On Thanksgiving weekend 1978, Associate Justice Frank Newman was vacationing in Carmel, California, when he received a phone call from Chief Justice Rose Bird. More than two weeks had passed since the November election, and Bird was still smarting over the Los Angeles Times article, as well as subsequent newspaper accounts that implied the court had held up its ruling on People v. Tanner.
If true, such an action could be construed as judicial misconduct. As he described the conversation years later, Newman recalled telling Bird that “I certainly don’t think any letter should be sent until we meet on Monday.” Bird told him she had already sent the letter. Newman replied: “I think it’s a terrible judgment that you’ve decided all by yourself without consulting us.”1
Bird never explained her reasons for acting without input from her colleagues, but they are not difficult to discern. She believed strongly that Stanley Mosk and William Clark were the two unnamed court sources behind the stories. Both undoubtedly would refuse to sign on to an investigation aimed at revealing their participation in an action that also might be construed as judicial misconduct. She also knew that her critics outside of the court were likely to keep hammering on its handling of specific cases and hoped that an investigation would put the issue to rest. It is also not difficult to imagine that Bird, angry over what she viewed as continued efforts to sabotage her, thought that publicly outing the press leakers might embarrass them and discourage future such endeavors. Finally, others—including the California Chamber of Commerce—had begun asking for an investigation, and she undoubtedly wanted the inquiry to happen on her own terms.
Whatever her motives, she got far more than she bargained for. Rather than silencing critics, the ensuing investigation placed the judiciary under a microscope and provided the public with a close-up view of how the court went about its work. The picture was not a pretty one. The hearings revealed justices not as ethereal and impartial beings but as ordinary people—petty, hypersensitive, and backstabbing. Critics of the judiciary may have cheered this development, but many others did not, and they blamed California’s first female chief justice for tarnishing the court’s reputation.2
On the surface, People v. Tanner seemed too ordinary a case to fuel accusations and heated rhetoric. In January 1976 twenty-seven-year-old Tanner held up an East Palo Alto 7-Eleven. Police captured him a short time later on the street outside the store and confiscated his gun—a .22-caliber pistol—and forty-one dollars he had taken from the cash register. Tanner went to trial, and a jury convicted him of robbery. Under a law enacted less than a year earlier, dubbed “use a gun—go to prison,” anyone using a firearm in the commission of a felony had to serve prison time. Tanner had used a gun, thus he had to be sentenced to prison—end of story.3
But the case was not exactly as it seemed. Tanner’s “robbery” had been staged. He worked for a company that provided security to convenience stores, and his job was to “shoplift” items to determine how much attention clerks actually paid to customers. The East Palo Alto 7-Eleven had recently terminated its contract with the security firm, so Tanner decided to fake a crime to convince store owners to reinstate the contract. His gun contained no bullets; Tanner alerted the cashier, asked him to call police, and then casually waited for them to arrive.
Everyone involved in the trial agreed on one thing: pulling such a stunt was incredibly stupid—but what to do? Tanner had no criminal record; he had even served honorably in the military. Yet under the “use a gun” law, he had to be sentenced to prison. The judge, who called the case “very, very bizarre,” decided to strike the gun charge, enabling him, he believed, to sentence Tanner to a year in San Mateo County Jail, a psychiatric examination, and five years’ probation.4
California attorney general Evelle Younger was irate. He appealed the lenient sentence, and an appellate court agreed that the judge had acted illegally; under the law, Tanner had to go to prison. Tanner’s attorney appealed to the California Supreme Court, which heard the case in February 1978. Tanner then became one of dozens of cases circulating among the justices. The average time from argument to final ruling in the late 1970s was seven months, though some cases were decided in as little as two months and others took up to two years. For Bird’s opponents, the clock started just after oral arguments ended.
When a ruling was not forthcoming by September 1978, they saw an opportunity to pounce. Nothing else had seemed to stick, so they took a new tack: declaring that the court had decided to hold the decision until after the election to help Bird win confirmation.5 The Daily Journal, a legal newspaper, first raised the prospect of intentional delay in a September article by three prominent members of the law enforcement community, including Ronald Reagan acolyte Edwin Meese III. The article criticized what the writers deemed the court’s “pro-defendant” slant. “It is not at all clear what is holding the [Tanner] decision up. . . . [T]here has been a slowdown in the release of important decisions as the November elections draw nearer,” the writers charged.6
In October Evelle Younger, running for governor on the Republican ticket, added his voice. At one campaign stop he said: “I believe the Brown Court has reached many important decisions which have been written and have only to be released.” In a conversation with reporters, Younger went further. “I have suggested certainly that the Court is deliberately withholding the [Tanner] decision until after the election.” He later walked back his accusations, but his recanting garnered far less attention than his original allegations.7
The fact that Bird’s opponents circulated such damning charges might be construed as little more than political posturing. But without exception accusers suggested they already knew the court had decided to ignore the “use a gun” law and refuse to send Tanner to prison. They also seemed to know that Associate Justice Mathew Tobriner had been assigned to write the lead opinion. Both pieces of information suggested that someone inside the court was leaking the information. This would have been virtually unheard of in the pre-Bird era, where judicial rulings remained closely guarded secrets until the date of their release.8
As November approached, the drumbeat grew louder. State senator H. L. Richardson contacted Los Angeles Times Sacramento bureau chief Robert Fairbanks, suggesting that the paper follow up on the allegations about Tanner. “I wanted the press to pursue it,” Richardson explained later, though he admitted he had no evidence the decision had actually been held up. He then telephoned Associate Justice William Clark—who prided himself on being accessible to journalists—and informed him that Fairbanks and his colleague William Endicott planned to do a story about the Tanner case.9
At Richardson’s suggestion, Fairbanks called Clark and suggested that Clark’s colleague Stanley Mosk had already spoken to Endicott. Fairbanks laid out Mosk’s purported comments and, after some feints and parrying back and forth, asked Clark if he would have problems seeing the story he had just outlined in print the next day. Clark later said, “I don’t think I responded, or if I did it was—I am certain—not a yes or a no, but maybe a chuckle.”10
It is possible that Clark did not intend to signal agreement with the story angle presented by Endicott and Fairbanks; if so, he never proffered a vigorous denial. But if this account is correct, it invites the question: why would Clark help reporters, even passively, with a story likely to harm at least two of his colleagues and draw negative attention to a court of which he was a member? To that point, he had seemed to bear Bird little of the ill will that had characterized her relationship with Mosk. And Clark had served amicably alongside Tobriner for six years.
