Rose Bird was speaking to a group in Los Angeles in late 1985 when she noticed a man wearing a trench coat enter the room from a side door. He carried a small bag “and some kind of bulky object” beneath the coat. Since the temperature in the packed room hovered near 90 degrees, she became somewhat alarmed, particularly as she watched the man move along the wall toward her. “For one split moment, well it goes through your mind that this could be possibly the last time that you would speak.” There turned out to be no threat, but Bird could be forgiven for seeing trouble at every turn. As the years passed, she had received more and more death threats, and they had rattled her to the extent that she had moved her elderly mother out of the Palo Alto home they had long shared.1
At one point, Bird began receiving batches of what would become several thousand postcards bearing scrawled messages calling her a “Black-Robed pervert,” “lousy criminal lover,” “mistress of [African American state assembly speaker] Willie Brown.” Some warned the chief justice to “watch out” or said the writer hoped that she would be raped or die. She also received envelopes containing bullets. The effort obviously was designed to intimidate and had been organized by an anti-Bird group, though none took credit. Some part of her must have wondered whether her job was worth fighting for, given the immense personal costs and the probability—growing greater every day, it seemed—that she faced ignominious defeat at the polls in November 1986. If she had these thoughts, however, she kept them to herself.2
A year before the election, the campaign against Bird had expanded far beyond its ultraconservative origins, though individuals such as H. L. Richardson continued to make waves and headlines. Several organizations led the effort to oust her. Two were run by high-priced political consultants based in Southern California.
Bill Roberts headed Crime Victims for Court Reform. Originally a partner in the firm Spencer-Roberts and former campaign manager for Presidents Ronald Reagan and Gerald Ford, as well as Governor George Deukmejian, by 1985 he had his own firm, the Dolphin Group.
Roberts’s strategy was to put crime victims and their families front and center. Murdered toddler Amy Sue Seitz undoubtedly proved to be Roberts’s strongest weapon. Advertising spots featured photos of the little girl posing in front of flowering trees, wearing pigtails tied in ribbons and a ruffled pink dress. Viewers could not help but juxtapose the sunny photos to her brutal end at the hands of a recidivist sex offender.3
Californians to Defeat Rose Bird purported to be a grassroots organization, led by Howard Jarvis and Paul Gann, the two men most identified with Proposition 13; Orange County Republican lawmaker Ross Johnson; and former Los Angeles police chief Ed Davis. But Butcher-Forde, an Orange County consulting firm, organized and ran the campaign. Their primary emphasis was building a fundraising juggernaut using direct mail solicitations that started with individuals who had donated money to previous anti-Bird efforts and expanded from there.
Stu Mollrich of Butcher-Forde said the company sought to “build credibility” by demonstrating that “there are a lot of people . . . willing to express their feelings. . . . If you’ve heard directly from someone, you’re more likely to take what they have to say seriously.” The company sent letters signed by Jarvis and Gann to potential donors. “Thank you for helping to build the largest citizens’ organization in the history of California,” read one. Ignoring solicitations did not mean a recipient was scratched off the list, however; the consultants simply changed their tactics. “Have you had a sudden change of heart?” they wrote to one former donor. Further silence might garner an additional letter warning that “a dangerous killer may be let out of prison, free to roam the streets . . . unless you act immediately.”4
