In September 1999 Rose Elizabeth Bird telephoned a female reporter to arrange a lunch date. She dressed carefully in a blue blouse and black slacks, but the clothes hung on her thin frame and she could barely eat. She was dying of breast cancer and had only a few more weeks to live. The phone call had been unexpected. Bird was notoriously risk averse when it came to the media. As her life slipped away, however, she wanted to revisit the past and set the record straight before it was too late. It had been too late for a long time—for two decades, in fact.
She was almost sixty-three, and hers had been a remarkable life. From an impoverished girlhood in Arizona and New York, she had risen to heights no woman in California had then achieved. It had all unraveled. In 1986 she became the first chief justice removed from office by California voters. Even in her final months, she seemed not to entirely understand how it had all gone wrong.1
But the beginning of her journey held clues to the end. Bird always claimed to have learned her life’s most valuable lessons at her mother Anne’s knee. Chief among them: that women had to take care of themselves; that education, hard work, and perseverance were keys to a life free of physically taxing, low-paid labor; and that a career aimed at helping others less fortunate would bring psychic satisfaction along with remuneration. “She probably more than anyone else influenced me in understanding that you had to rely on yourself—that you couldn’t rely on a husband to financially see you through life,” Bird once said.2
But her father also played a profound role in the person Bird became: obsessively self-reliant, deeply untrusting of others, and possessing a nearly pathological need for control. She was also extraordinarily cautious, and she prized loyalty above all other traits, remnants of an early childhood with a parent who seems always to have had one foot out the door. Harry Dalton Bird left his family when Rose was small. As a teenager, she apparently revealed to a friend that he had been an alcoholic. As an adult, she never spoke publicly about Harry. She pointedly omitted references to him in all of her “Who’s Who” entries. If asked by journalists, she offered a terse response: “My mother married a much older man, and as a result my father died when we were very young.”3
Harry Bird was born in New Jersey in 1873 to parents who had emigrated to the United States from England just two years earlier. His first marriage took place in 1894 in Manhattan, and according to U.S. census records his first child was born less than six months later. Harry and his first wife, Charlotte, eventually had five children.4
In April 1918 Harry signed up for military service, though at forty-four he was too old to fight in World War I. The enlistment form described him as tall and slender, with blue eyes and light hair, and it listed his occupation as salesman for a New York City company that made sandpaper. He also worked for at least one company that made glue.5
Although Charlotte maintained that her marriage lasted into the 1930s, by the end of the previous decade Harry had left his family and was living in a rented apartment in lower Manhattan with a new wife, Anne Walsh Bird.6 When Harry and Anne’s first child, Jack, was born in August 1930, they had moved to Nevada; by the following year they had relocated to Tucson, Arizona. Three more children would be born there: an infant daughter who died in late 1931; a son, Philip, born in June 1935; and a second daughter, Rose Elizabeth, born in November 1936, four decades after her oldest half sibling.7
Anne was more than thirty years younger than her husband, though census records suggest that he may have misled her about the age difference. Anne was twenty-five and Harry claimed to be forty-two at the time of the marriage, though he was really fifty-seven, about the age of Anne’s own parents, James and Hannah Walsh. Her reasons for marrying Harry are unknown, but Anne grew up in a farming area in central New York that provided limited employment and marriage opportunities for young women. She surely did not marry for money, however; the Birds struggled financially throughout their marriage, which ended about the time the United States entered World War II.
By the time of his youngest daughter’s birth in the depths of the Great Depression, Harry was no longer a salesman. Instead, the family eked out a living on a chicken farm they owned in a rural and run-down section of Tucson. At some point in late 1941 or 1942, Harry left Anne and their children. Sources later suggested that he died soon afterward, but he lived another decade, dying in Tempe, Arizona—about one hundred miles from Tucson—on May 21, 1953.8
Rose Bird was clearly sensitive about her family background. Once, when a journalist suggested her father had abandoned his family, she snapped, “My parents separated.” In any case, Anne Bird never remarried, and Harry Bird seems to have been deleted from the family narrative soon after his departure. At the time of Harry’s death Rose was nearing the end of her junior year in high school and no longer lived in Arizona.9
In some ways the timing of his departure was fortuitous. World War II had opened up the job market for women, particularly in the defense industry, and Anne found work at Tucson’s Davis Monthan Air Force Base, installing Plexiglas windows on T-47 transport planes. With their mother at work all day, the three children were responsible for keeping the house in order: cooking, cleaning, and doing laundry. “It was hard,” Rose Bird once noted in an interview. “I tell myself I was 80 when I was 5.” She offered no specifics to explain this bleak depiction of her childhood, but a story told by her mother provided a glimpse at how it must have seemed to a young girl left to fend for herself.10
In one of the rare interviews she gave, Anne Bird recalled her children’s youth as generally happy, one in which they amused themselves playing ball and climbing trees. The neighborhood held few other children and no girls Rose’s age, so she had only her brothers as playmates. Jack was almost six years older and Philip less than two years older. They generally tolerated their younger sister, at least according to their mother. But the boys often enjoyed visiting the military base, where they fraternized with mechanics or with “an occasional tolerant pilot.” Rose was not welcome to join them.