But Clark did have strong ideological differences with the court’s liberal wing and was almost always on the losing side of decisions. His conservative nature had as much to do with religion as politics. He was a devout Catholic who preferred Latin masses, and his San Luis Obispo County ranch held a chapel—built partly of stones from William Randolph Hearst’s “castle” and from European monasteries visited by Clark and his wife, Joan.11
Clark also was very close to Ronald Reagan; within a few years he would leave California and follow President Reagan to Washington to take on a variety of advisory roles. Time magazine once called Clark the most powerful man in the White House after Reagan. As both governor and president, Reagan had made what he deemed “activist” courts a centerpiece of his agenda. Additionally, Clark’s friend Mary Nimmo had led the “No on Bird” campaign, and in fall 1978 Clark himself travelled throughout California, giving speeches that took aim at “the liberal faction of the high court.” In one San Diego speech, for example, Clark claimed the court “blazed too many legal trails,” making, rather than interpreting, law.12
Finally, most of Clark’s fellow justices viewed him as a legal lightweight undeserving of his position on the court. Former chief justice Donald Wright recalled him as a nonfactor. “I don’t recall ever hearing him express an opinion on much of anything. In fact, it was difficult to get a vote out of him. When we would have discussions after our hearings on cases, and we were making the final vote, Bill’s response would usually be, ‘Well, I’ll have to make more study of that. I don’t know.’” Clark seems to have felt little connection to his colleagues; he virtually never went to lunch with them. “Occasionally he would get talked into it following a Wednesday conference, but the rest of us used to all go out to lunch together,” Wright said.13
The election did not end media focus on Tanner, and the stories expanded to include details of justices’ personal relationships, information that might have appealed to a segment of the reading public more interested in gossip than in court cases or practices. On November 15 Endicott and Fairbanks mentioned William Clark by name for the first time and suggested that all was not well between Clark and the chief justice. It seemed that Clark had written a sharply worded dissent in Tanner specifically mentioning Bird, who believed Clark meant to demean and humiliate her.
“Reportedly, the dissent charges that the chief justice switched legal philosophies between the sentencing case [Tanner] and a well-publicized rape decision of last June [Caudillo],” the journalists reported. “In both cases, her vote was in favor of criminal defendants.”14 On November 16 Endicott and Fairbanks reported that Tobriner had unsuccessfully tried to get all six of his fellow justices to sign a statement declaring that the court had “done nothing improper. . . . However, at least one justice has refused to sign the statement and has said he will not do so.” Clark later admitted being that justice, though he offered varying explanations for his refusal.15
On November 23, the day before Bird wrote her letter to the Commission on Judicial Performance, Endicott described the rising tensions and “unprecedented leaks from inside the normally sacrosanct court chambers.” Leaked information included details about Tobriner’s efforts to get colleagues to sign his statement and “reports from court insiders of justices angrily shouting at one another, some not speaking to others and one describing the atmosphere . . . as Nixon-like.” By this time, the story had gone national. Lou Cannon of the Washington Post detailed how Bird had angrily demanded that Clark remove the critical reference to her in his Tanner dissent.16
Clark had not only refused, Cannon wrote, but instead elevated the comment from a footnote to the body of his dissent, giving it even more prominence. Some legal scholars and lawyers viewed Bird’s response to Clark as hypersensitive, since judges often used opinions to verbally spar with each other, sometimes viciously. One Stanford law professor recalled U.S. Supreme Court opinions in which justices tossed around such derogatory terms as “intellectual incoherence,” “vacuousness,” and “blatant willfulness.”17 But it seemed to Bird partisans that Clark had gone out of his way to cause trouble by putting the chief justice on the defensive and forcing her into an attack mode.18
If this was Clark’s objective, he was astoundingly successful. By Thanksgiving, the situation had become intolerable from Bird’s perspective. “It is my firm conviction that in this way the false allegations made against this court and its justices can be fully and completely examined,” she wrote in her request for hearings. And she wanted the process made public, to discourage opponents from dubbing the investigation a “whitewash.”19
Her unilateral action dismayed others besides her colleagues. “You just have to ride out the storm,” said one official. “The buck does stop here. . . . That criticism goes along with the job.”20 Or as Harvard law professor Laurence Tribe put it, “Anybody can assert at any time that somebody is up to no good.” Tribe later acknowledged, however, that “once Chief Justice Bird’s opponents and the court’s critics had stirred the public’s anger, the politics of the situation made some form of open hearing” inevitable.21
A few days after receiving the letter, the commission agreed to initiate an “unprecedented inquiry” into accusations of improprieties involved in the Tanner case and others.22 But its relationship with the court significantly complicated the situation. The legislature had created the commission in 1960 to investigate judges at all levels for alleged malfeasance or incompetence. Normally, investigations focused on individual judges, not an entire court, particularly one to which the commission was inexorably bound. Supreme court justices appointed five members of the nine-member commission.