By late 1985 smaller groups had joined the anti-Bird effort as well. One, made up of conservative activists, called itself the Bird Watchers Society. Lawyers at O’Melveny and Myers, a leading California firm specializing in corporate clients, also opposed her, based largely on her rulings in civil cases. The firm had helped to create the so-called white paper often cited by Governor Deukmejian and others as evidence that Bird was “antibusiness.”5
Nearly nine years after her confirmation, her opponents had thoroughly succeeded in shaping her public image as an “extremist,” “judicial activist,” and an all-around unsympathetic individual. Furthermore, they had made her an issue in virtually all Democratic campaigns for 1986. Explicit or even tacit support for Bird could get one immediately targeted by Republican candidates and media consultants, whose accusations were then picked up by reporters and inserted into news stories carried widely in newspapers and television broadcasts throughout the state. Republican senatorial candidate Ed Zschau linked his opponent, Democratic senator Alan Cranston, to Bird at every campaign stop. “It’s hard to tell the difference between the two,” Zschau said. “They both ignore the will of the people and they both oppose the death penalty.”6
Some Democrats quietly hoped that Bird would resign from office. Not surprisingly, many candidates—including Los Angeles mayor Tom Bradley, running for a second time against George Deukmejian for governor—remained mute in the face of nearly constant queries. Other Democratic leaders, such as San Francisco mayor Dianne Feinstein, who planned to run for governor in a few years, declined invitations to fundraisers for Bird. Barry Keene, a Democratic state senator, said he “was probably the only Democrat in a contestable district up for election” who openly supported Bird and her two colleagues. “There were billboards up and down Highway 80 and up and down [Highway] 101 saying, ‘Barry Keene Supports Rose Bird.’” The support did not hurt him politically, however.7
Yet, in the face of unrelenting attacks, Bird chose to forge ahead without the services of paid consultants. From a distance of thirty years, it is impossible to know whether she really was as naïve as she seemed, whether her lifelong distrust of situations she could not control made it impossible for her to put her destiny in someone else’s hands, or if her rock-solid principles made compromise impossible no matter what the consequences. Bill Zimmerman, the consultant she had hired and then fired, insisted that she wanted to win, and badly. “Few candidates I’ve met wanted to win more. It was precisely her desire to win that led her to insist on personal control over every aspect of the campaign.”8
Zimmerman, along with many others, saw Bird’s decision as thoughtless as well as foolhardy, since it also adversely impacted two other justices—Joseph Grodin and Cruz Reynoso—but it was decidedly in character. Despite her status and power, she remained at heart a loner. As one journalist put it, “The most enduring image of Rose Elizabeth Bird is that of a woman alone—the plucky schoolgirl pedaling long miles to school in the rain; the teen-age idealist working for Adlai Stevenson . . . the legal ingénue defending accused rapists and murderers . . . the recluse of the Brown Administration who worked late, skipped the Sacramento parties and went home to her mother.”9
Bird always insisted that she wanted to remain “above politics,” but the fact that she had to run for periodic retention made her office innately political. Additionally, in the two decades following her graduation from law school, the definition of politics had expanded to encompass virtually every facet of life having to do with power relationships, even those deemed personal and private.10 Every judicial ruling produced a winner and a loser, thus every ruling was political by definition. And at the dawn of the era of 24-7 news, “politics” had come to assume an outsize significance in public discourse.