One day Anne returned home just as her sons were headed to the base. When they saw Rose running to catch up, they turned and started throwing stones at the dirt in front of her to keep her from coming closer. “I can remember her standing there crying. But you know when I was working there was a limit to how much I could discipline the boys. I wanted them to take care of Rose and I didn’t want them to get angry at her so that when I wasn’t there she’d suffer for it. And I think by and large they were pretty fair to her.”11
Anne Bird remained at Davis Monthan until soldiers began returning from the war, and she eventually was let go. Advertisements, magazines, films, and the new medium of television depicted white women of the late 1940s and 1950s, with few exceptions, as happy housewives eager to replace their rivet guns with roasting pans and to exchange their work clothing for shirtwaist dresses and aprons. This lifestyle may have been claustrophobic for some ambitious women, but for Anne Bird—and millions of others—it was unattainable, a fact that her daughter implicitly understood, even as a young girl.12
Anne needed full-time work, but postwar opportunities were scarce to nonexistent for women, at least in fields that paid wages sufficient to support families. To make ends meet she took in laundry and cleaned houses. In 1950, having exhausted her options and her limited resources, Anne decided to leave the southern Arizona desert for the rolling hills and farms of her childhood home in New York.13 The job search there proved as fruitless as it had in Tucson, and after a few months, Anne moved with her daughter to Sea Cliff, New York, situated on a scenic spit of land on the north shore of Long Island, twenty-five miles from New York City. Rose was fourteen at the time, and she must have experienced extreme culture shock.14
Tucson sprawls across more than two hundred square miles of rugged desert terrain sixty miles north of the Mexican border. It is surrounded by mountains and held a population of nearly fifty thousand in the late 1940s. It also was a diverse place, counting Anglos, Latinos, Native Americans, and a few African Americans among its residents; the neighborhood where the Birds lived was mostly Latino. The Papago Reservation reflects the city’s Native American roots while the Mission San Xavier de Bac, built in the late 1600s and situated nine miles south of Tucson, recalls the city’s origins as a Spanish settlement. The OK Corral, about an hour’s drive east of Tucson, reminds visitors of the city’s connection to the wild and untamed West of lore. Later in her life, Rose Bird recalled attending segregated schools and having a Native American woman as a babysitter.
Sea Cliff is an incorporated village inside the boundaries of the larger town of Oyster Bay. It got its start in the mid-1800s as a campground for Methodist revival meetings and later became a resort town attracting tourists who sought the Victorian and gingerbread flavor of old-time Americana. Today it is still the kind of place that visitors refer to as “quaint.” Its small downtown seems designed for walking rather than driving. A few residents refer to Sea Cliff, perhaps with a touch of irony, as “Mayberry”—the bucolic, fictional town from the Andy Griffith television show. In fact, tourists eating lunch at the deli across the street from the town library are treated to black-and-white reruns of the Andy Griffith Show, complete with its distinctive whistled theme song and laugh track.
As its name implies, Sea Cliff sits high above a bay, which can be accessed by driving down a winding road or climbing down wooden stairs. Today, as in the 1950s, the town’s population of nearly five thousand is virtually all white and middle to upper-middle class, with a smattering of wealthier and poorer residents. The former live in large homes with expansive gardens, and the latter reside in a small number of rental apartments. Sea Cliff might have been more monochromatic than Tucson, but in the 1950s, it seems to have been more inclusive in some ways. Two of Bird’s classmates—both girls—were African American, and both were prominently featured in the high-school yearbook.15
Rose and Anne Bird lived in one of the rental housing units. A long-ago acquaintance remembered Anne as “nice” and the Birds as “rather poor.” Rose was viewed as friendly, though intellectual rather than emotional; for example, she was not particularly interested in gossiping or hearing about other people’s problems. She was, however, empathetic when it came to ethnic or religious minorities. A photo in her high-school annual depicts Bird with an arm around Valerie Gordon, an African American classmate. And she had Jewish friends, though at least one family member apparently was antisemitic. On a train trip to visit relatives in upstate New York, Bird suggested that a traveling companion not divulge her Jewish background.16
Bird herself undoubtedly felt like an outsider. Anne’s status as a single parent in an era that extolled nuclear families automatically placed her—and her daughter—into a separate category from more “traditional” women. It is impossible to know how, or if, Anne explained her marital status to others. In a list of parent sponsors of the 1954 high-school yearbook, Anne referred to herself as Mrs. A. W. Bird. The use of her own initials might suggest she revealed her status as a divorcée but also that she fudged her status, since she used only initials, rather than her full name.17
And Anne was a working mother at a time when most mothers stayed home. Her job at a plastics factory was physically draining and the hours long, but at least it enabled her to provide her daughter with a modicum of financial security. It was in Sea Cliff that Rose Bird began to reveal a set of values that would come to shape her life and worldview: an intense dedication to hard work, a fierce independence, and a highly developed sense of outrage at what she perceived as injustice.
