So I have already cast my ballot and in case there was any doubt, I voted for Jerry Brown (or "Moonbeam" as he is affectionately known by some) for governor. He wasn't my first choice for a candidate this year but he wound up being the only candidate to run. We were left with Meg Whitman. Make no mistake about it, Whitman, if elected, would be an absolute disaster as governor and would be a disaster for California. I think Brown will be a good governor and I am glad that I voted for him.
Brown has been attacked during this campaign for many things by Meg Whitman. One line of attack is the appointment of Rose Bird, an attack that she has brought up in debates. Because people are largely unfamiliar with the story of Rose Bird, I thought I should write a diary explaining the saga and I thought I should offer a defense of Rose Bird as well and why, despite the criticism of Rose Bird, I still proudly cast my ballot for Jerry Brown.
Some of you may be wondering, who is Rose Bird? I think many people watching the California Gubernatorial debate probably asked the same question. Who is Rose Bird? What did she do? And why is Meg Whitman talking about her? Is she some female version of Willie Horton? Perhaps some Bernardine Dorhn type accidently released from prison under Brown? Well not exactly (but close to it depending on who you ask). Rose Bird was the Chief Justice of the California Supreme Court who was first appointed to the Court in 1977 by Jerry Brown. Bird was the first and to date only (until Tani Cantil-Saukuye is approved by the electorate) female chief of the Court. Now forgotten and unknown to most, she was once a lightning rod for controversy, a symbol of "judicial activism." She was extremely liberal and often remembered as much for her opinions as her departure, she was unceremoniously voted off the bench by the California electorate in 1986.
When then Chief Justice Donald Wright (a Ronald Reagan appointee) decided to retire in 1977, it was widely expected that Brown would appoint associate Justice Stanley Mosk to the position of Chief. Mosk was a brilliant liberal (the William Brennan of the California Supreme Court) who had been appointed by Brown's father in the 1960's after serving as Attorney General and a lower court judge before that. Mosk wanted the position too. Unfortunately for Mosk, it was not meant to be. Jerry Brown soon announced that the vacancy would go to Rose Bird. The immediate reaction to this appointment was "Rose Who?"
Bird was the State Agricultural Secretary (her most notable action was to ban the use of the short handed hoe much to the ire of agricultural growers) under Brown but was largely an obscure figure completely unknown to the courts and legal profession. She had never been a judge, had served only briefly as an entry level public defender, and had only briefly served as an adjunct law professor at Stanford. She was no star litigator either. In fact, she and Brown first became acquainted during his 1974 gubernatorial campaign where she volunteered and became his chauffer. In short, she was no legal standout and hardly on anyone's shortlist for one of the most powerful judicial positions in the United States. This led to some contentious hearings from the State Judicial Commission where she almost failed confirmation needing Republican Attorney General Evelle Younger to change his vote at the last minute. But notwithstanding the controversy, in 1977, at the age of just 40, Bird now found herself as the Chief Justice of the California Supreme Court. She was controversial from Day 1.
Brown and Bird both reportedly thought that the court system had become too much of an old boy's club and was becoming distant to the ordinary concerns of people. She immediately moved to make changes including selling the Court's official limosuine, setting the stage for the computerization of court records, and changing the rules to allow Superior Court judges to sit on the Court and hear cases by special designation, a major honor for most judges. Previously, this honor of hearing cases by special designation was reserved to California Court of Appeals judges. But with these changes, came problems.
Shortly after being sworn in, Stanley Mosk, still bitter over not being appointed Chief Justice told her "I certainly cannot blame you for being here, but I blame Jerry Brown for putting you here." Mosk was critical of her administrative abilities, in later years reffering to her as a "disaster" when it came to administering the court system, one of the main jobs of the Chief Justice. As soon as Bird came to office, the California Supreme Court faced a major scandal when associate Justice Marshall McComb was forced off the Court because of senile dementia. At one point, a Superior Court judge nearly jailed him for contempt of court because he failed to show up for his depositions. His saga ended two months after Bird arrived when a panel of 7 Appeals Court judges ordered him retired. It was about this time that the chief administrator of the Court resigned just weeks after she became Chief Justice, reportedly because he and Bird did not get along well.
Bird narrowly squeaked by with 52% of the vote in her 1978 retention vote. But then, Bird faced a major scandal. There was an accusation that the Court had purposely delayed releasing opinions in order to help Bird win a 1978 retention vote. Soon thereafter, without consulting any of her colleagues, Bird called for an investigation of the Court. The investigation fell through on constitutional grounds and dissolved without resolution. However, the entire Court's reputation was tarnished as it was made to look dysfunctional during the proceedings. Bird's relationships with her fellow Justices was also strained. Reportedly, she kept her door closed and locked at all times and required fellow Justices to make appointments in order to see her (which alienated even her liberal colleagues). She would throughout her time on the Court often bring along a note taker to transcribe conversations between her and her fellow Justices which alienated her fellow Justices. At one point, relations with fellow Justice William Clark were so bad that she would not talk to him or even his clerks.
When it came to her jurisprudence, other problems existed. Throughout the 1980's, there was a constant back and forth between the California Supreme Court and the United States Supreme Court because there was constant confusion over whether California had issued decisions on the U.S. Constitution or the California Constitution. This resulted in an embarassing constant back and forth between the two courts. Additionally, rather than attempting to unite the Court, Bird charted her own course and would often write separate opinions, sometimes writing concurring opinions where she had written the main legal opinion.