Bird did have strong partisans who cared for her personally and worked on her behalf. On the personal level, she had close friends and longtime aide Stephen Buehl. As death threats increased against his boss, he took karate lessons and accompanied her virtually everywhere. A decade younger than Bird, he also kept her apprised of popular music trends, lending her albums by Bruce Springsteen, Joni Mitchell, and Elvis Costello; she sometimes made reference to pop lyrics in her speeches.11
A campaign organization, Committee to Conserve the Courts, headed by state bar president Anthony Murray, raised money and sought out prominent surrogates to publicly confront critics. Bird also had a spokesperson, Steven Glazer, a former advisor to Jerry Brown. Glazer arranged appearances and interviews and issued press statements that had been vetted by Bird. Surrogates included actors Warren Beatty and James Garner; television producer Norman Lear; women’s groups, including California Women Lawyers; and prominent trial lawyers, including San Francisco attorney Melvin Belli. Bird’s surrogates charged opponents with being “overtly partisan” and using scare tactics to subvert justice.12
They also expressed fear at what such an unprecedented and destructive campaign might mean for judges across the country. Would the judiciary itself become a permanent ideological battleground? At one fund-raising dinner, Beatty told his audience: “If we let the far right prevail here in California . . . they are going to push to apply a political and ideological litmus test to judges all over the country. Their dream is freedom’s nightmare.”13
Former governor Jerry Brown also weighed in. He had spent much of his postpolitical life traveling, volunteering, and working in the slums of India with Mother Teresa. He warned against using emotion in voting for or against judges. “The issues raised by electoral confirmation or rejection of Supreme Court justices involves more than politics and the fate of a few judges. At stake is a choice about fundamental principles and the kind of government we want. How independent should our judiciary be? And how much should the power of the state be constrained in the pursuit of justice? . . . Our heritage sees in judicial independence an ingenious method of limiting the natural tendency of governmental power.”14
To Bird supporters, the future of an independent judiciary was the most crucial issue of the election season. Every statewide official in California would appear on the November 1986 ballot, but Bird would receive virtually all of the attention. “Move over Governor Deukmejian. Step aside Senator Cranston. Your reelection campaigns are important, sure,” wrote Richard Bergholz in the magazine California Journal. “But for long-term historical significance, nothing can match the battle for control of the state Supreme Court.
“It’s an election battle like you’ve never seen before,” Bergholz added, “far beyond the usual judicial confirmation contest tucked far down on the ballot.”15 As Pat Nolan, Republican leader of the state assembly put it, “Every eight to ten years an issue comes along that so focuses the public’s attention that all other issues become secondary.” In 1986 the vote to confirm or defeat Rose Bird would be that issue.16
Obviously, Bird had to become actively engaged in her own campaign if she had any hope of winning retention. Specifically, she needed to make herself available to reporters for general interest publications, her best chance to reach voters. Yet, “I’ve never seen a public official or candidate so reluctant to be interviewed or so suspicious of the motivation of reporters,” said her former consultant Zimmerman.17 But one sympathetic reporter said she could understand Bird’s extreme wariness. Ever since her appointment, “she has been treated as some sort of freak show.”18
In late November 1985 Bird decided to approach journalists on her own terms and turf. A press conference might have been the best approach, with reporters from all over the state and perhaps beyond showing up at a specific time and place to ask questions. Bird chose instead to handpick eight news outlets and give back-to-back one-hour interviews with individual reporters in her court chambers. Trouble started even before the interviews began. Representatives for publications not selected expressed outrage; her choices seemed arbitrary. For example, she had invited the San Francisco Examiner but not the San Jose Mercury-News, arguably a larger and more influential paper.
The interviews failed to soften her image; in fact, they might have had the opposite effect. Dan Morain of the Los Angeles Times recalled his hour with Bird as “grueling.” She began by describing the court as “an incredible institution, taking the beating we have over and over again. . . . It is incredible what this court has been able to withstand.” She criticized the media for focusing on “frivolous” issues, such as her “hairdo, the way I walk, the way I dress,” and for turning death penalty rulings into “a grisly body count.”