Photos of Bird during her high-school years depict a tall, slender, and very attractive girl who wore her long blonde hair in a braid wrapped around her head or pulled high into a chignon, a popular style in the 1950s. Her eyes held the camera in a steady gaze. “She must have had lots of beaux,” a reporter once suggested to Anne Bird, who replied, “Not as many as you would expect. I think basically she was rather shy.”18 Her list of activities belies that assessment, however.
Rose entered Sea Cliff High School in her sophomore year and almost immediately signed on to the campus yearbook and newspaper. She also joined the Pioneers Club, the glee club, and the Alpha Math Club. She acted in school plays. In fact, she had the lead role in the senior play, Mother Was a Freshman. She played sports, including tennis, volleyball, softball, and basketball. Her involvement in so many activities seems to contradict her later depiction of herself as a plodder and a grind, a girl who stayed home “to do the shopping on the weekend and bake bread for the following week.”19
A life filled with constant activity did not signify parties, dances, and sleepovers, however. Former classmates recall Bird generally as “a loner.” In group photographs, she often held herself somewhat apart from her classmates. And comments beside her senior photo reflect her classmates’ view of her as serious and somewhat aloof. Other girls were “fun-loving,” “always on the go,” “vivacious,” and a “small-sized package of pep and energy,” but Rose held “ardent discussions with [English teacher] Mr. Palmer” and “munched on her favorite blackstrap molasses and yogurt.”20 Despite her attractiveness, stellar grades, and accomplishments, she was not voted best looking, most athletic, or even most likely to succeed. And she did not win prizes in either English or history, her favorite subjects.21
She was not reticent about revealing her political leanings, even at such a young age. The yearbook also characterized her as “our energetic political fiend” and “a definite opponent of certain politicos.”22 Offering a hint of what her partisans would later depict as courageous and her detractors would refer to as excessively ideological, she sailed against the prevailing winds.
In fall 1952, at the age of fifteen, she went door-to-door campaigning for Democratic presidential candidate Adlai Stevenson. Sea Cliff “must have been about 99 percent Republican and I was about the only one in my school who supported him,” she recalled later. This might have been a bit of an exaggeration. Current residents refer to Sea Cliff as historically more liberal than its neighbors, and one former resident recalled that the town also attracted a few “bohemians,” such as artists and those with somewhat unconventional lifestyles.23
Bird’s straitened economic circumstances made it necessary for her to work during the summers, and here, too, she showed remarkable assertiveness for one so young. One of her first jobs as a teenager was at a company that made metal plates for Addressograph machines. The work space was small and stifling; she later characterized it as “kind of a sweat shop.” The workforce was made up entirely of women, who stamped out the plates for low pay and with few breaks. Rose soon discovered, according to her mother, “that if all of them stopped their machines and then started them up at the same moment, they could usually manage to blow a fuse, thus allowing them a comfortable ten- or fifteen-minute respite while repairs were made.”24
After graduating with honors from Sea Cliff High School in 1954, Bird won a full tuition scholarship to Long Island University (LIU). She lived at home and commuted more than fifty miles round-trip each day, biking to the nearest train station and then riding the train to Brooklyn and back. Anne Bird once tried to explain to a journalist how her daughter had come to be so ambitious: “Even as a youngster in high school she realized that if you don’t have a good education, you were at the mercy of the economic system. Of course, you are anyway, but maybe less so.”25
She began as an English major hoping eventually to work in journalism and follow in the footsteps of her heroes, newspaper reporter Elmer Davis, who had headed the Office of War Information during World War II, and radio and television journalist Edward R. Murrow. Her interest in both men reflected her determination to make a difference. They were “crusading” reporters who used their respective platforms to oppose Wisconsin senator Joseph McCarthy’s red-baiting; Davis also had opposed Japanese American internment during World War II. “When my classmates would have crushes on movie stars, I would have them on news commentators,” Bird remarked.26
LIU was an ideal place to pursue this career goal, since the university sponsors the prestigious Polk investigative journalism awards, given annually in honor of George Polk, an American foreign correspondent for CBS News murdered in 1948 while covering the Greek Civil War. And the college counted noted journalists among its former students, including New York reporter and raconteur Jimmy Breslin, who attended LIU a few years before Rose Bird.
It was also during her undergraduate years that Bird found the first of several mentors. At LIU journalism professor Len Karlin played that role. He later recalled Bird as “a very lovely, sweet, caring person. I would have been very proud if she had been my daughter.”27 Karlin also described his former student as “naive” and possessing what he deemed “an idealistic view of the world.” In one interview he compared Bird to Billy Budd, the ill-fated protagonist of Herman Melville’s novel of the same name. This seems a somewhat prescient assessment.28
Even with a male mentor, in the 1950s journalism was still a man’s business. A lucky few women wrote “hard news” stories about crime, politics, or foreign affairs that appeared on newspaper front pages or in weekly newsmagazines, but most female journalists toiled in suburban or society sections of newspapers, where they wrote about school carnivals, Little League raffles, fashion, and parties—not the kinds of stories that appealed to a young woman who had her eye on the brass ring.29
At some point Bird decided to focus on political science, which seemed to offer more career options, including the possibility of advanced study. At her graduation she received the Alumni Association Award as outstanding senior in the class of 1958. She was on her way, it seemed, having been offered a scholarship in the University of California, Berkeley, graduate program in political science.
