Chief Justice Warren E. Burger of the Supreme Court openly discussed "issues before the court" with President Nixon, Attorney General John N. Mitchell and Nixon aide John D. Ehrlichman in the White House, according to galley proofs of Ehrlichman's memoirs.
Ehrlichman says the discussions occurred on several occasions and, according to notes he says he kept, included the subject of school busing at a time when the government was involved in busing cases before the court. It is considered improper for a judge or justice to discuss pending issues outside the judicial process.
Ehrlichman also says that Burger was so eager to become chief justice in 1969 that he "was even willing to create another vacancy when Nixon wanted one" by agreeing to step down before Nixon left office. "If Burger was confirmed as chief justice he would serve for a time and then step down, Nixon told me a few days prior to Burger's confirmation," Ehrlichman writes.
"The president said he had Burger's promise that Burger would retire before Nixon did so that Nixon could then appoint another, younger chief justice to carry the Nixon mandate far beyond the Burger and Nixon years."
Burger said yesterday through a spokesman that he would not comment on the Ehrlichman allegations. "In answer to your query, the general practice here is not to respond to allegations, especially where former litigants are involved, and that will be done in this case, too," said Barrett McGurn, court spokesman.
But former attorney general Mitchell yesterday disputed the allegations, saying he recalled no meeting at which Supreme Court issues were discussed. "I can't conceive of the chief justice over at the White House discussing cases before the court. Certainly I was not a party to it," Mitchell said.
He also said Ehrlichman was the one who proposed asking Burger to step down before Nixon left office, and that the idea was never communicated to Burger. "It was a cute idea Ehrlichman came up with," Mitchell said. The comments about Burger are contained in a chapter of "Witness To Power," Ehrlichman's recounting of the workings of government during the Nixon administration. The book is scheduled for publication in March or April, and bound galley proofs were circulated to a number of reviewers. The Post obtained a copy independently.
Ehrlichman declined comment on any aspect of the book. But Michael Korda, editor-in-chief at Simon and Shuster, the publisher, said "nothing substantive" will be changed.
Nixon's office said the former president would have no comment.
Ehrlichman, Nixon's former domestic adviser, was convicted of involvement in the Watergate scandal, and served a prison term in part for falsely testifying before a grand jury.
The Ehrlichman galley proofs present a particularly unflattering portrait of the chief justice, whose vote in the Watergate tapes case helped bring down the administration and send Ehrlichman and others to prison.
If Burger had contacts with the Nixon White House, he would not have been the first Supreme Court justice to maintain such a line of communication. Former justice Abe Fortas was said to have had regular contact with President Lyndon B. Johnson, and the late Justice William O. Douglas with presidents during his tenure on the court. In the galley proofs, Ehrlichman describes Burger as "a man with aggrandizing tendencies." He says Burger repeatedly pressed the White House to support him in efforts to give an annual televised "State of the Judiciary" speech before Congress.
"We were not about to sponsor the Warren Burger Show on prime time," Ehrlichman writes. "Burger tried to sell his idea all over the city of Washington without success."
Ehrlichman says Burger also tried unsuccessfully to secure the use of presidential airplanes for his travels, including a trip to Europe.
"Burger did not permit minor disappointments over speeches or airplanes to impair his friendship with the president," Ehrlichman writes. "As an aspect of this campaign he sent a steady stream of notes and letters to Nixon, many of them through my office."
In turn, "The president and John Mitchell made a constant effort to keep in touch with Burger. The president had a notion that Burger's decisions on cases before the court were not always worked out with sufficient clarity," Ehrlichman says.
"On several occasions Nixon, Mitchell and I openly discussed with the chief justice the pros and cons of issues before the court." Citing his notes of a meeting of Dec. 18, 1970, Ehrlichman describes one such discussion. (Nixon's White House logs confirm that the president had breakfast on Dec. 18 with Burger, Mitchell and Ehrlichman.)
According to the galley proofs: "The president pointed out to the chief justice the enormous importance of the 'school cases' before the court. They discussed the issues of forced integration of the schools, the relative merits of 'tracking' and desegregation in northern schools and the president's intention to 'set the course' for the country."
Ehrlichman referred to the president's comments as "lobbying."
At that time the court was considering Swann vs. Charlotte-Mecklenburg Board of Education, a school busing case and one of the most important school desegregation cases since Brown vs. Board of Education in 1954.
The Nixon administration and Mitchell's Justice Department were involved as a "friend of the court" arguing for minimal busing. In early December, according to "The Brethren," a book by Bob Woodward and Scott Armstrong, Burger was circulating his first drafts of what, four months later, would be his opinion for a unanimous court in that crucial case which was interpreted as giving lower federal court judges wide latitude to remedy school segregation though a variety of means, including busing.
"Burger described the tremendous advantage Justices Douglas and Hugo Black had over Burger and Harry A. Blackmun when draft decisions were discussed in the court's conferences, 'because they had participated in the landmark cases.' "
Burger discussed "a recent criminal case, decided 5-4," and said it " 'was a real turning point' " in his relationship with the rest of the court." Ehrlichman did not elaborate on what the case was or how Burger thought it altered his relationship with the other justices.
"On other occasions, Nixon and Burger talked about Nixon's view of the death penalty, the rights of criminal defendants and similar law-and-order issues," Ehrlichman writes. However, the galley proofs contain no indication that issues other than busing were discussed in terms of specific pending cases.
In legal terminology, discussion of pending issues outside the confines of the judicial process and without the presence of other parties to a case is called ex parte communication. The American Bar Association's Code of Judicial Conduct says that, except as authorized by law, no judge should "initiate or consider ex parte or other communications concerning a pending or impending proceeding."
It bars communications not only between a judge and a party to a case but between a judge and any person not authorized to participate in the decision-making process.
The code of conduct also says judges should not "convey or permit others to convey the impression that they are in a special position to influence him."
Ehrlichman devotes considerable attention to the way Burger was chosen for the court after the retirement in 1969 of Chief Justice Earl Warren. Burger was then a judge on the Court of Appeals for the District of Columbia.
Burger, Ehrlichman writes, "looked like a judge, talked like a judge and, most important, wanted a seat on the Supreme Court so passionately that he would have agreed to almost anything to get it."
After Nixon's inauguration, Burger visited the president at the White House, Ehrlichman says, and "brought with him a copy of a speech he had given on crime, law and order and the administration of justice . . . . From then on, I received little notes from time to time signed 'W.E.B.' about the Supreme Court, law enforcement and the president's policies, along with excerpts from articles for me to read.
"Nixon told Attorney General Mitchell to talk to Burger at length, to make sure he would be Nixon's kind of chief justice: a strict law-and-order man, a politician who could and would produce results, a justice dedicated to undoing the excesses of the Warren Court.
"Burger convinced Mitchell and Nixon that he was all of that, and more," Ehrlichman writes. "He was even willing to create another vacancy when Nixon wanted one."
Ehrlichman said that the court appointments were second only to foreign policy as a Nixon interest, and that he was determined to "change the domestic situation through the creation of a long-lived strict constructionist Supreme Court, composed of young justices who would sit and rule in Nixon's own image."
Some of the communications from Burger to the White House reflected Burger's interest in vacancies, Ehrlichman said. Burger "kept us informed as to the illness and frailty of Justices Black and John Marshall Harlan," Ehrlichman writes. "At last, about 3 p.m. on Sept. 17, 1971, Burger telephoned me to say that a messenger was bringing the president a letter from Hugo Black," a letter that was to prove to be Black's resignation.
" 'This is it,' " Ehrlichman quotes Burger as saying, adding, "His voice conveyed excitement and triumph."