She blamed her troubles on the right wing, led by “bully-boys” such as President Reagan’s attorney general Edwin Meese. “Why do we have to have Eddie Meeses all over here? He doesn’t have a corner on the truth.” She also refuted the notion that she might resign to save the jobs of Grodin and Reynoso. “You know what they will do if you turn tail and run?” she asked. “They will beat up everyone else until they get every single seat they want.”19
Bob Egelko of the Associated Press said his “biggest frustration . . . was that . . . there wasn’t one minute of dialogue. She talked at me and sometimes shouted at me for the better part of an hour. I came out of there shaken.” Afterward, Bird expressed regret at the way she had handled the interviews. “I should have phrased [the answers] more precisely and less personally,” she admitted.20
She subsequently gave a few interviews to news outlets she viewed as supportive, such as San Francisco Focus, a publication affiliated with that city’s public television station KQED. She predicted large numbers of executions in California should she, Grodin, and Reynoso be defeated. Again, she blamed “the far right” for her predicament. This time she focused on Moral Majority leader Jerry Falwell and conservative activist Richard Viguerie, “[who] have made me their prime target, nationally. And they must see somehow in my defeat a way in which to turn around this society to be the kind of society where their views will be the only ones accepted.”21
She accused her opponents of exploiting the families of crime victims and criticized the media for shallow and superficial coverage. “It’s very hard to talk in terms of substance in an age where everybody’s focus is on personality. I mean, if I want to get a front-page story, I could go out and cut my hair. But if I want to talk about the middle class being priced out of the system I can’t get the newspapers to cover it at all.” Some reporters and readers must have pondered why she had so dramatically altered her appearance and then expected the transformation to go unmentioned. And at least a few opponents must have wondered whether they needed to bother raising money and campaigning to defeat Bird, since she seemed perfectly capable of irritating and alienating voters herself.22
Polls taken at the end of 1985 showed 48 percent of respondents opposing her retention and 35 percent favoring it, with 17 percent undecided. Her numbers had slipped significantly from February 1985, when 35 percent viewed her negatively, 30 percent positively, and 35 percent were undecided. Voters had a somewhat better opinion at this point of associate justices Grodin and Reynoso. Grodin had support from 35 percent of potential voters, while 15 percent said they opposed his retention. But 50 percent said they could go either way. Reynoso faced opposition from 32 percent of respondents, while 23 percent said they favored his retention and 45 percent were undecided. Stanley Mosk had waited until the last minute to announce that he planned to seek reconfirmation. Polling showed him running far ahead of his liberal colleagues, and court critics said they planned to drop any effort to defeat him.23
Her dismal numbers rattled Bird, who expressed regret in early 1986 over her sometimes “inartful” comments and her inability to connect with journalists and with ordinary Californians. She attributed her media troubles to inexperience. At the beginning of her tenure as chief justice she “had no experience with the press at all. I had no press people. My own view was that if you did anything worthwhile, people would eventually see it and write about it.”24
Meanwhile, anti-Bird forces were successfully raising large sums of money, nearly $4 million by February 1986. Contributors included actor Clint Eastwood and Los Angeles newscaster Jerry Dunphy, the father-in-law of Republican lieutenant governor Mike Curb and himself a robbery victim. Major business interests also contributed, including banks, real estate firms, insurance companies, manufacturers, and oil companies. Bird had raised slightly more than $1 million, mostly from trial lawyers, but had spent very little.25
As if Bird needed something else to worry about, in March 1986 People magazine featured her in an article titled “The New Look in Old Maids,” which pegged her chances of ever finding a mate at less than 1 percent. This statistic came from a study by Harvard and Yale researchers that detailed how women’s marriage opportunities dropped precipitously with each passing year. By age thirty there was a decline to 20 percent and by thirty-five to 5 percent. Bird was in good company. Other “old maids” included newscaster Diane Sawyer, actor Diane Keaton, and rock star Linda Ronstadt. Bird told the reporter that she didn’t “take any of these studies seriously. I take each day as it comes.” At forty-nine, she was too old to bear children, but “I would definitely like to adopt a child,” she said.26
The People article might have humanized Bird somewhat, but it also reflected the antifeminist contention that elite female achievers lived in a different universe than “regular” women. And it reinforced Bird’s image as out of the mainstream, since she did not discount the possibility of becoming a single mother. It might have been much more helpful to her cause if a mass-circulation magazine had run a story on how she had contacted a stranger—the friend of a friend—suffering from cancer. “If you ever need someone to talk to,” Bird had told the woman, “just call.”27
In April 1986 Bird left California and the United States for two weeks to travel to New Zealand and Australia. The trip did not count as a vacation, aides insisted, since in Australia she would be the guest of local officials observing Law Week in Sydney. It is possible, however, to see her departure as an effort to take a break and distance herself from the relentless news coverage.
