An article in yesterday's Style section incorrectly reported the frequency with which California Supreme Court justices must be reconfirmed. The state constitution mandates a reconfirmation vote every 12 years.
The chief justice of the California Supreme Court is asked to imagine, momentarily, that she is gazing across her desk at the mother of a murdered child.
The mother has come because she knows, with scarcely endurable precision, what the murderer did. She knows that the jury knows what the murderer did, and she knows that the prosecutor and defense attorneys all know what the murderer did, and she knows as of today that the murderer will not receive the death penalty because the California Supreme Court, Chief Justice Rose Elizabeth Bird writing for the majority, has found an error in the conduct of his trial.
The Chief has never, in her 8 1/2 years on the court, voted to affirm a death penalty verdict. This fall, if there is any accuracy to the most recent poll reports, she stands a good chance of becoming both the first judge ever voted out of the California Supreme Court and one of the most visible judges in the country to succumb to political attack. If that happens, no single issue will have ushered her more firmly out of office than the battle over imposition of capital punishment.
So the Chief is asked, in the judicial chambers, the invented grieving mother before her: Imagine this.
"You've pinpointed the very difficult process that the court has to deal with," says Chief Justice Bird. "If the trial has an error in it, our history has told us that what you do is, you don't release the person. You reverse the case and it goes back for a proper trial, so that when you place that person behind bars, or when you take that person's life, you do it with a clear conscience."
Does anyone imagine, the Chief suggests, that judges cannot also feel repulsed?
"We have to read those records," she says. "You see some poor, young child, killed and mutilated -- and innocent. That's a hard thing to see."
Her voice is softer now than it has been, and slower. "And you feel that, as a judge. And you have to, when you see it in the cold record. You know, you have to read these things. And you can't turn your face away from them. You have to look at them. And I think it hurts all of us up here to have people truly feel that we don't feel for them, and for that. It's an enormously difficult role to be a judge. It really is difficult."
The State of California, which for 40 years has boasted one of the most influential high courts in the nation, is at political war over Rose Bird. Public speakers denounce her; news conferences are called to defend her; judges and legal scholars watch, and argue, from 3,000 miles away. A Republican politician is photographed grinning over a stuffed turkey labeled "Rosie." Democratic candidates for public office duck and dodge when asked to take a stand on the Chief, or the court she heads, or the statewide debate that has turned by now into one of the longest, bitterest, most explicitly political campaigns ever aimed at an American judge.
If it succeeds, and Rose Bird loses her reconfirmation vote this November:
The California right will have helped undermine the American judicial system by removing from office an experienced and influential jurist whose opinions, on subjects ranging from criminal law to consumer protection, were simply too liberal for them.
The state will be rid of an arrogant anti-death-penalty idealogue who has twisted the law to accommodate her own political agenda -- and whose nearly unswerving liberal bias has turned the California Supreme Court, in the word particularly favored by certain district attorneys, into a "laughingstock" around the nation.
The court's first woman Chief, after spending her entire sw,-2 sk,2 ld,10 tenure fighting powerful California men who never forgave her for being female and young and brought in from outside, will finally have lost her war.
"If I cut my hair, it's a front-page story," Bird says, with only faint exaggeration; the papers last year carried lavishly illustrated accounts of the Chief's weight loss, updated wardrobe and shortened blond curls. "If I pass the first historic change in the procedures of this court since its inception . . . You can't even get a footnote in the obit page."
She is smiling, but not very much. "I've often thought maybe what I would do is, next time I go to my hairdresser, I'll call a news conference," she says. "And while I'm there, I'll talk about state funding. And maybe I can get some discussion to talk about something of substance."
The Chief will not be alone on the state ballot this November, even among judges. Six of the seven Supreme Court justices are due for the periodic reconfirmation vote mandated by the state constitution to determine whether justices should be permitted to continue in office. They will run as part of the general election, as they are required to do every eight years, and they will run unopposed; California, like some of the many states requiring voter approval of their high court justices, does not allow contested races for Supreme Court seats.
It is possible, if the campaigns proceed as they have for nearly a full year now, that a majority of the justices will fall with Bird, giving Republican Gov. George Deukmejian, if he is reelected, a free hand to remake the court politically. Leaders of the most effective anti-Bird campaigns have also targeted three other justices as excessively liberal, and it is assumed that angry enough voters might reject what they perceive as the whole pack.
