryBlackmun was on the Eighth Circuit; he was a good friend ofWarren Burger. Blackmun wrote ahead for me to meet JudgeBurger at the seminar. Burger was lecturing to the class of stateand federal judges on the law of insanity in criminal trials. I willalways remember the warm greeting and visits that I had withthis distinguished jurist. At the time, I felt as if I were just ababe sitting at the feet of many fine jurists, and Judge Burgermade me feel welcomed and relaxed.Harry Blackmun and Warren Burger had a mutual admira-tion for one another. They had grown up in Saint Paul asboyhood friends. Even though their careers had separated, bothin their own ways had attained singular distinction as outstand-ing jurists of two respected courts of appeals in the country. Iwill always remember Judge Blackmun, in oral argument in ourcourt, asking counsel if he or she were familiar with a case JudgeBurger had written on the District of Columbia Circuit. If not,Judge Blackmun would suggest it be read, since it "set out a well-written opinion in the field." I also recall a D.C. Circuit case towhich Blackmun would call to counsel's attention a dissentwritten by Judge Burger, describing it as "a better view of thelaw." Many people credit Chief Justice Burger for recommend-ing to President Nixon that then-Judge Blackmun be appointedto the Supreme Court. Blackmun was appointed after JudgeHaynsworth and Judge Carswell did not get congressionalapproval.After Blackmun went on the Supreme Court, the pressaffectionately dubbed Blackmun and Burger the "MinnesotaTwins." Although Blackmun's and Burger's viewpoints grewt Senior Judge, United States Court of Appeals for the Eighth Circuit.1Lay: A Tribute to Warren E. BurgerPublished by Mitchell Hamline Open Access, 1996WILLIAM M/TCIELL LAW REVIEWfarther apart on the Supreme Court, particularly after theabortion cases, they remained good friends down through theyears.I was privileged to serve under Chief Justice Burger on theUnited States Judicial Conference from 1980 until he retired asChief Justice. The Chief Justice consolidated conferencecommittees and gained a reputation as an excellent administra-tor. He held strong views on upgrading the federal courts. Hisleadership was instrumental in getting through Congress the billfor the appointment of federal magistrates. The Chief Justicehad studied the use of lay magistrates in England and believeda modified application could be used in the federal courts.Today, everyone recognizes that without such assistance, thedistrict courts would be overwhelmed in handling their casedockets.ChiefJustice Burger made many contributions to the federaljudiciary, and he was the guiding force in so many reforms.Throughout his tenure, he was interested in both prison andsentencing reform. He was influential in the move to haveCongress adopt the federal sentencing guidelines. The guide-lines sought to bring about changes in existing disparities insentencing; the reform also abolished the federal parole systemand all its inequities. The Chief Justice was challenged by theAmerican bar in his criticism of the quality of performance oflawyers, particularly at the trial bar. He sought separate lawyerlicensing standards to practice in the federal courts. Althoughthe Judicial Conference rejected compulsory standards, leavingthe licensing matters to state courts, his general concern broughtabout many needed state bar reforms, along with the institutionof much-needed continuing legal education programs in thevarious states.Chief Justice Burger also was the guiding force behind thecreation of the various American Inns of Court, which seek totrain young students and lawyers in trial advocacy skills. Inaddition, he promoted jury reform through a plan to betterutilize unused jurors called for duty, and he was a leader inreducing the size of civil juries from twelve to six as a means ofcost efficiency. In the federal courts today, the rules allow juriesof eight, with two of the eight sitting as alternates in the eventthat jurors are excused during the trial. In no event can a civiljury be less than six.[Vol. 222William Mitchell Law Review, Vol. 22, Iss. 1 [1996], Art. 5http://open.mitchellhamline.edu/wmlr/vol22/iss1/5CHIEF JUSTICE WARREN E. BURGER TRIBUTEPerhaps the ChiefJustice's greatest disappointment was thefailure of the bar and Congress to adopt his plan to create anational court of appeal. He urged the creation of a nationalcourt of appeal in order to decide splits by circuit courts onissues the Supreme Court allegedly did not have capacity to take.He predicted that this procedure would reduce the number ofpetitions of certiorari. Many of us on the Judicial Conferenceopposed the idea, since it was felt the creation of anotherintermediate court of appeal was not needed and would add todelay and excessive costs in litigation in the long run. The idea,however, is still alive. There is no question that the upwardtrend in the number of appeals in the federal courts, along withthe population growth in this country, will require some radicalchanges in our federal judicial structure in the future. Theprojection of caseloads ten to twenty years from now is frighten-ing.In my judgment, the most personal satisfaction that theChief Justice attained was after his retirement from the Court,when he became Chairman of the Commission on the Bicenten-nial of the United States Constitution. His leadership madeAmericans, particularly young students, aware of the significanceof the Constitution and its meaning to our overall way of life inthese United States. His introductory letter to a pamphletcontaining the Constitution exemplifies his goals and dedication:Ever since people began living in tribes and villages, theyhave had to balance order with liberty. Individual freedomhad to be weighed against the need for security of all.The delegates who wrote this Constitution in Philadel-phia in 1787 did not invent all the ideas and ideals it em-braced, but drew on the wisdom of the ages to combine thebest of the past in a conception of government of rule by "Wethe People" with limits on government to protect freedom.This Constitution was not perfect; it is not perfect todayeven with amendments, but it has continued longer than anyother written form of government. It sought to fulfill thepromises of the Declaration of Independence of 1776, whichexpressed people's yearning to be free and to develop thetalents given them by their Creator.This Constitution creates three separate, independentbranches of government, with checks and balances that keepthe power of government within the boundaries set by law.This system does not always provide tidy results; it depends ona clash of views in debate and on bargain and compromise.1996]3Lay: A Tribute to Warren E. BurgerPublished by Mitchell Hamline Open Access, 1996W/LLIAM MITCHELL LAW REViEWFor 200 years this Constitution's ordered liberty hasunleashed the energies and talents of people to create a goodlife.The Chief Justice always had a great sense of humor. OnJanuary 2, 1990, the Post Office honored the Supreme Court byissuing a stamp with Chief Justice John Marshall's picture on it.I have collected stamps since I was a young boy. I obtained thepersonal stationery from each of the Supreme CourtJustices andasked them to autograph the outside of their chamber enve-lopes. I then obtained first-day covers on each of the envelopesadorned with the John Marshall stamp. My grandson somedaywill inherit a unique and historical collection. When I made myrequest to the Chief Justice, he responded:Dear Don: Here it is. Not being a "stamp buff' I did notthink of this when the stamp was launched. They used a verypoor likeness of Marshall--as I remember him (you are tooyoung!). WEBBooks will be written about Chief Justice Burger which willdetail his many accomplishments; space here can only highlighta small segment of them. The nation, as well as the entirejudicial system, has benefited greatly from his life. WilliamMitchell College of Law has been deeply enriched by the ChiefJustice and the distinction he brought to the school. The libraryat William Mitchell College of Law, named in his honor, willalways provide a living memorial to his life. We at WilliamMitchell are fortunate indeed.[Vol. 224William Mitchell Law Review, Vol. 22, Iss. 1 [1996], Art. 5http://open.mitchellhamline.edu/wmlr/vol22/iss1/5

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