Seven months before the election, interest in her campaign had spread beyond California. The same month as her trip abroad, the Washington Post had interviewed Bird. Reporter Cynthia Gorney asked her to imagine how a grieving mother might feel about justices who overturned the death sentence of her child’s killer. “You’ve pinpointed the very difficult process that the court has to deal with,” Bird acknowledged. “If the trial has an error in it, our history has told us that what you do is, you don’t release the person. You reverse the [sentence] and it goes back for a proper trial, so that when you put that person behind bars, or when you take that person’s life, you do it with a clear conscience.” She continued in a reflective vein: “You know, you have to read these things. And you can’t turn your face away from them. You have to look at them. And I think it hurts all of us up here to have people truly feel that we don’t feel for them.”28
Even 7,500 miles from home, however, she drew media attention. Australian reporters were decidedly more conciliatory and flattering than their California counterparts. “By any objective assessment, she has conducted herself with wisdom, principle and efficiency,” wrote a Sydney reporter. “Let’s face it,” one Australian lawyer explained, “there’s a lot more interest in her not just because she is a woman judge . . . but because she is a different sort of woman. She makes an effort to look like a woman and not the sort of doddering fossil we tend to think of when we think of lady lawyers.”29
Bird was relaxed and engaging during her trip. “Does your scalp itch?” she asked one bewigged Australian judge. She visited the zoo, museums, and nightclubs. Asked about her campaign, she said: “The most we try to do is keep [opponents] honest on the facts, and they will say what they want anyway.” Asked if she thought she would prevail, Bird said, “Yes, I think so.”30
Her trip abroad angered some California journalists, however. She had arranged to let a Los Angeles Times reporter accompany her and her aides to Australia but had denied requests from other news outlets. A San Diego newspaper sent a reporter anyway; Bird and her retinue limited her access to only the most public events. Chief aide Stephen Buehl explained that the Times had made arrangements far ahead of time, while the San Diego paper had not. His explanation failed to mollify critics.31
Upon her return to California she largely disappeared from public view, though she gave speeches as an invitee of groups in settings that were open only to attendees. And she appeared at private fundraisers. On these occasions, she exhibited wit and a dry sense of humor. After offering serious observations about the court and its battles, she asked the group Women in Business, “How do you like my new hairdo? It is the same style I wore when I was four, but I’m wearing it again to convince the press that I’m really conservative.”32 At one fundraiser, she took the stage following Warren Beatty. She looked the actor up and down and then remarked: “I see how kind Mother Nature was to put such a fine mind on such a fine body.” She quickly apologized to him “for my sexist comment.”33
In the few interviews she gave, however, she often slipped back into the negativity that had characterized most of her conversations with journalists. In one she complained: “If somebody wants to be critical of the way I dress, the way I speak, my personality, all the way up to my decisions, they get front-page coverage.” Not so for substantive issues, she lamented. Ironically, these comments came in a story in which even some critics praised her for improving administration of the courts. One conservative appellate judge lauded her for lifting “the courts of appeal out of cronyism” by implementing “civil-service-type hiring” and increasing the number of staff and librarians.
The story also credited Bird with promoting the California Appellate Project, which paid private attorneys to represent indigent defendants. And it noted how the Judicial Council under Bird’s direction had initiated a procedural change that allowed supreme court justices to weed out all but the most crucial issues in cases appealed from lower courts, as a way to speed up the appellate process.34
In May 1986 CBS Evening News featured Bird’s retention campaign, which, anchor Dan Rather predicted, “could make or break careers far beyond the California judiciary and make judges nationwide think twice about politics, pressures, and principles.” The three-minute piece interspersed stock footage of the court at work with comments from supporters and detractors and short clips of Bird talking about her job and her prospects for retaining her seat. “It will be very difficult,” she conceded. Like many others, correspondent Terry Drinkwater could not resist mentioning Bird’s transformation from “traditional somber robes to plunging necklines.” And he attributed part of her opposition to the fact she was “an outspoken woman in a job usually held by old men.”35
In early summer Bird began writing thirty-second television spots to appear in six of California’s largest media markets. She wanted to craft them herself to make certain, she said, that they were not shallow or mean-spirited. The spots would be filmed in her chambers, which, according to syndicated columnist Ellen Goodman, “held enough plants to fill a health food restaurant.”