Her scholarship did not cover living expenses, however, so Bird remained in New York, working as a secretary to a research scientist at the Polytechnic Institute in Brooklyn. The job must have reminded her yet again of the limited options for women in the workplace, even those with college degrees. In September 1959 she finally set off for Berkeley, the crown jewel of California’s vaunted university system and her home for the next six years. Though not yet the center of explosive youthful protest it would become by the mid-1960s, Berkeley nonetheless provided a yeasty intellectual environment.
Students read Jack Kerouac and Allen Ginsberg. They listened to music by Woody Guthrie, Phil Ochs, and Pete Seeger. They discussed nuclear disarmament and closely followed the burgeoning civil rights movement in the South, where young African Americans put their lives on the line challenging Jim Crow and white racism in lunch counter sit-ins. It was a heady time to be at college—particularly at a politically aware campus like Berkeley. Bird had strong opinions, but as a career-focused graduate student, she had little time to participate in student activism.30
Seeking the broadest range of experience available, she chose to reside in International House (dubbed I-House), a campus residential facility built in 1930 with an endowment from John D. Rockefeller Jr. that housed Berkeley students from all over the world. In fact, instilling appreciation for diversity was the objective of I-House, and thus it can be inferred that students who chose to reside there were already politically and culturally aware and engaged. Students had to submit applications to be considered for residency. Bird’s cited the “ability to meet individuals from different nations,” which afforded “one an opportunity to get a new perspective on one’s own country.”31 Students who lived in I-House also were willing to buck tradition with regard to living arrangements. Most campus dormitories in the early 1960s still had strict rules and segregated men and women in different facilities. In I-House they lived together, though not in the same rooms.
Previous and future residents included famed economist John Kenneth Galbraith, attorney and civil rights activist Pauli Murray, Google CEO Eric Schmidt, astronaut Drew Gaffney, and political writer David Brock, along with nearly a dozen Nobel Prize winners, politicians, and scientists. Bird’s fellow residents included Cho Soon, later deputy prime minister of the Republic of Korea; Pete Wilson, future governor of California; and Edmund G. Brown Jr., the son of California governor Edmund G. “Pat” Brown. Bird knew Brown only as an acquaintance at Berkeley, and she later recalled the future governor as “a very quiet rather serious person, quite reserved. A lot of us were very interested in politics, but he didn’t seem very interested at all.” For his part, Brown later told a reporter that he had no strong recollections of Bird at Berkeley. “If I saw her more than a few times . . . I’d be surprised. I saw her, I met her, I knew her. She was not a close friend.”32
In her single-minded pursuit of success, Bird sought every opportunity that came along. In 1960 she competed for and won one of ten Ford Foundation fellowships given to graduate students from four California universities: Berkeley, Stanford, UCLA, and the University of Southern California. Each fellow received a nine-month assignment to work as an intern for a state lawmaker in Sacramento and earned a $500 monthly stipend. Bird was assigned to Democrat Gordon Winton, who chaired the state Assembly Education Committee. The task Winton assigned her: determining how many states had student testing programs and then working with him and his committee to draft a legislative bill for a California plan.
If Winton expected Bird, as a neophyte and a young woman, to take a cautious approach to her assignment, one destined not to ruffle feathers or challenge conventional wisdom, he was in for a surprise. “When she started out, she was in favor of [statewide student testing],” an assessment approach then gaining favor among lawmakers. “But then she read a critical report” suggesting that poor and minority students were adversely affected by the practice.
“So Rose and I—Rose did most of the work—came up with a compromise bill that said there would be testing, but gave districts choices of three or four different tests. Well, she did a beautiful job.” The final bill contained language mandating that scores be released to the public only on a district-wide basis. That way schools enrolling large numbers of poorer and minority students did not suffer by comparison to their more affluent white counterparts. When the chaptered bill was published Winton gave Bird a copy of it, with the inscription “To the real authority.”33
On her last day in Sacramento Bird informed Winton that she had decided to apply to law school at UC Berkeley’s Boalt Hall. Many members of the state legislature, including Winton, were attorneys, and Bird told him she believed practicing law would give her the opportunity to make a difference and to do interesting work. He encouraged her ambition, telling her that “the law is beginning to open up to women.”
