Television's first interview with a chief justice

`IT'S always been somewhat comforting to know that I have been castigated by so-called liberals for being too conservative and castigated by so-called conservatives for being too liberal,'' says Warren E. Burger, retiring chief justice of the United States, in an unprecedented television conversation with Bill Moyers -- the first TV interview ever conducted with a sitting chief justice in the courtroom of the Supreme Court. The Burger Years -- A CBS News Special (CBS, Wed., 8-9 p.m.) was taped on the day in June when Chief Justice Burger announced his plan to retire in order to devote his full time to his duties as chairman of the Commission on the Bicentennial of the Constitution of the United States. In view of his reluctance to speak out on some issues and his professional reticence about delving into current cases while still serving as chief justice, it might have been wiser for correspondent Moyers to wait until Mr. Burger had left office. But whether or not the sometimes inarticulate chief justice will ever be more forthcoming remains to be seen.

Meanwhile, it is quite an accomplishment for Moyers to have gotten Burger to sit down and insist that, although he was a Nixon appointee, he did not lose any sleep the night the court issued the order for President Nixon to turn over the Watergate tapes. ``It was a Constitutional issue that had really been decided in 1807 by John Marshall, when he sat as the trial judge in the trial of Aaron Burr,'' Burger explains. ``. . . If you let what you are doing affect your sleep . . . you'd be an insomniac.''

Burger says that President Nixon accepted what Moyers calls ``a prevailing tendency in the American tradition to submit to a higher law.'' Says Burger: ``President Nixon accepted this law. Now that doesn't mean he agreed with it. But he accepted the concept that, when this Court acts, he, even as President of the United States, would accept it.''

Often trying to avoid unequivocal statements, Burger makes his position clear, although sometimes indirectly, about several major issues:

One cannot say the death penalty is ``cruel and unusual punishment'' as long as 37 or 38 states approve it.

The time has come to reexamine the whole issue of abortion.

The issue of prayer in the schools is not one crying to be resolved. ``Whether or not we have it in the schools is not going to affect the Republic in terms of its failing.''

As conditions change, one must try to figure out what the Constitution means in relation to that particular problem, and as long as one is dealing with fallible human beings, mistakes are going to be made. ``Congress can review us and change us [sic] when we decide a statutory question . . . , but when we decide a constitutional issue . . . that's it, until we change it or the people change it. . . . The people made it, and the people can change it. The people could abolish the Supreme Court entirely.''

A new constitutional convention would be ``a grand waste of time.''

At one point Moyers asks the chief justice if he favors television coverage of Supreme Court proceedings and gets a resounding, nonequivocating answer:

``Never! I once said `over my dead body,' and then I reflected and thought this might give the networks too much of a temptation.''

Both interviewee and interviewer agree that there might never have been a Constitution if there had been television cameras at the Constitutional Convention. When Moyers indicates that he upholds the ironclad code of silence which binds all the members of the Supreme Court, Burger jokes: ``You're going to be excommunicated not only from the Baptist Church but from the journalistic fraternity.''

Correspondent Moyers, respectfully yet probingly holding his own, says that many people are troubled by the fact that ``to be heard, you almost have to be a celebrity or have great wealth. Today free speech becomes what you can afford to buy.''

The chief justice responds with a laugh: ``I don't know. I've gotten quite a bit of exposure for nothing.''

When Moyers protests that this is because he is an official in a high place, Burger becomes serious. ``It's something that has to be watched very closely. . . . Come and see me sometime when I become chief justice emeritus and maybe we could talk about that.''

Burger says his departure from the bench is justified because ``I consider the Bicentennial of the Constitution -- the program telling the story of how it was founded and what it means, a civic lesson for all of us -- more important than whether I stay in that center chair for another year, another two years.''

Next year Moyers should consider approaching the chief justice emeritus to talk about the Constitution. Perhaps then Burger will also feel free to talk frankly about the issues facing the court.

Then he will be able to state opinions boldly, without the professional discretion that makes this interview, produced by Marianna C. Spicer under the aegis of executive producer Perry Wolff, a fascinating but frustrating reminiscence.