In the summer of 1979, many Californias were caught up in an engrossing soap opera -- an extraordinary televised public investigation into allegations of misconduct by members of the California Supreme Court. As the cameras rolled, the seven justices revealed a court plagued by jealously, suspicion, vanity, envy, and personal and ideological rifts of unexpected depth.
The episode raised disturbing questions: Was Chief Justice Rose Bird, the first woman ever to head the court, being unfairly attacked by conservative members of the court? And could the court ever heal its wounds?
The California court's turmoil was echoed here in Washington last week by revelations of bitter conflict within the D. C. Court of Appeals over the reappointment of Chief Judge Theodore R. Newman Four conservative judges on the panel, which is in effect the state supreme court for the nation's captial, scathingly denounced Newman's behavior both on and off the bench in an attempt to block him from another term as chief.
And similar questions were raised: Was Newman, the first black chief judge, being treated unfairly? And would this court, supposedly a body of equals, ever be able to function smoothly again?
There seems to be no one good answer to the questions of sex, race and possible discrimination. Both the California justices who lambasted Bird and the D. C. judges who attacked Newman maintained that their motivations were purely objective.
Still, there are facts that can not be denied: Appelate courts all across the country are changing rapidly to include more women and minorities, who often are younger and have advanced through the ranks more quickly than their white male colleagues. In California, a strong-willed woman was placed in charge of the nation's largest court system. In Washington, a strong-willed black man was named to head the jurisdiction's highest court. And in both cases, trouble followed.
The chambers of such courts traditionally have had the flavor of exclusive men's clubs, with book-lined walls, fine old leather chairs and a cozy, almost fraternal atmosphere. Bird and Newman both come from outside this comfortable sphere, and both rose quiclky to top pecking order status over older jurists accustomed to traditional ways of doing things. Some feel those differences may be among the seeds of the controversy.
"They could well be factors," said Los Angeles attorney Seth Hufstedler, who as special counsel conducted the televised cross-examination of the California justices. "Wherever you have different kinds of people, differences are more likely to surface. I suspect that heightens it. It has just become more fashionable to speak out. The tradition of the courts was to be very careful that no disputes got out. A lot of the people on courts now do not subscribe to that view."
Hufstedler, the husband of U.S. Secretary of Education Shirley M. Hufstedler, won accolades for even-handed prosecution of the California charges, and can be considered something of an expert on warring courts.
In the California case, Bird's opponents were asking that she be slapped on the wrist, removed from the bench or something in between. They charged that she compromised the judicial process to save her political soul.
Their protest stemmed from allegations by at least one justice that a controversial decision weakening a popular "use-a-gun, go-to-prison" mandatory sentencing law was deliberately with held by one of Bird's allies on the court until after the November 1978, election.
Bird, appointed chief justice by Gov. Edmund G. (Jerry) Brown Jr., had to stand for confirmation by the voters in that election and faced organized conservative opposition. She was retained in office, but by the narrowest margin ever for a California justice.
Bird herself was among a number of justices who asked that parts of the California investigation be public. But the televised hearings were more than she or any other members of the court had bargained for, and during her testimony she said she regretted that much of the mystique of the court -- she called it "delicate china" -- had been shattered.
One of Bird's conservative antagonists on the court, Justice Stanley Mosk, eventually petitioned successfully to have the cameras turned off and the public and reporters barred from the proceedings. The state Commission on Judicial Performance issued a final report indicating that none of the charges against Bird or any other justice had been proved.
Beyond the serious charge of manipulating the timing of a controversial case for political reasons, much of what surfaced during the California hearings revealed surprisingly petty disputes. Bird had the court's hardwood conference table moved and "almost started a riot," she testified. Some justices thought her schoolmarmish; others found her strident.
In the case of Ted Newman, there are likewise serious charges and petty ones. Judge Frank Q. Nebeker, his principal opponent, charged Newman with "systematic injudiciousness" and accused him of sabotaging "independence and free exchange of views." The judges said he monopolizes valuable time during oral agruments, thus impairing the court's work.
Some of the other charges seem more relevant to style than to substance. Judge Stanley S. Harris objected that when he refused Newman's request to delay a complex case until the chief judge returned from out of town, Newman replied, "If it's war you want, baby, it's war you'll get." Newman's reported choice of words may have reflected high-handedness, but still seems on the same order of importance as which way a conference table faces.
Both the California and D. C. courts have split along ideological lines.
Bird has been allied with the remnants of a liberal majority on the California court, which for years has resisted the Warren Burger-led U. S. Supreme Court on such issues as capital punishment and the rights of criminal defendants. But recently, a conservative faction led by Justice William Clark, a Ronald Reagan appointee and Bird's most vocal critic, has begun to prevail. Last month, for example, the court -- still bitterly divided -- upheld the state's death penalty.
On the Washington court, the acid test has been the powers of the home rule government. Newman has seen the court's role as one of not second guessing the mayor, City Council or other agencies, while his four main accusers have held consistently to more conservative interpretations of the authority that the home rule charter giv es to City Hall.
In Washington, there has been considerable discussion of collegiality before the decision on Newman's reappointment. But what about afterwards, in the wake of such acrimonious and public dissent?
The California experience would suggest that the healing process will be a slow one. "My guess is no, the [California] wounds haven't healed," Hufstedler said. "At the hearings, they all said they recognized the problems and would do their best. But sources I know, people close to the court, tell me those problems are not solved."
Hufstedler told of one recent episode, reported in California newspapers. It seems that a court baliff decided to retire, and a number of justices thought the veteran employe should be given a last-minute raise so he could collect larger retirement benefits. But Bird and eventually some other justices objected, arguing that to give the raise would be cheating the public. Another bitter intramural fight ensued.
"The court," Hufstedler sighed, "split right down the middle."