It was not happening with any speed, however. Law schools had long been reluctant to admit women, but after World War II, schools had begun to use the Law School Aptitude Test (LSAT) for admissions, and it became more difficult to exclude women who earned high scores. By the early 1960s women still represented less than 5 percent of admissions, but at least they had a foot in the door. Bird was one of eight women in the class of 1965, out of an enrollment of more than two hundred.34
Her tenure at Boalt dovetailed with the emergence of a nationwide student protest movement focused on civil rights and the beginning of the Vietnam War. Berkeley played a pivotal role at the center of the Free Speech Movement in fall 1964. The law school was not immune to challenges. Some faculty felt compelled to defend protesters while others were frustrated by their growing antiauthoritarian bent. One observer noted that “there was a lot of hostility and anger openly expressed against anyone in authority, including the most sympathetic and indulgent faculty members.”35
Only the best and the brightest taught at Boalt, according to Frank Newman, who was then law dean. Being editor of a law review and clerking on a prestigious court were among the required criteria.36 The law school did have one woman professor. Herma Hill Kay arrived at Boalt in 1960, four years after graduating from the University of Chicago Law School. She taught family law, including marital property rights. Sho Sato, one of the first Japanese American law professors in the United States, taught government law and taxation at Boalt. In addition to his administrative duties, Newman taught legislative and administrative law, and Preble Stolz—a professor only five years older than Bird—taught civil procedure. Newman was Bird’s favorite professor and later became her colleague on the California Supreme Court while Stolz ultimately became a vocal critic of his former student.
Bird did well at Boalt. In her third year she won the moot court competition, in which students prepared and argued simulated cases before a panel of judges, made up of faculty members and prominent jurists. She also won the law school honors prize, the first woman to do so, thus beginning the string of firsts that came to characterize her professional life.
Bird had swapped one profession dominated by men—journalism—for another, a fact that she ruefully addressed in a poem dedicated to Professor Herma Hill Kay that appeared in The Writ, a Boalt student publication. It read:
Oh, we’re just eight women lawyers
Who just want to practice not preach
Oh, we’re just eight women lawyers
Who just want to practice not teach . . . .
We’ll stand near the seats of the mighty
Contributing our little bit.
And if there’s a gentleman present
Then one day we even may sit.37
By May 1965 she had attained enough prominence to be featured in a Mademoiselle magazine article about female law students. The article’s title, “The Case for Girls in Law,” suggested how far women still had to go to be accepted. “To the Hollywood director, the neat attractive girl walking up the courthouse steps might be the judge’s daughter,” the author began. “To the jurors or witnesses who pass her in the busy corridor, she might be a secretary returning from lunch, or a housewife scurrying to pay a traffic fine.” However, the “girl” in Mademoiselle’s article was “one of the fast-growing breed of young professional women, graduates of America’s top law schools.”
Bird was one of a dozen women featured. The writer described her as “a tall honey blonde, who swims a quarter of a mile each day to break up the sedentary student routine.” Bird understood “there would be tough sledding ahead,” she told the reporter, but, she added, “if you want to have an impact, law is the key.” She told her interviewer that she wanted to work in a government agency “on behalf of indigent defendants.” Trial work for private law firms, she acknowledged, was “a fairly remote possibility” for women.38
Bird was twenty-eight when she graduated from Boalt, years past the time when many if not most women of her era usually married. Yet she was still decidedly single. In college Bird had been romantically involved with an Englishman, according to one friend, but she worried about citizenship issues so had broken off the relationship. Nearly a decade later she undoubtedly had different concerns, understanding that marriage usually proved to be a serious disadvantage to women seeking professional careers, and she most definitely sought a profession, not just a job.39
Employers justified discrimination against married women by claiming that men needed money to support families while women worked only for “pin money,” and that women lost interest in careers once they had children. But as Bird knew from bitter experience, husbands and fathers could walk away from their families, leaving them destitute, or close to it. Later in life she expressed occasional regret at not marrying, but by then she had established herself in a successful career and had little time to search out a mate. She may have had intimate relationships, but if so, they remained under the radar of all but her closest friends or family members.40
Her closest relationship was with her mother. Anne Bird had remained in Sea Cliff during her daughter’s first three years in California. The summer before she started law school Rose asked her mother to move west to live with her in Berkeley. Anne agreed. Nearing sixty, she still needed to work, so she took a job with the Oakland Tribune newspaper, answering phones and typing classified ads. The two women would live together, with brief separations, for the remainder of Anne’s life.41
Asked much later if her sons resented their sister’s success, Anne Bird replied cautiously. “I would say they have mixed feelings. It is, I suppose, a sort of an attack on a man’s masculine feelings if his sister runs faster than he does.” But her daughter had “always kept going toward the same goal,” she added. “The boys might seem less successful because they’ve been more diverted. Things of immediate value seemed more important to them, whereas Rose looked at the long term.” Left unsaid was the notion that men of the time could be “diverted” from singular career paths without worrying that an opportunity once ignored might never emerge again. Thus Philip could attend law school at Santa Clara University in his late thirties and begin practicing law in his forties. Jack worked at a variety of jobs throughout his life, which he spent in the Tucson area.42
Graduating from law school might have seemed a sterling accomplishment for women in 1965, but law firms, as Bird had suggested to Mademoiselle, were not clamoring to hire them. A year earlier Congress had passed the Civil Rights Act. It barred employment discrimination based on race, color, religion, sex, and national origin. Yet most law firms still refused to hire women; less than 20 percent employed them.
