Retired chief justice Warren E. Burger has declined to attend a White House ceremony today at which he and senior federal appeals court Judge Irving R. Kaufman were to be awarded the Presidential Medal of Freedom, the nation's highest civilian honor, sources said.
"He's out of town," Supreme Court press officer Toni House said of Burger. House said she did not know where Burger is.
A White House official said Burger will be honored in a separate ceremony "in the next month or two."
Sources said Burger had originally planned to attend the ceremony but that he informed White House officials that he would be out of town after a Washington Post report about the award to Kaufman. The Post reported Sept. 19 that Attorney General Edwin Meese III and several White House officials had arranged for Kaufman to receive the award after he agreed to retire from active service.
A White House official said Burger informed the White House Sept. 21, the following Monday, that he could not make today's ceremony.
One source described Kaufman's retirement and the Medal of Freedom as an "explicit" trade. Meese denied through a spokesman that any trade was made. In a telephone interview yesterday, Kaufman also denied that there was any trade.
Burger, who testified before the Senate Judiciary Committee last month on behalf of Supreme Court nominee Robert H. Bork, was concerned that it would appear he was being given the medal in return for his vigorous support of Bork, sources said.
In fact, Burger's backing of Bork -- first expressed at the American Bar Association convention in August -- occurred more than a month before the White House informed him that he would receive the award.
After a protracted internal debate about the propriety of giving the award to Kaufman, officials searched for another deserving recipient to be awarded the medal along with Kaufman at a special ceremony, White House sources said. Ten individuals had received the award in June.
The White House originally considered awarding the medal to retired justice Lewis F. Powell Jr. but decided it would be inappropriate to give it to Powell while Bork's nomination to fill Powell's seat is pending, the sources said.
Kaufman, a judge on the 2nd U.S. Circuit Court of Appeals in New York, announced in June his plan to take senior status, giving President Reagan the chance to make his eighth appointment on the closely divided, 13-member court. Reagan last month nominated New York lawyer Stuart Summit, a former law partner of Deputy Attorney General Arnold I. Burns, to fill the vacancy on the influential court.
Kaufman, 77, who as a trial court judge in 1951 ordered the execution of convicted Soviet spies Julius and Ethel Rosenberg, is known for liberal rulings on press cases and other civil liberties issues.
In announcing the award to Kaufman, Reagan praised "his exemplary service to our country as a federal judge in New York, his works as chairman of the President's Commission on Organized Crime, and his multifaceted efforts to promote an understanding of the law and our legal tradition."