Before hearings could commence, however, the Judicial Council—the policy-making body of the state judiciary—had to establish a set of guidelines. It too was closely linked to the supreme court, since the chief justice appointed fifteen of the twenty-one council members and chaired the council as well. At the time Bird wrote her letter, all fifteen were appointees of former chief justice Donald Wright. In February 1979 they would step down to be replaced by Bird’s appointees.
Critics might be excused for skepticism about an arrangement that basically amounted to the court investigating itself, a circumstance that, as one appellate judge put it, placed the commission “in a politically untenable position.” Ordinarily hearings into judicial malfeasance were held behind closed doors. The public only saw the commission’s final report, a problematic arrangement under the present circumstances. To forestall any hint of impropriety, the Judicial Council, after a rancorous meeting, decided that the commission, for just this one occasion, would conduct a preliminary investigation, followed by hearings, which would be open to the public.
Those who opposed this move complained of its ramifications for the future. “Once the Commission embarks on a course of public hearings in some cases, it would have difficulty in resisting insistent demands in other cases,” wrote one Judicial Council member. Judges under suspicion “would almost be compelled by public opinion to join in the request for public hearings, lest they be suspected of having something to hide.” The vote for open hearings meant that the public and media representatives—including television reporters—could drop in on the proceedings at any time and watch state supreme court justices dressed in street clothes testifying about court practices in front of a panel composed partly of other judges. Everyone took great pains to insist the proceeding was not a trial, but the visuals suggested that it was.23
To oversee the hearings and act as special counsel, the commission hired Seth Hufstedler, a prominent Los Angeles attorney and the husband of President Carter’s education secretary, Shirley Hufstedler. He was a consummate insider and longtime leader in the state’s judicial establishment. A Stanford Law School graduate, Hufstedler had served as head of the California bar association, and his legal practice focused on business and commercial law, with clients mostly sent to him by other lawyers. He also had close ties with the state supreme court, having previously served on the Judicial Council.
Soon after his appointment, Hufstedler—who would be paid $100 per hour—announced the mission of the pending hearings: to examine delays in releasing opinions as well as the “unauthorized disclosure of confidential information regarding any of the pending cases prior to the public release of the decision.”24
Meanwhile, as various groups and individuals began debating the scope and structure of the hearings, in December 1978 the court released its long-awaited Tanner decision. As journalists had predicted and now reported, the court overturned the “use a gun” law by a 4–3 majority. At least journalists interpreted the decision that way. And Tobriner had, in fact, written the lead opinion. But Tobriner denied then and later that the ruling had actually nullified “use a gun,” since the state legislature had left intact another provision that granted discretion in sentencing to judges. Thus, according to Tobriner, the legislature had not intended to entirely “remove from the trial judge the power . . . to strike a charge that a defendant used a gun and to grant probation when the interests of justice so dictate.” If lawmakers had intended to take away all discretion, they would have done so “in clear and unequivocal language,” Tobriner wrote. Mosk and Newman joined his opinion.25
But three other justices wrote opinions as well, and none of the rulings garnered a majority. Bird concurred that the trial judge did have sentencing discretion but offered a different reason than Tobriner. Legislators had no power to dictate what judges could or could not do in sentencing, she wrote. Such an action “violated the separation of powers provisions of the state Constitution,” since the judiciary and legislative branches of government were separate and coequal.
“No one condones using a firearm to secure an illegal end,” she added, but the Tanner case was the product of “myths” and “slogans.” Besides, the judge had not just let Tanner off with probation; he had sentenced Tanner to jail. Tanner had served nine months of his year-long sentence and at the end of 1978 was working for a computer firm in the San Francisco Bay Area.
Clark wrote a blistering dissent, joined by fellow Reagan appointee Frank Richardson. Tobriner had come to his decision via “convoluted analysis,” and he “twisted the meaning of the law” to suit his own ends. Bird, meanwhile, was a hypocrite. Six months earlier in the Caudillo rape case, she had “acknowledged that it is the Legislature in which the Constitution vests authority to prescribe criminal penalties.” But in Tanner, she said the legislature possessed no such power. Manuel wrote a short, separate dissent that seemed extraneous, since he mostly agreed with Clark, arguing that the legislature had intended to bar judges from granting probation to anyone using a gun to commit a crime.26
The law’s author, George Deukmejian, called the ruling “incomprehensible” and requested a rehearing, since the lead opinion had not garnered support from a majority of justices. Even Governor Brown added his voice to the chorus, saying “he would seek ‘whatever necessary’ from the Legislature to revive the law.” That threat was rendered moot within weeks, when the court announced plans to revisit the Tanner decision.27
Several months later, bowing to public pressure and without explanation, justices reversed themselves. With Mosk now joining the majority opinion written by Clark, the court decided that judges did not have sentencing discretion after all. But Harold Tanner would remain a free man. Sending him to prison after all this time would be unfair, the court decided. This time it was Associate Justice Newman who wrote the withering dissent: “A shrill, clamorous campaign—inspired and nurtured by experienced, well-financed and posse-like ‘hard on crime’ advocates—has had a still incalculable but dismal impact on the judicial process in California.”28
More than six months after Bird’s request for hearings, the Commission on Judicial Performance opened the proceedings on June 11, 1979. The setting was the auditorium of San Francisco’s sleek, modern Golden Gate University, situated in the Mission District, one of the less opulent sections of the city. No justice made an appearance the first day, but print and television reporters were on hand, as were lawyers, court staff, the public, and eight members of the commission. The ninth member, appellate judge John Racanelli, had recused himself, citing personal friendship with the chief justice.