In a June 1986 column, Goodman described Bird as “the daughter of a widowed factory owner . . . colorful, complicated, strong-willed and articulate . . . and determined to campaign her own way, as herself. She has modified neither her opinions nor her free-flowing talk about ‘the journey of life,’ language rarely found in judicial chambers.” Supporters had urged Bird to uphold “just one execution,” Goodman noted, but she had refused. Quoting Bird, she wrote that “when judges become one-issue candidates, when they make decisions with one eye on a pressure group and a pollster, this will be a different society.”36
Slightly more than a month later, Bird authored the 4–3 decision that overturned the fifty-sixth death sentence to come before the court during her tenure. The case involved Ronald Smallwood, condemned in 1979. He had been charged with two separate murders, but the trial judge had refused to sever the cases. The jury could not reach a verdict in one case but convicted and condemned Smallwood in the other. The judge’s refusal to separate the cases represented grounds for reversal, Bird wrote. Both Grodin and Reynoso signed on to the decision, but Mosk joined Malcolm Lucas’s dissent.37
Grodin and Reynoso had never faced the same level of scrutiny and hostility that Bird had experienced, but opponents ramped up their criticism as the months wore on and the potential for taking down three justices seemed tantalizingly possible. By late summer they had begun to refer to the trio as “the gang of three,” who voted as a bloc on every significant case. Both men tried to separate themselves from Bird without overtly criticizing her. This proved difficult. “I knew of no way to distance myself from her without doing things that I thought would be wrong and unprincipled,” Grodin said later.
The growing threats led both men—reluctantly—to hire campaign consultants and to raise money, approximately $1 million apiece. They traveled the state, giving interviews and speeches, and appeared in television ads. Reynoso stressed his humble beginnings, which had taken him from summer work as a farm laborer to community college, Pomona, and then Berkeley’s Boalt Hall for law school. He had served in the military and had worked as an attorney, as a law professor, and as director of California Rural Legal Assistance. Grodin didn’t have Reynoso’s up-by-the-bootstraps narrative, but he had an impressive resume, including both a law degree from Boalt and a PhD from the London School of Economics. Both men found it difficult to explain how the court worked in thirty-second spots—“I mean really impossible,” Grodin said. The fact they could not make campaign promises or discuss specific cases made their outreach efforts more difficult.38
Though they did not overtly criticize Bird, both men insisted that they did not march in lockstep with the chief justice. A California Journal study verified this assertion. It examined all of the rulings the state high court had issued in 1984 and 1985—a total of 277 cases. In none of the cases did Bird, Grodin, and Reynoso vote as a bloc without support from at least one other justice. In all but three of the cases, the trio had been joined by at least two other justices.
Reynoso was Bird’s most consistent ally; he had joined her opinions 74 percent of the time in 1984 and 63 percent in 1985. Reynoso agreed most frequently, however, with two “moderate” justices—Otto Kaus and Allen Broussard. Grodin had signed the same opinions as Bird less than half the time, the study found. He more often agreed with the court’s most conservative member, Malcolm Lucas. In fact, Lucas agreed with his fellow justices 70 percent of the time in 1984 and 60 percent in 1985. Most surprisingly, one-quarter of the court’s rulings came on unanimous votes. “It can be stated without equivocation that there is no common front composed of Bird, Reynoso and Grodin,” the study concluded.39
By the end of August, Bird’s television spots were ready to air. She had made five separate ads under the auspices of the Committee to Conserve the Courts. In each, she sat, relaxed at her desk, wearing a blue dress. The camera filmed her from a three-quarters angle. A lamp behind her right shoulder cast a warm glow over the room. Each ad carried its own caption, identifying the topic. They included “Backbone,” “Politicians,” and “Hip Pocket.” For “Backbone,” Bird cited America’s tradition of constitutional guarantees and judges “with back bones” who upheld them. “I’ve been watching some television lately,” she began in “Politicians,” and “you’d think I ran every branch of government. . . . Why are [politicians] so afraid of a chief justice who follows the law?”