But the focus of the entire effort is the chief justice. It is the Chief whose name is invoked with every hostile public reference to the "Bird Court." And the Chief, who has not in the past made a habit of discussing her personal life, says threats of violence have now compelled her to move her elderly mother from the home they had lived in together. "I have to be guarded all the time, because I get so many death threats," she says. "Telephone, written . . . They want me to learn how to use Mace . . . And whenever I go to a speaking engagement, or have a public event -- even my fundraiser -- we got calls in, right before the fundraiser, that something would happen to me, and we had to find a special route in and out of the hotel. That's a whole different way of living your life, and thinking about the process of decision-making."
Bird is wearing purple, both in her dress and the bright scarf gathered at her shoulder with a small gold brooch. She is a tall woman, broad-shouldered and made a little more imposing by the blond waves massed in such celebrated array around her face, and her initial greeting is relaxed and mildly disarming. She offers coffee. She observes, correctly, that the reporter's hair has changed since they were briefly introduced some months ago. Then she chuckles, alert with sudden mischief: "You didn't do it for a political purpose?"
The Chief drives a 1984 Toyota to work, takes her exercise at the YMCA and sends birthday flowers to law clerks who stopped working with her years ago. She is 49 and has never married, but says she would like to someday. She keeps a San Francisco office filled with legal journals and precariously stacked hard-cover books and exuberant, treelike potted plants. She has been known in her speeches to invoke Alexis de Tocqueville, Elvis Costello, William Shakespeare, George Orwell, Ingmar Bergman and Bruce Springsteen, whom she described in one speech as a "social commentator," and at her fund-raising banquet last fall she thanked Warren Beatty for his keynote address by smiling in the direction of Beatty's table and observing into the microphone, with perfect decorum, "How nice Mother Nature was, to put such a fine mind in such a fine body."
She says she does her own grocery shopping, and picks up her Saturday morning dry cleaning by herself. "So that you know what the price of butter is," Bird says. "And you know what it's like to stand in line. And you know what it's like to drive on the freeways, and have as close to a normal life as you possibly can . . . because when you are introduced, or you meet people, they don't meet Rose Bird. They meet Chief Justice Rose Bird. And I can remember the first law students that I interviewed for a position as a law clerk -- and they were shaking, sitting there physically shaking. And it was just amazing to me. I couldn't imagine anybody being afraid to come and sit and talk to me."
The Chief still looks convincingly nonplused by this discovery. Steve Buehl, her executive assistant, sits quietly off to one side, making occasional notes on a legal pad and monitoring the tape recorder he has turned on, evidently to back up the tape being made by the visitor. It is somewhat new business in these offices, the public conversation with inquiring outsiders; until late last year, Bird was famous among local reporters for declining nearly all interview requests, particularly those from reporters who regularly covered the court.
She took a good deal of criticism for that, and there is more than one local reporter who would find no particular comedy in Bird's small joke about news conferences at her hairdresser's. This is a woman, after all, who refused substantive interviews for years and then appeared in a lacy white blouse on the cover of Vegetarian Times; the subhead under her right earring read, "California's Top Judge Gives Vegetarian Diet a Life Sentence."
The interview was meant to let readers and cancer patients know that Bird believed dropping meat and fish from her diet had helped her overcome recurring breast cancer, which forced her to undergo a mastectomy in 1976, but wider subjects were raised as well. "My own personal feeling though, is that being a vegetarian makes one much more pacific as a person," Bird told her interviewer. "I'm not sure whether that's psychological or whether in fact there is something physiological involved. But through getting in touch with your inner sea of calm, you also get in touch with nature and with the beauty of all aspects of the planet."
That quote was reprinted all over the state, instantly and with only thinly disguised glee, and it was as though some massive part of the Rose Bird problem had distilled itself into one column inch of magazine type. It is received wisdom in California legal circles that another kind of chief would simply not do some of what Rose Bird has done: would not let herself get caught talking in print about inner seas of calm; would not make intemperate public reference to conservatives seeking "a whole court of little Eddie Meeses"; would not prepare for public distribution a set of "updated photographs," as the Chief prefers to call them, that show her either in translucent white blouse or in loose-knit black crochet, leaning in at the sort of angle usually meant to convey a kind of intimate warmth, and smiling. "Chemistry" is the word another justice has used, trying to articulate the Rose Bird problem: Beyond raw politics or the visceral impact of the death penalty, this campaign has turned into a morass made nearly impenetrable by the complications of personality, California history and arguments about the way women conduct themselves -- or ought to conduct themselves -- in positions of considerable power.