Bird had authorized $250,000 to cover the cost of the hearings. Five justices had hired attorneys. Bird hired Jerome Falk, a law school classmate and high-profile appellate attorney; Stanley Mosk hired his son, Richard Mosk; Wiley Manuel hired Roger Traynor’s son Michael; Frank Richardson hired Richard Johnston; and William Clark said he would rely on staff attorney Richard Morris.29
Hufstedler had kept busy in the weeks prior to the opening gavel gathering information via interviews, depositions, and nearly 1,300 pages of court documents. He and three other attorneys interviewed all of the justices, “almost the entire staff of the Court, and many people outside of the Court who seemed to have relevant information.” His opening statement consumed sixty-nine pages and took two hours. He promised (or warned) his audience that it would “for the first time . . . become acquainted on an intimate basis with its Supreme Court.” And he acknowledged that the court was “a powerful institution, but a fragile institution.”
He also revealed the state supreme court’s staggering caseload—larger than that of the U.S. Supreme Court. During the first six months of 1978, the weekly average number of cases circulating in judges’ chambers was 163. And unlike their U.S. Supreme Court counterparts, who started over each year with a new slate of cases, California high court justices carried over cases from one year to the next.30
The public portion of the proceedings would take more than a month and feature testimony from four justices and several staff members. Some of the discussions were mind-numbingly arcane, such as lengthy debates over the definition of a “list.”
Observers who knew little about how the court operated became accustomed to hearing references to boxes stuffed with case materials being passed back and forth among justices. The boxes remained in an office until a justice had written a preliminary opinion, and then he or she passed them on to a colleague. One reporter began carrying her own “box” to the hearings. It became the object of much merriment among other media representatives.
Little else proved amusing, however. By the time the hearings dragged to a close, some justices owed as much as $40,000 in legal fees. One justice had filed suit to close the hearings, and the longstanding notion of judicial comity and collegiality had been buried beneath an avalanche of bitterness and misunderstandings.31
Frank Richardson was the first witness. He had joined the court in 1974 as the third and final appointee of Governor Reagan, who had hoped to avoid a reprise of the rancorous reaction to his appointment of William Clark. The legal community regarded Richardson, formerly an appellate judge in Sacramento, as qualified, quietly competent, and somewhat conservative but not overtly political. His comments hinted at the excruciating toll the accusations had exacted on the court. “I value my colleagues highly,” he said. “They are a group of able, hard-working people.” He did not believe Tanner had been held up for political reasons, he said. “I have never felt in this case or any other that I should push an individual who is working on a case, because . . . I have my own faults and they are numerous. This is a sensitive area for a justice.”32
Tobriner came next. He fiercely rejected the idea that he had treated Tanner differently than any other case. Throughout his long career, both as a lawyer whose practice extended back to San Francisco in the 1920s and as an esteemed colleague of four chief justices, no one had ever hinted at any impropriety. Yet at the age of seventy-five, as author of the Tanner decision, it was his life’s work and reputation that were most on the line.
He alluded to this in his introductory remarks. “After seventeen years on the court that I should be accused of holding a case up, to me was disastrous, was a tragedy; at least in my life.”33 No matter what the outcome, his longstanding friendship with Mosk also lay in tatters. Bird’s appointment had been the catalyst. Mosk believed that Tobriner should have voted against her confirmation. Their relationship soured even further when it became obvious that Tobriner viewed himself as a paternal figure, helping Bird navigate her early days as chief justice, rather than letting her sink or swim on her own.
In fact, Tobriner’s helpfulness to Bird seemed to lie at the heart of the accusations on the “use a gun” case. “One issue the commission has to look at is the extent to which Justice Tobriner was seeking to protect the Chief Justice,” Hufstedler said in his opening remarks. Tobriner denied being Bird’s “protector,” insisting that he had supported other chief justices, including Roger Traynor and Phil Gibson. But he told commissioners that he believed Bird to be “a person of integrity, a person who was doing an excellent job on the court,” and he quickly became angered by the “terrible things” her opponents were doing, “just terrible.”34
He dismissed the notion that political implications for Bird’s election might have held up the Tanner case. “Many cases in our court—in fact almost all cases—do have political consequences,” he said. And Tanner seemed an unlikely candidate for fueling outrage. Several previous legal cases had granted judges sentencing discretion, and since state lawmakers had left one such provision on the books, they must have understood there would be instances where the “use a gun” law did not apply.