A Harvard Law Review headline put it succinctly: “Women Unwanted.” The author of the accompanying article had asked potential employers, on a scale of plus 10 to minus 10, what kind of candidates they sought when hiring. The respondents rated women at minus 4.9. Asked to explain, they declared that women couldn’t “keep up” with men, that they were subject to “emotional outbursts,” and that they had “responsibilities at home.”43
To succeed in the masculine field of trial law women often had to go it alone, engage in attention-garnering behavior, and represent clients few others were willing to take on. California’s most famous female lawyer in this period may have been Los Angeles’s Gladys Towles Root, who defended sexual “deviants” and appeared in court in flamboyant costumes and outrageous hats, often purple—her favorite color. Sometimes she dyed her hair to match her clothing. She also employed a chauffeur, who transported her to court in a flashy Cadillac.44
Root’s strategies definitely did not suit Rose Bird. She initially struggled to find work despite a résumé that, as one of her law school classmates put it, “would knock the eye out of any potential employer.” It included a summer stint as a parole officer for the California Youth Authority, where her caseload consisted of teenage boys.45
Fortunately a male mentor emerged. Gordon Thompson was an associate justice on the Nevada Supreme Court. He had helped judge the moot court competition at Berkeley, was impressed by Bird’s performance there, and invited her to clerk for the Nevada court during its 1965–66 term. She quickly accepted the job and moved with her mother to Carson City, Nevada. Thompson later recalled Bird as “an outstanding law clerk. She was very bright, full of energy and she exhibited keen awareness” of legal issues applicable to the appellate process.46
Bird also clerked for David Zenoff, chief justice of the Nevada Supreme Court, who described her as “intellectually marvelous, personally charming, industrious and a hard worker.” He had had “only one other law clerk like her since,” he said, “and that was a man, now well established in the profession.” Zenoff did offer one observation that hinted at Bird’s increasing willingness to challenge authority. When Bird disputed a point, she became “physical in expressing herself. She was a very physical woman—tall and blonde.”
But disputes did not lead to hard feelings, and under Zenoff’s instruction, she also came to understand something about how the “game” of office politics worked in a male-dominated workplace. “During the noon hour we would go out and throw a ball around,” Zenoff said. “She could toss a ball half a block.” Apparently her older brothers had taught her a useful skill.47
In 1966 Bird passed the California bar exam. She and her mother returned to the state, and Rose began an intensive job search. She first applied to a Sacramento law firm, but the interviewer told her that he had “never met a good woman trial lawyer.” The Santa Clara County public defender’s office had an opening but had never hired a woman deputy; attorneys there were not anxious to break new ground. Public defender Sheldon Portman was impressed with her résumé, but when he polled his deputies, only two out of ten voted to hire her. Fortunately one of the two “yes” votes was Donald Chapman, Portman’s chief deputy, who overcame his colleagues’ skepticism, earning Bird another first for her gender.
In going to work for a public agency Bird was following the same path as the majority of her female counterparts. Since law firms seldom hired women, ambitious law graduates often cut their legal teeth in state and federal agencies. Even so, “the men were much concerned about having a woman come in,” she said later. Their reluctance had less to do with fears that she could not handle the work than with concerns about whether she would try to stifle the sometimes ribald and raunchy office atmosphere, which included profanity and liquor-laced celebrations following successful trials. But Bird proved adept at playing this game as well. And once again, her brothers’ tutelage came in handy. Her colleagues “even let me play on their softball team,” she said.48
In many ways the Santa Clara public defender’s office was a good place for Bird to start her career. It was small and, since it depended on county funding, often operated with fewer staff than needed to handle the workload. She quickly had to become adept at a wide variety of cases, including both misdemeanors and felonies—even homicides. Portman called the environment “very intensive, very active,” offering training that “very few lawyers get.” Bird “immediately showed signs of being very capable,” he said. The office had “a very high reputation with the appellate courts and it stems in large part from the work Rose Bird did, the excellence of her presentations, particularly.”49
The office also allowed her to represent the kinds of defendants she sought to help—indigents and working-class people. At one point she successfully defended a Native American woman arrested for prostitution. Afterward the woman had no money to return home, so Bird invited her to stay the night and then gave her money for bus fare. She may have graduated from an elite law school, but as one acquaintance said, “She still sees herself as being from a different class than most lawyers and judges.”50
Bird spent six years working full-time as a deputy public defender, years that coincided with the height of protest against the Vietnam War, the emergence of a radical wing of the civil rights movement, and second-wave feminism. It was a heady time to start out as a lawyer. As Bird acquaintance and fellow attorney J. Anthony Kline explained in an interview, “Many of us saw the law as a way to effectuate progressive social change. We were inspired by the possibilities the legal process represented. We saw the law and change through the law as the great victory of our society.”51 However, this period also saw the beginning of a backlash against what conservatives deemed youthful excesses, including antiauthoritarian values, drugs, and the sexual revolution.