Of all the odd and defiant gestures of Edmund G. (Jerry) Brown Jr., the California governor so celebrated for his public assaults on political tradition, none upended the legal community here quite like the appointment of Rose Elizabeth Bird. In 1977 Brown had two Supreme Court vacancies to fill, one of them left by the outgoing chief, and it came as no surprise that he was strongly considering black and female candidates for the seats; Brown had reserved particular criticism for what he saw as a judiciary composed of overpaid white men, and he had already appointed unprecedented numbers of women and minorities to judgeships around the state. Women's names began to circulate, as likely prospects with appropriately weighty credentials: the 9th Circuit Court of Appeals Judge Shirley Hufstedler, the University of Southern California Law School Dean Dorothy Nelson.
The woman Brown chose was his own secretary of agriculture, and it was with some flamboyance that he made his simultaneous announcements -- Rose Bird, the Supreme Court's first woman, and former Superior Court Judge Wiley Manuel, the court's first black. And the position of Chief was to be assumed by the woman -- a judicially inexperienced woman, far younger than some of the men she was now to supervise, with a background and reputation that made even many of her supporters doubt the wisdom of elevating her to Chief.
"It was very Brown-like," says one now-retired California judge. "Jerry was thumbing his nose at the establishment, and it was symbolically exactly that to appoint Rose."
She had grown up in Arizona and New York, and when she talked about her past it was usually in the context of her strong-willed mother who raised three children alone. "My mother married an older man, and as a result my father died when we were very young," Bird says. "And I think she probably more than anyone else influenced me in understanding that you had to rely on yourself -- that you couldn't rely on a husband to financially see you through life."
She wanted to be a foreign correspondent -- "When my classmates would have crushes on movie stars, I would have them on news commentators," she says -- and majored in English at Long Island University after the family moved east. A year's fellowship in the California state legislature diverted Bird toward the law, and she graduated in 1965 from the University of California at Berkeley's Boalt Hall law school. She took a position with a northern California county public defender's office, deliberately defying the common assumption that women were emotionally unsuited for trying cases, and supplemented her defense work by teaching a Stanford Law School criminal defense class that is remembered even now for its challenge and rigorous standards.
She had not deliberately planned it this way, she says, but all around her, at nearly every stop, were men forced for the first time to adjust to the presence of a woman in their midst. "I suppose, looking back on someone's life -- I was the first woman at Boalt to win the honors prize. I was the first woman to clerk in the Supreme Court of Nevada, was the first woman public defender hired in California's Santa Clara County. I was one of the first women to teach at Stanford Law School. I was the first woman on the cabinet . . . But it was never a conscious thing."
In the mid-1970s, after campaigning with her help and listening occasionally to her political counsel, Jerry Brown brought Rose Bird into his administration to run the 16,000-person Agriculture and Services Agency. "We worked on an awful lot of interesting issues -- redlining, and the Veterans Administration and their loans," Bird says. "Toxic waste. We did the first environmental impact statewide on the use of pesticides in the state. And of course in the process I made an awful lot of powerful interests" -- Bird laughs lightly -- "a little unhappy."
She was viewed, in other words, as a Jerry Brown Liberal: sympathetic to the criminal defendant, the aggrieved consumer, the unionizing farm worker. She had a reputation for paying fierce attention to her personal principles -- "If she believed in something, that was it," says retired U.S. Court of Appeals judge Sidney Feinberg. And it was said around Sacramento, as it is still said today around the offices of the Supreme Court, that Bird was the kind of administrator who demanded intense loyalty and threatened retribution to those she thought had betrayed her. When a California bishop who had headed her first agricultural labor relations board wrote what became a much-publicized letter opposing her appointment as chief justice, he described her as "vindictive" three times in the same paragraph.
"She has a personal temperament which enables her to lash out at people who do not agree with her," the bishop wrote. "Her normal approach is to become vindictive, then to transfer her feelings to a long phase of noncommunication."
So the new Chief was not only a woman -- she was, it might be argued, a woman at whom any number of we-don't-want-them-in-power stereotypes might be flung. She was uncompromising, unmarried, "vindictive"; a woman without judicial experience or the kind of academic credentials won by years of artful politics among male law school faculties. She was close to the famously eccentric governor. She was insistent about her privacy. And when her legal opinions began appearing on the public record, some of the most controversial of them finding in favor of criminal defendants, the outcry they generated convinced some Bird supporters that the Chief was being judged by standards most men would never have to meet.
"She's not even granted the dignity of her office," says California Women Lawyers President Pam Jester, observing that Bird is usually referred to in conversation by her name, not her title. "The notion that it's alarming that the chief justice had no prior judicial experience -- well, that didn't come up when former California Supreme Court Justice Frank Newman was appointed . . . And there's also the nagging thought, in the back of some women's minds, the notion that women aren't tough enough to have leadership positions, the notion that they'll be soft on crime because they're not tough."