Tobriner’s first sense of Tanner’s electoral significance came on Election Day with the Los Angeles Times story, he said. He acknowledged meeting with Bird in her chambers. “We wondered . . . who the [reporters’] sources were.”35 William Clark had been the one to suggest holding Tanner until after the election, Tobriner claimed. After Clark wrote the dissent that angered Bird, Tobriner had tried to smooth the waters by asking Clark to delete the critical reference. Clark refused, instead suggesting that if Bird was so worried about the political implications of Tanner, she could simply hold up the decision until after the election. The suggestion stunned him, Tobriner said.36
Asked whether he had informed other colleagues about the conversation with Clark, Tobriner initially said he had not. “I felt that it would only harm the situation. . . . I didn’t want to create any more tension on the court.” He later corrected himself, acknowledging that he might have reported the conversation to Bird. From that point, Tobriner added, he tried to distance himself from Clark. He no longer trusted his colleague, particularly after Clark refused to sign his statement exonerating the court from any improprieties in Tanner or other cases.37
During her five days of testimony, Bird also homed in on Clark. She had known early in her tenure that she would face stiff opposition in her bid for retention; “I never had any doubt about that,” she said. By summer 1978 she had grown weary of “nameless, faceless accusers” but did not anticipate that Clark might be affiliated with any of these individuals. Then in early autumn, she began to notice private comments Clark had made to her appearing in the campaign literature of opposition groups.38
Bird, like Tobriner, denied that Tanner or any other case had been intentionally delayed. The court was juggling dozens of cases during the summer and fall of 1978. Only a single justice had completed work on Tanner by Election Day, she said, though she did not specify which one. She had no idea that the case would prove controversial until she began reading newspaper accounts and learned of Clark’s decision to include a reference to Caudillo, first in a footnote to his Tanner dissent, then in the dissent itself.39
She believed that Clark, his staff attorney Richard Morris, or both men sought to use the reference to embarrass her. Several times, she said she had decided to “call them on it.” Asked what she meant by this term, Bird said she wanted to respond to what she believed to be a continuing effort to demean her in the eyes of the public. She felt justified, she said, because the Caudillo and Tanner cases dealt with completely different issues, though her explanation might have seemed like splitting hairs to nonlawyers. Caudillo dealt with sentencing, she said, while Tanner dealt with adjudication, or the determination of punishment.40
At some point after learning that the dissent mentioned her by name, Bird sent her staff attorney Scott Sugarman to talk to Morris. If Sugarman did not get a “reasonable” explanation for the pointed comment, Bird instructed him to ask whether the dissent was designed to embarrass her politically.41 Bird’s decision to approach Morris, rather than Clark, followed from her assumption that Morris had actually written the dissent in question.
Rumor had it that Clark seldom, if ever, penned his own opinions—in fact, some in the legal community believed that justices in general leaned heavily on staff attorneys for more than just preliminary work on cases. Bird had lent credence to this notion by openly criticizing the purported practice in her early days as chief justice. Her decision to send Sugarman to talk to Morris can be viewed in some sense as a power play, designed to put Clark and Morris on notice that she knew her esteemed colleague had not authored the opinion that bore his name.
But Clark made a power play of his own, apparently informing his colleagues and staff that Bird personally had demanded that he remove the Caudillo reference. In her testimony to the commission, Bird labeled this claim entirely false. She had never asked him to remove the citation; that conversation had taken place between their two staff members, she testified. She admitted being “pretty annoyed” by Clark’s allegation.42
By October 1978 Clark and Bird were barely on speaking terms. A few days after Evelle Younger’s speech accusing the court of holding up Tanner, Bird and Clark finally met face to face to try to iron out their differences. Bird brought along her chief aide, Stephen Buehl, to take notes, and she relied on the notes for her testimony. Clark offered to drop the Caudillo reference if she joined Tobriner’s majority opinion, joined his dissent, or simply concurred without comment. She refused, and the conversation degenerated from there, with both justices accusing each other of bad behavior.
“I never asked you to remove anything,” Bird said. “No you did not,” Clark admitted, “but this really is not important.” Bird disagreed: “It’s important to me.” Clark shifted to the contention that cases had been held up. “I have had calls from the press. I got a call in the last hour.” After Bird accused him of giving confidential information to reporters, Clark accused her of being “overly sensitive to the press.” Besides, he was often misquoted, he said. When Bird asked if he tried to correct misperceptions and wrong information, Clark replied, “No.” If he confronted every journalist over mistakes, he would have time for little else.43
Clark had made the same suggestion to Bird that he had made to Tobriner: “Maybe the case should not be gotten out until after November.” Bird had replied: “No, it goes out when it’s ready to be filed—no earlier and no later.” Asked by commissioners whether she viewed Clark’s dissent in terms of her election, Bird said she did not. “I didn’t know what Justice Clark’s or Mr. Morris’s motivation was,” she said. “I was more concerned about how I was going to keep dealing with Mr. Clark.”44
Clark also spent five days testifying. Commissioners had been fairly gentle in their treatment of Tobriner and somewhat more probing and skeptical with Bird. Clark proved a frustrating and slippery witness, sometimes drawing incredulous queries. He was friendly and engaging but had a tendency to refer to himself in the third person and to express puzzlement when asked about his actions and motives. For example, he denied trying to embarrass Bird with an explicit reference to Caudillo in his Tanner dissent. He was simply trying to get her attention, he testified. At least one commissioner reacted with dismay. Did Clark not realize that such an action might embolden Bird’s opponents? Not at first, Clark said, but later he understood the implications. Nonetheless, he could not know why Bird saw his dissent as politically motivated.45
Clark also acknowledged talking to other justices and their staffs about his dispute with Bird, and trying to garner their support for including the Caudillo reference in his dissent. In his telling, most of his colleagues agreed with him. Clark also complained about perceived snubs from Bird. “My attempts to even get into pleasantries failed.” Once, Clark told commissioners, Morris ran into Bird in a courthouse elevator, and she turned the other way. When he “went into her chambers for Wednesday conferences, there was no acknowledgement.” Bird also ignored his staff members and failed to give his secretary a promised piece of carpet, Clark said. “It may seem petty now. It seemed awfully important to us all at that time.”