But these weren't the reasons that ultimately led to her downfall. In fact, I doubt that many people cared or even knew about the court drama. Bird was a solid liberal on the Court and authored many decisions that favored plaintiffs and consumer rights advocates over big business. While Californians may have agreed with her decisions in favor of consumer rights, big business didn't and they were resentful, ready to get her off the Court. Where Bird's liberalism infuriated Californians was her jurisprudence on the rights of criminal defendants, especially the death penalty. In all 64 death penalty cases that came before the Court, she voted to vacate the death penalty in every single one of them. This was often criticized as overtly political and in defiance of what the voters and legislature of California wanted.
Why did this matter so much? California went through some incredibly violent periods during the 1970's and 1980's where crime soared and California witnessed an unbelievable number of horrifying crimes. Starting in 1969 with the Tate-LaBianca murders committed by Charles Manson and his family, California was repeated shocked by ever increasing horrifying crimes. There were a number of brutal mass murders (the 1981 Wonderland Avenue Massacre occurred just a few blocks down the street from where Jerry Brown lived). There was a huge increase in the number of infamous serial killers. And if that wasn't bad enough, California cities, especially LA, witnessed huge increases in gang warfare and bloody wars over the cocaine trade. Many streets and neighborhoods in LA became near warzones. The response to the crime and horror was a desire by Californians to give the death penalty. Rose Bird continued to take this away and she earned the ire of voters.
In 1986, Bird was up for a retention vote. Big business interests across the state teamed up to launch a campaign against her, focusing mainly on her opposition to the death penalty. In November of 1986, Rose Bird was unceremoniously voted out of office with a full 67% of the vote. On election night, Rose Bird conceded by noting that "I have tried my best" and that the California Supreme Court was "a house of Justice, not a house of Justice." In addition to Bird, two other liberal Justices, Joseph Grodin and Cruz Reynoso, were also voted out of office (though by smaller margins, 60%-40% against Reynoso and 57%-43% against Grodin). Ironically, Stanley Mosk was also up for retention and despite his liberalism, was retained with well over 70% of the vote. Republican Governor George Deukmejian would move to appoint Malcolm Lucas to replace Bird. The contrast could not have been greater. Where Bird was an unabashed liberal, a single, unmarried woman, from a working class background, Lucas was a solid conservative WASP from southern California Republican nobility. He would push the Court far to the right during his time.
After her defeat, Bird would fade off into obscurity, becoming a recluse of sorts in her later years. Unlike her rejected colleagues Reynoso and Grodin, who received job offers from big law firms and law schools, Bird remained unemployed. She spent time taking care of her ailing mother and sometimes would volunteer for grassroots political organizations (though usually she would be incognito and cease volunteering after people figured out who she was). She occassionally would be hired to do television and radio shows and would be billed as "the most controversial woman in California" but those shows failed mainly because she was too soft spoken and articulate. People were expecting to tune in to hear some Stalinist left wing maniac screaming over the airwaves and looking to fight, instead they found someone who was articulate and intelligent and not unreasonable. They tuned out. She faced a similar problem that the late Daryl Gates faced as well (who was also soft spoken and articulate instead of a raging Glenn Beck style maniac that everyone wanted). In 1999, Bird died of breast cancer. She had actually been diagnosed in 1976 and initially had been successful in battling it off but ultimately succumbed in the end.
Today Bird is mostly forgotten. She's not cited to in the pantheon of great prior judges. Instead she is most remembered by Meg Whitman and other Republicans who will bring her up to make political attacks (a little bit unseemly considering that she's no longer alive). But it should be noted that Bird has left a legacy. For example, during her tenture, the California Supreme Court held that free speech rights extended to those in privately owned shopping centers under the California Constitution, a great individual right that lasts to this day. The Court also held that there was a right to strike under the California Constitution, a decision that remains good law. During her tenure, the California Supreme Court also held that peremptory challenges based on race were unconstitutional under the California Constitution (long before the Supreme Court agreed). Other cases on the right to privacy and gay rights would set the stage for landmark decisions under the current Court in favor of gay rights and the right to choose.
Although Bird could be fairly criticized for politicizing her decisions on the death penalty, some hindsight is important here. Even though the Lucas Court would dramatically shift in favor of prosecutors and affirming death penalty sentences, crime would continue to soar in California. Reportedly, Bird was always concerned that the death penalty was disproportionately applied to minorities and often to people who might be innocent. As hindsight has shown, she was right. Since the development of DNA evidence, there have been hundreds if not thousands of exonerations of people convicted for crimes they did not commit, many of them on death row. In hindsight, something must be said for her own battle with cancer, which occurred while she was on the bench but was not known to the public. Regardless of her opinion on the death penalty and regardless of whether she was legally correct in her ways, I can imagine that someone battling for their own life would vote against taking the life of another.
In conclusion, Bird is not the boogeyman that Meg Whitman and her campaign has made her out to be. Even Stanley Mosk later remarked that "Rose Bird is a very bright, intellegent, competent woman." When Bird died, she received a glowing tribute from Justice Joyce Kennard, a Deukmejian appointee to the Court who arrived on the Court after Bird had been voted off the bench. Initially expected to be a conservative, Kennard drifted to the left on the Court and during her early years on the Court struck up a friendship with Rose Bird. At the Court's memorial session for Bird, Justice Kennard remarked "This woman of intellectual brilliance, extraordinary courage, compassion and grace has forever left her imprint on California's history." She would add "Rose championed the interests of the downtrodden. She was fearlessly committed to her ideals of liberty and justice for all." Kennard concluded "She should be remembered as a strong, brilliant, yet caring human being who gave heart to the law and hope to the disadvantaged that justice was available from the Supreme Court."
I will choose to remember former Chief Justice Rose Bird in that way.