The Chief herself does not use words like sexist, as a rule, although she says she finds it intriguing that after nearly nine years on the bench -- she is now second in seniority on the Supreme Court -- her opponents' campaign literature still calls her judicially inexperienced. "I've always said that when you're the first of your sex or your race in a position, three things apply to you," she says. "One -- you're placed under a microscope. Two -- you're allowed no margin for error. And three -- the assumption is always made that you achieved your position on something other than merit."
What Rose Bird has been accused of, in the most insistent and angry clamor ever directed at a state high jurist, is bias on the bench. Like the other justices also imperiled by the current campaign, she is described by her critics as so firmly set against both prosecutors and business interests that her opinions, as Boalt Hall law professor Phillip Johnson puts it, show "a record of partisanship in judicial decision-making which is simply stunning . . . the plaintiff always wins, the insurance company always loses, the death penalty is always reversed . . . people's credulity is strained past the breaking point."
It is a liberal court, by the most conventional analyses, carrying on what Bird's defenders argue is a history of liberalism that far predates her tenure. Since 1977 the court has ruled, with the Chief joining in, that apartment house owners may not bar families with children; and that a victim of a cancer-linked prescription drug could sue all manufacturers of the drug even when she could not specify which brand she took. The court refused to bar state-funded abortions for women on welfare, citing the women's constitutional right to privacy. It supported tenants in certain closely watched landlord-tenant disputes. It found that public employes have a right to strike, a right that Rose Bird's concurring opinion said was partly founded in the constitutional prohibition against involuntary servitude.
And in the great majority of death penalty cases that have come before the court -- California state law requires automatic state Supreme Court review of all death penalty verdicts -- the justices have voted to overturn either the verdict or both the verdict and conviction. The court's record to date is 58 cases, three upheld. Of all seven justices, only the Chief has so far voted to overturn every death penalty verdict brought before the court.
The bare figures are unusual, as many states go, but the practical effect is not; the Massachusetts Supreme Court, for example, recently overturned that state's entire death penalty statute. Since the U.S. Supreme Court allowed the use of capital punishment 10 years ago, only the southern states have proceeded with any substantial number of executions. "North of the Mason-Dixon line, there have been executions only in Nevada, Indiana, and Utah -- period," says Boalt Hall law professor Franklin Zimring, coauthor of a just-completed book about capital punishment in the United States. Compared with other states, California's judicial interference with executions has been "more prominent than some," Zimring says, "and less prominent than others."
But capital punishment is such a visceral issue, lending itself so readily to raw descriptions of the unimaginably awful things these defendants have done, that the broad attack on Bird has found its loudest public rallying cry in the now-famous 58-0 record. "She's much more a defense attorney up there than a judge," says Orange County Deputy District Attorney Anthony Rackauckas, one of the many California prosecutors who have publicly condemned both Bird and the court she heads. "All the people in the trial are bending over backwards not just to give the defendant a fair trial, but to give him a perfect trial -- because if they make a mistake, it will cause a reversal."
Bird and her supporters have countered that there are legitimate reasons for every vote to reverse -- that the death penalty initiative was so badly written, so scattered with inconsistencies and passages requiring clarification, that many reversals are essentially constitutional refinements. "When the court completes that process, you're going to have a death penalty statute that is not going to be open to question," she says. "And when that happens you will have massive executions, because you will have refined it, so that the proper instruction that should have been given down below will have been given."
Although there is considerable argument over the quality of Bird's opinions -- supporters call them well reasoned; detractors call them strained and illogical in their effort to reach a politically predetermined outcome -- no consensus finds a particular Bird opinion grossly misreading the law. And every attorney understands that the Chief does not render verdicts on her own. In some of the controversial opinions, she is joined by conservative Republican-appointed justices; the justices perceived as her allies dissent with her on others.
What is under attack is rather the body of her opinions, their alleged political slant, and their strong approval of what is sometimes called liberal judicial activism -- the idea that courts can proceed with what critics view as a liberal agenda applied to controversial new social terrain. As the federal courts have become more conservative, state high courts have in recent years taken on more and more of this role, expanding individual protections in areas like defendants' rights and First Amendment disputes.
That shift has given a particular urgency to the questions raised in this campaign -- questions that have surfaced in other judicial elections, but never with such drama. "The vote in the nation's largest state," law professor Johnson wrote in a study published last year, "on its liberal court -- and especially on its Chief Justice -- will be widely interpreted as the next thing to a national referendum on the legitimacy of liberal judicial activism."