At one point, Clark went to Mosk for advice. Mosk suggested he talk to Tobriner, who was not sympathetic. Instead, he suggested that Clark remove the contested citation. It was then, Clark acknowledged, that he had suggested holding the Tanner decision until after the election. His motives were entirely pure, he insisted. They were also pure when he made this same suggestion to Bird. At least one commissioner expressed skepticism. “Didn’t you realize that if Justice Tobriner or the chief justice were to rise to that bait, they might be stepping into the very trap that [opponents] had [set] earlier?” commissioner Hillel Chodos asked.46
Clark denied speaking to friends outside of the court about the internal conflicts in general and about the Tanner case in particular. He admitted talking to Edwin Meese in September 1978, just about the time Meese’s article alleging the Tanner holdup appeared in the Daily Journal newspaper, he said, but he insisted that he never discussed the case. Besides, he added, Meese had other friends on the court besides himself.47
When the commission moved on to discussing the Los Angeles Times story alleging intentional delay, Clark acknowledged having spoken to reporter Robert Fairbanks three times the day before the November 7 election, but he denied that he had confirmed allegations about the Tanner holdup. “In hindsight, I can understand that good reporters—and these are good reporters—could interpret what they had heard that day and perhaps report in conscience that justices had confirmed [the information].” He continued, “But I looked upon it, and do now, as being something they felt they were confirming, but it wasn’t necessarily so from those they were talking to.”48
He also admitted speaking on Election Day morning to K. Connie Kang of the San Francisco Examiner. Clark recalled Kang phoning him after her editor awakened her to say that he wanted a follow-up to the Times story. In Clark’s recollection, she asked: “Is it true?” He declined to comment. She asked if he had been one of the justices quoted. “I certainly hope not,” he had responded.49
For many journalists, revelations of justices’ relationships and personalities trumped the nuts-and-bolts testimony about how the court operated in general. The testimony of Bird and Clark gave them more than they could have hoped for in this vein. Los Angeles Times reporter Bella Stumbo described the scene “inside the auditorium at Golden Gate University [where] Supreme Court justices and their attorneys and staffs continued . . . to treat each other like liars and backstabbers and possible thieves.”50
As Lou Cannon of the Washington Post saw it, the hearings revealed the California Supreme Court to be “a seething cauldron of fear, suspicion, political hostility and petty jealousy. . . . So far, the investigation . . . has proved much less, and revealed much more, than critics have alleged.” And San Diego Union reporter Margaret Warner portrayed the hearings as “closer to a family saga novel than a whodunit mystery. . . . Unraveling before the commissioners is a story about loyalty and suspicion, confidence and fear.”51
Court personnel also kept close tabs on the hearings. “We all brought radios to work and turned [them] on in our offices,” Staff attorney Peter J. Belton recalled. “You could walk down the hall and never miss a word.”52 Meanwhile, outside the hearing room, Golden Gate University law students manned the information desk. Having grown up in a jaded and cynical age in the aftermath of Vietnam and Watergate, they had little interest in the “circus” inside, they informed reporters. One wore a T-shirt bearing the words “The Bird is the Word—Drink Wild Turkey.” Another called the hearings “hypocritical,” adding: “Most judges are political hacks, that’s how they get their jobs in the first place. Courts have been political since Day One, and everybody knows it.”53
The circus soon folded up its tent. Reporters packed up their notebooks, microphones, and cameras; the law students moved on to other pursuits. Clark’s was to be the last testimony open to the public. Subsequently, witnesses would only testify in private. The immediate catalyst was Clark’s discussion of a purported conversation between himself and Mosk. According to Clark, Mosk had mentioned visiting Tobriner’s chambers before the election to warn Tobriner that “it was obvious cases were being held for filing until after election, and if it were later revealed, [Tobriner] would have to pay the consequences.”54
So far, Mosk had avoided getting dragged into the morass of accusations playing out before the public. For weeks, Clark, Tobriner, and Bird had been the featured players. Clark’s testimony shifted the spotlight to Mosk, who obviously would be asked about the alleged conversation, among other topics, including whether he had divulged confidential information to reporters. From the beginning, Mosk had argued against open hearings as unconstitutional and “devastating” to the future ability of justices to work together “as a collegial body.” The day after Clark’s revelation, Mosk filed a lawsuit to close the proceedings. Richard Mosk offered assurances “that his father would be happy to appear before the commission privately,” but he would not testify in public.55
Thus began a tug-of-war that took three months and enveloped three courts, including the state supreme court. After a superior court judge ruled against Mosk and an appellate court ruled for him, the case landed in the lap of the same state supreme court whose members were mired in the hearings. Six justices immediately recused themselves; six appeals court judges replaced them. Only Newman refused to step aside, declaring that he was perfectly capable of deciding the merits of the lawsuit, despite his involvement in it. Eventually, the ad hoc court disqualified Newman and replaced him with another temporary justice. In October the ad hoc high court ruled in favor of Mosk.56
By that time, testimony was virtually complete. As commissioners awaited a final verdict on Mosk’s suit, the three remaining justices testified behind closed doors. Mosk denied ever warning Tobriner about holding up cases, or telling Clark about any such conversation. Clark was wrong, he said. Besides, “I would not talk to Justice Tobriner that way.” Mosk added that he had no knowledge of any case being held up pending the November 1978 election and denied that he had been a source for the Los Angeles Times. He spoke twice with William Endicott, he said, but never replied with anything more specific than “no comment.”
