The closest political race in California could be a contest where there is only one candidate on the ballot.
This reluctant candidate is California Supreme Court Chief Justice Rose Elizabeth Bird, the top aide to Governor Edmund G. (Jerry) Brown Jr. before he appointed her to the high court. An unusual California law requires that Supreme Court justices can be confirmed at the first election after this appointment.
After an energetic campaign against her, Bird seems to be in serious political trouble. A Los Angeles Times poll this week found that an approval vote for Bird was favored only by 30 percent of the voters with 34 percent against and 27 percent undecided.
Bird did somewhat better in Mervin Field's California Poll announced yesterday, leading 47 to 39 percent. But Field found that 14 percent of voters [WORD ILLEGIBLE] against her.
"It's there to win," says Republican state Sen. H.I. (Bill) Richardson, who has delighted the major effort to unseat Bird. "It boils down to who turns out, and I expect a big turnout from conservative voters."
Richardson, who heads a group called The Campaign for Law and Order, has depicted Bird as an unqualified judical liberal whose court decisions have given aid and comfort to criminals. While Richardson lists 32 decisions which he says reflect this position, the committee has focused for the most part on one widely publicized southern California rape case.
In this 1975 case, the victim, identified only as Maria, was raped at knifepoint, cut twice, sodomized and otherwise abused to the point of vomiting and hysteria. A Los Angeles Superior Court jury found that "great bodily harm" had been committed, adding three years to the sentence of convicted rapist Daniel Candillo.
The Supreme Court reversed this finding on a 5-2 decision with Bird concurring.
"Personal repugnance . . . cannot be a legitimate basis for rewriting the statute as it was adopted by the Legislature." Byrd wrote. "It is precisely because emotions are so easily called into play in such situations that this court follows the legislative intent and not our own predilection or beliefs."
The entire Court majority agreed that the Legislature had not defined rape itself as "bodily harm" and the majority found that the knife cuts on the victim's neck were superficial. Since the court's decision, the Legislature has rewritten the law to tighten the definition of bodily harm and impose a mandatory prison sentence for rape.
But the decision has hurt Bird politically. For one thing, it cut into her basic support among women who otherwise might have regarded the campaign against her as simply an exercise in male chauvinism.
Gerry Bigelow, a lobbyist for the National Women's Political Caucus, which has endorsed Bird nonetheless called her opinion in the Caudillo case "outrageous" and "unbelievably insensitive." And the Los Angeles Times poll this week showed that Bird was doing only slightly better with women voters than she was with men.
Ironically, Bird is being criticized in the Caudillo case for taking the kind of "strict constructionist" position that conservatives say they favor in judicial decisions.But Richardson and other Bird foes say she has been more than willing to depart from the standards in other cases. The decision usually cited is one in which Bird and the court majority ruled that Superintendent of Public Instruction Wilson Rules should have his name placed on the ballot even thought he had failed to file reelection papers required by law.
"The strict constructionist argument has held only when it suits the convenience of the court," says Richardson.
Lawyers' groups and a wide range of political figures have rallied to Bird's defense. For the most part, they have tried to defend the importance of judicial independence rather than any particular court decision.
Typical of the defense was one given this week by Bert Z. Tigerman, president of the Beverly Hills Bar Association, who denounced the "irresponsible partisan attacks" on the court.
Bird herself has invoked the doctrine of judicial independence as her reason for openly campaigning for confirmation in her own behalf. While she has refused to give newspaper interviews, she has quietly visited the editorial boards of the state's major newspapers in a successful effort to win their backing.
Historically, every previous campaign against confirmation of a Supreme Court justice has failed. The last serious attempt was made by conservatives in the mid-1963s, when the California high court was pioneering in expanding rights of the accused and in upholding open housing legislation.