In the spring and summer of 1986, California Supreme Court Chief Justice Rose Bird and I played a peculiar game of phone tag. I was the newly hired director of an independent campaign on behalf of Bird and two associate justices (Joe Grodin and Cruz Reynoso) whose continued tenure was to be decided by California voters that November. Previously, judicial retention elections had drawn about as much interest as a race for municipal water boards, but this time was different. Bird, who‘d been appointed to the court by Governor Jerry Brown in 1977, was the subject of a massive campaign to remove her, spearheaded by Brown’s Republican successor, George Deukmejian, a passle of D.A.s from across the state, every agribusinessman in the San Joaquin Valley, and a couple of well-heeled L.A. lawyers: Dick Riordan and Bill Wardlaw.
The reason, at once real and ostensible, for all this opposition was Bird‘s position on the death penalty: She had voted to overturn every one of the nearly 60 death sentences to come before the court since her appointment. Grodin and Reynoso had voted to uphold a few of those death sentences. But Bird’s notoriety provided Deukmejian with an opening to practice wholesale slaughter on Democratic justices — and the opportunity to create a Republican-friendly court in time for the 1990 legislative and congressional reapportionment.
The embattled justices thus found themselves compelled to do something unheard of in California judicial history: campaign for office. Bird raised a great deal of money from various liberals and trial lawyers rather early on, but as election day crept steadily nearer, no Bird campaign was anywhere in evidence. Plainly, she loathed the whole idea — translating her judicial philosophy into the argot of campaigning was no easy matter, and converting herself into a campaigner of any kind was utterly impossible.
Hence the independent campaign I was charged with managing. Sometime that spring, various trial-law associations, unions, feminist organizations and other groups that appreciated the fact that California‘s high court had led the nation in worker, consumer and civil rights had come together and decided that if Bird was so uncertain as to how to campaign, why then a campaign would just have to be waged on her behalf. The Independent Citizens Committee To Keep Politics Out of the Court was born. And I started dialing for dollars.
Thus the phone tag. I would call Donor X — a union leader, a wealthy Westside liberal — to solicit funds. Soon thereafter, Bird would call the same people and tell them why they shouldn’t donate funds. She didn‘t want someone else making the case on her behalf, with a message she couldn’t control. Back and forth we‘d go, never talking directly, but both hectoring the same potential givers.
At the time, I was none too pleased with my candidate, who seemed chiefly bent on keeping any campaign — her own or ours — from getting off the ground. Later, I came to believe that she had already concluded it was a hopeless cause and that she wanted chiefly, if not only, to ensure that she went out with a modicum of dignity and that, institutionally, the judiciary not be seen as plunging into the political arena.
She certainly achieved the first of these goals; the second, I fear, was beyond her control. The Achilles’ heel of judicial independence in California, it turned out, was the same state constitution the court was charged with defending. By requiring appointed justices to stand for retention every 12 years, it had created the possibility that they would be challenged for the political impact of their opinions. Rose Bird had been a talented, scrupulous, conscientious jurist who had led the court to a number of notable progressive decisions. Politically, though, she was as inept as it was humanly possible for a public figure to be, with a political legacy about which I‘m sure she felt terrible. After the election, any sign of opposition to capital punishment in a prospective elected official or judge was considered proof positive that that person couldn’t be trusted in the job. Gray Davis, whose sole youthful indiscretion was to have had Bird preside at his wedding, has been repenting ever since — first, with verbal support for capital punishment, and now, since he‘s become governor, by not sparing from execution any Death Row inmate whose time is up.
After her all-but-invisible campaign, Rose Bird went on to an even more invisible post-court life. Retiring to her house in Palo Alto, she declined to practice law again and almost never appeared in public. Ten years ago, she did undertake a short lecture tour with, of all people, Robert Bork, the eccentric right-wing justice whose appointment to the U.S. Supreme Court had been defeated in the Senate after a very heated public campaign. I caught the act one night at a local college; the theme was that they both had been martyrs of politics.
Since court decisions have public-policy consequences, though, I could never figure out — the name of my 1986 campaign committee notwithstanding — how you could take politics out of any assessment of a justice. In a democracy, it’s no shame to be a martyr of politics as such; the shame is simply that good ideas and good people, like Rose Bird, often do not prevail.