Mosk said he had been less concerned about Tanner than with another case, Fox v. City of Los Angeles. It had nothing to do with elections but with “sensitivity.” Fox focused on a dispute between residents and officials about an illuminated cross erected at City Hall during the Christmas and Easter holidays. Plaintiffs argued that such a display privileged Christianity over other religions. The case had been argued more than a year earlier, and the critics who charged the court with holding up Tanner made the same accusation about Fox.57
Bird had assigned Newman to write the lead opinion, and he was proceeding at an agonizingly slow pace. Since he had been Bird’s law school professor at Boalt, she was reluctant to prod him. “I was a good deal younger,” she testified. But she had an additional problem, she said. Newman “had very firm views about how we ought to reform the way we write opinions. . . . His view was that we needed to add a more modern style of writing.” This approach engendered “natural resistance” in other justices and slowed down the process of completing opinions.58
Mosk feared that releasing Fox too close to the 1978 Christmas holiday might make justices appear “insensitive” to people’s religious beliefs. When he voiced his concern to Bird, she expressed irritation. The decision, she said, “was not going to go out on Christmas Day. It was not going to go out on New Year’s Eve. It was not going to go out on New Year’s Day. . . . It was going out no sooner and no later than when it was ready.” That turned out to be December 15, 1978. In a 5–2 ruling, justices agreed with plaintiffs; the city had to remove the cross.59
With Mosk’s testimony complete, only Manuel and Newman remained. Manuel’s appearance took only two hours. His dissent in Tanner had been blamed for holding up the opinion; it came at the end, after all the other justices had weighed in. Since it seemed to replicate Clark’s dissent, critics of Bird had suggested that either she or Tobriner, perhaps both, had asked Manuel to write a separate dissent to slow the process. Manuel vehemently denied the allegation. The decision was his own, he said.
He disagreed with Tobriner’s majority opinion but also with Clark’s reference to Bird and Caudillo. And he “had strong feelings on the matter. He considered both Bird and Clark to be his friends.” He wanted everyone to get along but saw Clark’s dissent as “legally inappropriate” and “part of a running series of attacks on the Chief and on the court.”60 The final justice, Newman, offered no new information and claimed that his comments and conversations with colleagues were privileged information.
In early November 1979, exactly a year after the election that had fueled allegations of judicial impropriety, the hearings limped to a close. The commission, having heard testimony for five months, unanimously found insufficient evidence to charge anyone with wrongdoing. But members could not divulge how they had come to this conclusion, since Mosk’s successful lawsuit barred them from commenting on any aspect of the investigation or its findings. The final bill for the proceedings: $510,000. Much of the money went to Seth Hufstedler and his law firm. In the end, virtually no one emerged unscathed.61
Bird was relieved by the outcome but under no illusion that it would end debate or shift the harsh glare of media and public attention away from the court. In an interview with the New York Times, she said that, from the beginning, she had “harbored no illusions that the job would be easy.” But she “had no idea it would be the kind of warfare it has been.” She blamed gender, her outsider status, and efforts of “right-wing groups to politicize the bench” for the conflict.
“I was a woman being placed at the head of an aristocratic body, a kind of priesthood.” She denied allegations that her arrival had fueled a new level of acrimony at the court. Personality clashes had always existed, she said, but justices used to be viewed as “larger than life individuals. To say the present court is not collegial, that’s nonsense. It’s no different than it was.”62
In a speech before the National Association of Women Judges, Bird elaborated on the role gender played in her troubles, or at least her perception of its role. “These are unkind and fearful times,” she said. “The anger felt toward minorities and women in our society in general can be seized upon at election time and turned against judges who happen to be minorities or women. They are the least able to protect and defend themselves from criticism and attack.” Though progress had been made, “we still have some distance to go before women are fully accepted as partners in the judicial enterprise.”63
As Bird had predicted, the end of the hearings did not bring an end to the controversy. “Because we weren’t able to explain our action . . . I see no reason [why] the public should accept the result [of the investigation],” said commission member Thomas Willoughby. Court critics soon pounced. “We said in the beginning this was going to be a whitewash,” said Earl Huntting, president of the Oakland-based Citizens for Law and Order. “And that’s just what it turned out to be.”64
How one came to view the hearings and their outcome seemed directly related to how one viewed Chief Justice Rose Bird. Within four years, two books focused solely on the hearings appeared. The first was authored by Bird’s former Boalt Hall law professor Preble Stolz. Judging Judges: The Investigation of Rose Bird and the California Supreme Court was published in 1981. Stolz took a stab at objectivity but placed most of the blame on Bird. According to Stolz, “a successful Supreme Court justice must have . . . a genuine respect for the views of others, combined with an instinct for finding the core issue that divides; a capacity to find solutions that accommodate seemingly conflicting principles, a desire to participate in the give-and-take of controversy without accumulating grudges; and finally, the ability to lead and inspire a small bureaucratic team.”