Bird made more than eight thousand court appearances in Santa Clara County and eventually rose to become chief of the office’s appellate division. Her professional success meant that her mother no longer had to work, and Anne Bird often showed up to watch her daughter in court. The job also gave Bird the opportunity to write briefs for cases argued before the California and U.S. Supreme Courts. One involved a police search for illegal drugs. Officers found no drugs in the defendant’s home, so—without a warrant—they rummaged through his trash cans. As Bird later described it, “The question was whether an individual had a right to privacy in his garbage can. At the trial level it was decided that he did not.”
On appeal the California Supreme Court disagreed and reversed the lower court ruling. The state’s attorney general appealed the reversal to the U.S. Supreme Court, which agreed to hear the case. Bird, representing the California Public Defenders Association, successfully argued that the California Constitution should take precedence in this particular case.52
Over time her colleagues came to see her gender as a useful attribute, helping to disarm opponents in the courtroom. In an interview Santa Clara County prosecutor Ulysses Beasley described the first time he tried a case against Bird. “The way she spoke, it was so soft I thought she was crying. I guess it had an effect on the way I was handling the case, because the judge took the clerk aside and told him I was acting as though I wanted to give the case to Rose.”53
Though many if not most of Bird’s contemporaries described her—then and later—as reticent and private, she sometimes loosened up at parties. “She could have half a beer and get real happy,” Beasley told one reporter. “We would go to a party and Rose would be there laughing and having a good time and somebody would say, ‘she’s in a good mood tonight.’ And someone else would say, ‘she must have had half a beer.’”54
But Bird was not always so easygoing, according to Beasley, who claimed that she occasionally exhibited a “hair trigger” temper. “I didn’t want to set it off,” he told a reporter. Beasley also suggested that Bird, even early in her legal career, had a judgmental side to her personality. “She was a very high, moral person, but there was something about Rose. I can’t put my hand on it. She was just wrongheaded when it came to understanding people. I always felt she thought I should be a very liberal person because I was black.”55
By the early 1970s Bird’s reputation as a talented trial lawyer opened a new opportunity—a joint appointment with the public defender’s office and Stanford Law School. She taught two classes a semester at Stanford as part of a clinical program that gave students real-world experience in both criminal and civil cases. Her connection to the public defender’s office “enabled my students to handle trial cases in the courts of Santa Clara County,” she said. Stanford law professor Anthony Amsterdam worked with Bird on the criminal cases.56
Amsterdam later described the clinical approach as “having students handle actual cases instead of simply sitting in a classroom.”57 Students were recruited from both the Stanford and Santa Clara University law schools. Many touted the program as extraordinarily valuable for their future career endeavors. John Cruden, a deputy assistant attorney general in the U.S. Department of Justice, recalled being a student of Amsterdam and Bird. “Tony and Rose led us through lectures, role-playing, practice sessions and then videotaping with daunting critique sessions. The interviewing, plea negotiation and in-court work was superb.”58
The program proved so popular that other universities, including UCLA, adopted it. William Warren, dean of the UCLA School of Law, described Bird as “a stern taskmaster, a very hard-working, intense person who could be ruthless in critiquing student performances.”59 But many of her students appreciated her toughness. Scott Sugarman later became a staff attorney for Bird. She was “widely regarded as one of the best teachers on the faculty,” he said, committed “to teaching her students to be real lawyers.”60
Cruden said that Bird went above and beyond simply teaching, frequently meeting with students outside of class. She ultimately “became a friend and mentor. She was quick to hold our new baby daughter” and at law school graduation “congratulated each one of ‘her’ students.”61 One participant in the program, Stephen Buehl, continued working with Bird after she left Stanford, eventually becoming her chief aide, a job he held for her entire career.
These contrasting views hinted at Bird’s complexity. She possessed an utter lack of subtlety and nuance. She could be abrupt and brutally honest, and yet she devoted herself to her clients and her students. Work was her lifeblood. She may have been willing to participate in office sporting events and an occasional party, but she lacked the ability to stroke egos or tell white lies. She was intensely hard on herself and on other people. But her heart was in the right place; virtually everyone who knew her at the time said so.
She also cared little for popular trends in fashion, perhaps intentionally. As a college student she had expressed dissatisfaction with her looks—particularly with her small and crooked teeth, a friend recalled. As a young professional, however, she wanted to be judged on her ability, not her appearance. By her midthirties her hair had grown darker, and she usually wore it pulled high off her forehead and wrapped into a loose French twist. Sometimes she added ribbons or bows. Wispy curls framed her face, and she wore little if any makeup. In photos she looked more like a prim schoolmarm than a pathbreaking attorney. Her work attire generally consisted of print or striped blouses, shapeless skirts or dresses, low-heeled shoes, and chunky jewelry. Within a few years she would begin wearing pantsuits, but in the 1960s and early 1970s women lawyers were not yet allowed to wear pants in court.62
Bird was not the first woman to teach at Stanford; that honor had gone to Barbara Babcock, a graduate of Yale Law School, former director of the public defender system in Washington DC, and a committed feminist who taught criminal procedure. Bird’s life and work clearly reflected feminist principles, at least the brand of feminism focused on getting ahead via individual accomplishment. She did join women’s professional organizations; she was a founding member of California Women Lawyers, for example. But she was not an outspoken advocate of women’s rights in general, nor was she necessarily drawn to other women whose overtures suggested a focus on or desire for female solidarity. Thus her personal and professional lives remained separate, and each night when she left work she went home to the small Palo Alto home that she shared with her mother.