What does this mean for American courts? Is this a useful check on judicial bias and arrogance -- a logical and entirely legal way for voters to remove from office a judge whose opinions, whether liberal or conservative, seem to them politically misguided and wrong?
Or is mounting and approving a campaign like this a threat to the independence of the American judiciary -- a large step, as Bird has said, toward "a system where judges put their moistened fingers to the wind, decide what is perceived to be the prevailing view, and rule accordingly"?
"It's incredibly dangerous when you sweep justices out of office because you don't like their decisions," says San Francisco Bar Association Director Drucilla Ramey, who believes, like many of Bird's supporters, that only flagrant judicial misconduct should impel voters to remove a judge from office. "I really think it would be just as important an issue if they were trying to get rid of a right-winger, or a more conservative judge. I really do feel it destabilizes the judiciary."
" 'Judicial independence' " can easily become a license for the abuse of power," Johnson counters. "The lesson that's going to be drawn, I think, by future judges -- assuming one or more of these judges is defeated -- is that there are limits in how far you can go in outraging the public. And I think they ought to be concerned about that . . . You've got to thumb your nose in a very outrageous manner over a long period before you get into the situation that Rose Bird is in right now."
It is possible to study the California court dispute in considerable detail; the arguments over the death penalty opinions alone are laid out both in a 78-page prosecutors' critique and in a 205-page rebuttal written by the Committee to Conserve the Courts, a Los Angeles-based political group whose printed logo incorporates a single long-stemmed rose. Both are laboriously prepared documents, arguing such matters as Witherspoon's applicability to the juror exclusion in People v. Velasquez, and no one, excluding those with a consuming interest in the matter and a fair background in legal research, will read them.
There is not much illusion about this. Voters, as a rule, do not wish to be overwhelmed by argument over legal detail. And judges are traditionally not supposed to talk about decisions they have already rendered or expect to render in the future. Indeed, although it seems understood that a judge must not promise voters that he will always rule a certain way, there is no clear mandate as to precisely how a judge should campaign; there are judges who have remained silent, and judicial candidates like the California Superior Court judge whose campaign leaflets declared, "Prison Commitment Rate Is More Than Twice the State Average."
For many months now, Rose Bird has made it plain that she would have preferred silence -- that she believes political quarrels must not be allowed to sully the judicial process. "I think part of the problem is that we're in uncharted waters, and no one really knows how this is supposed to proceed," she says. "We feel very uncomfortable, because we're not used to even being individuals out there, appealing to the public. We wear robes. We have depersonalized the role that we have."
The irony, of course, is that this campaign has become so thoroughly personalized, so richly fueled by what seem to be voter perceptions about who Rose Bird is and what she symbolizes. There have been weeks recently when nearly everything Bird said publicly seemed to work against her, even when she was avoiding the issues of the campaign; an insurance defense attorney, who intends to vote against Bird, contemptuously describes listening to a Bird speech in which the chief justice "goes off into a history of the Magna Carta." Indeed, Bird's own course so far has been something of a mystery even to her supporters, who have a tendency to go off the record in interviews and then begin shaking their heads or firing imaginary shotguns into their own feet. She has launched no campaign visible enough or explicitly political enough to counter the attacks against her, and many of those who have offered to help have been rebuffed by a woman evidently determined once again to proceed in precisely her own way.
"She cannot come to grips with the fact," says one frustrated Bird supporter, "that this is a political campaign -- the most vicious, and longest, in the history of the State of California."
Bird is asked about this, and smiles faintly, and says she believes no political consultant has a corner on winning an election still seven months away. She says trial attorneys do not announce their strategy plans to the opposition, and that she was a good trial attorney. "You have to do it carefully, and you have to do it in a way that makes you feel comfortable," Bird says.
She has no particular plans, she says, for redirecting her work life if she loses her seat. "I don't make plans ahead of time," Bird says. There was a time, in the months after her first cancer recurrence in 1978, when she found herself confronting her own mortality, she says -- and some part of her was reshaped by the presence of death.
"When you face death, you learn about life," Bird says. "Because you question why you're here, and what this is all about. And in the process of questioning, I think, you learn to focus on what's important -- and also to focus on the moment, rather than on something way off in the distance. You don't do things today 'because tomorrow it will get me there.' You do it because it's important in and of itself to do it, and to do it well."
She is speaking slowly, thoughtfully, the afternoon light slanting in across the single pink rose propped in its small vase among the papers on her desk. "So I don't worry much about November 1986," Bird says. "I enjoy each day as it comes. And I'm grateful that I've been given it."