Bird possessed few of these traits, felt Stolz. Instead, she was humorless, thin-skinned, and a poor administrator. But the book also featured a foreword by Anthony Lewis, the New York Times legal affairs reporter, who took strong exception to Stolz’s analysis. He saw Clark as the main culprit.65 As if to reinforce Stolz’s depiction of her as thin-skinned, Bird contacted the book publisher and asked for changes, though it was unclear what alterations she sought. Stolz accused her of trying to “bully and frighten my publisher.”66
Some observers wondered why Stolz would write such a book. Had Bird somehow antagonized him at Boalt? Stolz claimed not to recall her as a student; perhaps she failed to attend class, he joked. But Stolz had had a short, unhappy stint working as the director of Planning and Research in Jerry Brown’s administration, where he crossed paths with Bird. And Brown subsequently rebuffed his efforts to gain a judicial appointment.
In 1983 journalist Betty Medsger’s book Framed: The New Right Attack on Chief Justice Rose Bird and the Courts covered essentially the same ground but from Bird’s perspective. As its title indicates, Medsger saw the controversy over Tanner as part of a concerted effort by conservatives to capture the courts by fueling voter outrage about activist “liberal” judges. Clark, according to Medsger, was a pawn in this effort. “California has been the scene of an ominous dress rehearsal,” Medsger declared on the first page of her book. “Since 1978 the New Right has been refining its plan to revolutionize the nation’s courts by attacking the California courts.”
Rose Bird’s gender made her an attractive target, Medsger wrote. “The loss of the Chief Justice’s chair to Bird probably angered the old boys’ network more than any appointment, judicial or otherwise, that Brown made as governor.”67 Medsger’s book also featured a preface by writer Richard Reeves, who blamed H. L. Richardson for the mess. “We’re not playing patty-cake,” Reeves quoted Richardson as saying. “We’re talking about the ideological direction of the court, and we’ve got to grab people’s attention with tough talk.” Medsger, like Stolz, had a personal connection to Bird. She was married to appellate judge John Racanelli, the commission member who had recused himself.68
Most people in California and elsewhere soon forgot about the hearings. By 1983 all but two of the justices caught up in the controversy had retired; only Bird and Mosk remained. They would never exactly be friends, but their enmity had diminished significantly. Both Manuel and Clark retired in 1981. Tobriner and Richardson retired in 1982. Tobriner left the court in January and died just three months later; the hearings had devastated him. The retirements gave Brown four new appointments. All of them were men, though two were minorities. And all had significant judicial experience.
Otto Kaus had been an appellate judge in Los Angeles. He favored lifetime tenure for state high court justices. As he told a reporter, being targeted over judicial rulings was “like having a crocodile in your bathtub.” Allen Broussard was the court’s second African American. In the 1950s, he had clerked for Associate Justice Raymond Peters and had served for two decades as a judge in Alameda County. Cruz Reynoso became the court’s first Latino justice. He had been a civil rights lawyer, director of California Rural Legal Assistance, and an appellate judge. Joseph Grodin, Mathew Tobriner’s longtime friend, had been an appellate judge and also held a PhD from the London School of Economics.
Frank Newman waited until 1983 to retire and return to UC Berkeley. Academics better suited his deliberative nature, he said. By that time, George Deukmejian, author of the “use a gun” law, had become governor; Newman’s departure gave Deukmejian the first of what would be eight appointments to the state’s highest court. Much later, Newman recalled the hearings as “a miserable period of, what was it, ten months?” He blamed the media and special counsel Seth Hufstedler for most of the problems. “The press was so terrible that people felt they had to protect, first themselves, then the court. Not everyone protected the other members.” He characterized Hufstedler as a publicity seeker who “dominated the others far too much.” The result was “a kangaroo court,” Newman said. “It all had a terrible impact.”69
When the hearings ended, few could have predicted that they would be a game changer. For decades the California Supreme Court had plowed new ground in cases involving civil rights and personal liberties. Conservatives and even some moderates might have groused among themselves, but justices, as Rose Bird acknowledged, had been viewed as “larger than life individuals.” No longer. “In a sense, the justices have come down from Olympian heights to mingle with mere mortals,” one state official told a reporter.70 Another writer feared, he said, that the hearings had opened the door to the “emergence of the political judiciary,” something that began to play out over the next few months and years.71
George Deukmejian was not a firebrand like H. L. Richardson, but he too had made “law and order” the pivotal issue in his long political career. In the early 1960s, as civil libertarians gained traction in the legislature and courts, Deukmejian had railed against criminals and soft-on-crime lawmakers and judges. He had authored the “use a gun” law and death penalty legislation that was still pending when Bird became chief justice. Six years later, the legislation was in place and yet no executions had occurred. Deukmejian thought he knew whom to blame: Bird. She had endured a bruising confirmation, a rocky beginning at the court, and a devastating set of hearings; her real ordeal was just beginning.