It is depressing that California's chief justice looks so fetching. Rose Bird has a new hairdo to please the public in November. Judges' decisions often are the ingredient that causes politics to ferment. The most vinegary vote of 1986 will be a decision about retaining Bird for a 12-year term.
Thirty-nine states have some form of voting on judges, but California's populist tradition is especially virulent. This year she and three other liberal justices face a fierce campaign to unseat them through a mandatory reconfirmation vote. California's system could be worse. Until 1934 it was worse because there were contested elections for judges. But in a state this size a plebiscite requires a seriously challenged judge to raise more -- perhaps much more -- than $1 million. That is unavoidably unseemly. And how can a judge campaign? Not by making promises about future cases. And professional ethics prohibit public dissection of previous decision-making. Critics can be specific; an embattled judge must be general.
Bird is an incorrigible liberal and hence must praise the idea of "the people" being "involved," and the more democracy the merrier. So she seems philosophical about the process that probably will culminate in a resounding defeat for her. Philosophic and fatalistic.
She says the judicial branch is an aristocratic and hierarchical branch grafted onto a democratic tree. It is an arena of close reasoning about technical matters that are hard for the public to comprehend. Furthermore, in our wired nation the public has a shrinking attention span. People are comfortable only with communication served up in brief visual bursts. So the public finds courts, where the written word reigns, increasingly alien.
All that may be somewhat true. But it does not explain the Bird controversy. Californians are hardly promiscuous about defeating justices. If Bird loses, she will be the first to lose. But in 1978 she got just 51.7 percent of the vote. Since then she has poured kerosene on the hot issue that energizes her enemies: capital punishment.
Since a constitutional death-penalty law was enacted in 1977, more than 200 death sentences have been imposed, but there's not been a single execution. Bird has voted to reverse the death sentence in every case that has come before her.
Critics charge that her personal abhorrence of the death penalty impels her to "discover" -- invent, really -- procedural errors in pretrial, trial and sentencing stages of every case. When she says, for example, that a death sentence is invalid if the jury did not include aliens as well as citizens, even her friends roll their eyes heavenward.
But her critics are wrong to call her cynical. Her problem is a destructive earnestness that is characteristic of overripe liberalism -- an irrational commitment to an ideal of social rationality. Her defenders are being facile when they celebrate her "independence." Extreme independence from the community's values becomes, in a judge, an injudicious willfulness.
Mickey Kaus, whose father is one of Bird's colleagues and who clerked for another judge on her court, identifies her philosophy as "Liberal Legalism." It fears above all else "arbitrary" government and would prevent it by purifying procedures -- "process, process and more process, in the form of hearings, lawyers and ever more refined evidentiary rules and more exacting burdens of proof."
Kaus believes that some of Bird's civil decisions are more disturbing than her decisions in criminal cases. She "claims heretofore unknown powers to discern and disapprove legislative 'irrationality,' She would have struck down Proposition 13 because that initiative rolled back property assessments only for people who bought their homes before a certain date. She said this date was (presumably any date would have been) "arbitrary," so the law, overwhelmingly passed by plebiscite, "must fall." Her roving commission to extirpate "arbitrariness" gives her judicial activism extraordinary sweep.
As liberalism became lazy and arrogant, and then weak and unpopular, it retreated from political arenas to courts. There it now is besieged -- and disarmed. Having won most of its recent political victories (on race, abortion, capital punishment) in courts, it cannot convincingly decry the "politicizing" of courts. But Bird does decry it. She believes she has not been political, only rational, and her sincerity gives her a kind of crazy bravery.
A judge on her court has said that the requirement that judges must face the electorate is like a crocodile in your bathtub: it is hard to ignore. Give Bird her due. She has been almost magnificent in her disregard of the beast that is going to devour her.