Anthony Amsterdam may have been the person who most influenced Bird at Stanford. He cotaught in the clinical program, but more important he was a leading strategist in the national fight to end capital punishment, the issue with which Bird would come to be closely identified. Working with the NAACP’s Legal Defense and Educational Fund, Amsterdam and other lawyers came to focus on the “vagueness” and arbitrary nature of capital laws. Since juries were mostly made up of white, middle-class citizens, they did not necessarily identify with impoverished individuals and minorities, who thus were far more likely to be condemned and executed than whites who committed similar or even worse crimes.
By the late 1960s Amsterdam and the NAACP had begun to make headway with the U.S. Supreme Court in getting justices to overturn individual cases. But he and other abolitionists sought a national ban on capital punishment. In 1972 he successfully argued Furman v. Georgia before the U.S. high court, convincing a majority of justices to end capital punishment, at least for the moment, and to require states to rewrite death penalty statutes.63
Bird had to this point in her career focused little if any attention on capital punishment, though people who worked with her said later that they assumed she would be against it. Nevada chief justice David Zenoff said she had never expressed an opinion on the death penalty while clerking for him, “but from talking to her, I knew she would be the kind who would be philosophically opposed to it.” Stanford law professor John Kaplan, who worked with both Bird and Amsterdam, said, “I don’t think she would look with favor on the death penalty because she knows a lot about it.”64 Amsterdam’s perspective undoubtedly led Bird—steeped from youth in the notions of class and racial privilege—to ponder the impact of both factors on capital cases.
In spring 1974 Bird left Stanford. As an adjunct faculty member she had no chance of earning a tenured position; in any event she had become increasingly critical of the ivory-tower nature of legal academics, which, she believed, did not adequately prepare students for the real world. She had always wanted to have her own law firm, saving money toward that end. She planned to open a private practice after taking the summer off, her first vacation since moving to California fifteen years earlier.65
As it turned out her life veered in a different and wholly unexpected direction. Jerry Brown, Bird’s old Berkeley acquaintance, had become interested in politics after all. In 1970 he had run successfully for California secretary of state, and Bird had volunteered in his campaign. In 1974, at the age of thirty-six, Brown decided to run for governor; with time on her hands, Bird decided to volunteer again. At first she worked in his San Mateo campaign office stuffing envelopes, but soon she became his chauffeur, driving him around the San Francisco Bay Area for campaign appearances.
Even though they came from vastly different backgrounds and still could not be called friends, Brown and Bird shared a few personality traits. Both tended to be loners who kept their own counsel, guarded their privacy, and were frugal, prickly, and disinclined to suffer fools gladly. Both claimed to prize directness and honesty in themselves and others, though some acquaintances and colleagues of both called this assertion disingenuous.
But Bird’s blunt manner served her well when it came to Brown, at least in the short term. In an interview long afterward she recalled driving Brown and his campaign manager to a debate with Brown’s Republican opponent, State Controller Houston Flournoy, shortly before the November 1974 election. Brown casually asked Bird how she thought he was doing. “Apparently his campaign staff had kept from him the fact that he wasn’t doing real well. I said, ‘I think you’d be lucky if you win.’ I thought [campaign director] Tom Quinn was going to explode because it was not something that was useful to have him be told right before a debate.”66
Brown ultimately won a narrow victory and asked Bird to serve on his transition team; she agreed, thinking it would only be a matter of weeks until she returned to practicing law. That time never came. Just before his January 1975 inauguration Brown asked her to join his cabinet. He initially planned to name her resources secretary because, as she later put it, “He thought that women were sort of the symbol of Mother Earth, and to have a woman head up that agency would be a symbolic recognition of that.”67 Ultimately he decided to appoint her secretary of the Agriculture and Services Agency.
When reporters asked Brown why he had selected Bird, who had no experience working in state government, to head California’s largest and most important agency, the new governor called her “a very well organized, very intelligent person. . . . She is extremely honest. And I think she’s committed to the kind of society I think we ought to have.” Anthony Kline, another Brown aide, suggested a different motivation. During the period between Brown’s election and his inauguration he had given each aide a different assignment; Bird’s was to investigate issues related to agriculture, so it may have seemed like a natural fit.68
Bird accepted the position even though it meant moving to Sacramento during the week and returning to Palo Alto on weekends. In doing so she added to her growing list of firsts, becoming the first woman to serve in a gubernatorial cabinet in California and the first nonfarmer to head the sprawling agency. She took the job, she told a reporter at the time, because “the way women advance is by showing that they can do the job the same way anyone else could.” But she worried about losing her privacy.69 She could not have foreseen in January 1975 just how profoundly her decision to join Brown’s cabinet would affect her, beginning the process of altering the life she had so carefully constructed.