She also celebrated the state’s diversity, insisted that no condemned individual had ever been released from death row, and assured viewers that justice was not for sale in California. She signed off each spot with the words, “That’s a California tradition worth keeping.” Campaign spokesperson Glazer noted, “We are raising the level of debate with these commercials,” but polls continued to show Bird losing ground at the end of August with 57 percent planning to vote “no,” 33 percent planning to vote “yes,” and 10 percent still undecided. Grodin and Reynoso had lost ground as well.40
The sinking poll numbers led Stanford law professor Barbara Babcock to muse on the campaign against Bird. Opponents may have portrayed her as “standing between Californians and the death penalty. But for a conviction to be reversed, other justices must join the chief justice.” And not just Reynoso and Grodin; it took four votes to overturn a death sentence. More importantly, according to Babcock, “the chief justice’s opinions in death penalty cases, like her other opinions, are legally creditable. Her main concern has been that no one should be executed if the conviction or death penalty was the result of a serious malfunction in the judicial process.”41
Comments like Babcock’s reflected the success of anti-Bird forces in framing the election as a referendum on the death penalty; in reality, much of the money flowing to campaign coffers came from business interests angry with the court majority for its proplaintiff decisions. New York Times writer Anthony Lewis recognized the court campaign as a potential game changer, setting a precedent for future campaigns to get even nastier via emotional pitches to voters, direct mail, and scare ads.
The attack on Bird, Grodin, and Reynoso, said Lewis, “challenges the whole American tradition of reliance on an independent judiciary to protect the system from abuse of power.” Bird was from the “old school,” and she could not (or would not) adapt to political exigencies that required candidates to be steeped in the use of images and symbols no matter who they were or what office they sought. He quoted Bird’s statement that “courts are an aristocratic institution in a democracy. That’s the dilemma for an institution that has the function of reviewing the will of the people. We’re bound to be ‘anti-majoritarian.’”42
Tom Wicker of the New York Times issued an even blunter warning: “Don’t believe for a moment that the campaign to oust Chief Justice Rose Bird from the California Supreme Court is a spontaneous public uprising. . . . Don’t believe either that the effort . . . is nonpartisan. . . . Don’t believe, finally, that the anti-Bird campaign is about the death penalty. . . . [T]he death penalty is only the trumped up excuse for the anti-Bird campaign—the actual purpose of which is clearly to put a conservative majority on the California Supreme Court.” Federal judges had lifetime appointments, but their Senate confirmations could become more strident and partisan in the future, Lewis predicted.43
With so much on the line, Bird’s allies agonized over her continuing inability to gain traction. By fall, polls consistently showed her with support from only a third of prospective voters. Worse, by this point it seemed likely that she would bring Grodin and Reynoso down with her. Discussing her predicament with Anthony Lewis, she expressed sorrow at that prospect, particularly with regard to Reynoso, whose support had dropped as low as hers, to 33 percent. The “good” news was that 45 percent of those polled said they remained undecided about Reynoso. “It would be a great tragedy if [Reynoso] were defeated,” she said. “He is the only person from the Hispanic community in statewide office. He is a role model. Defeating him would be a clear statement, an ugly statement.”44
Florence Bernstein, a Los Angeles superior court judge, was a longtime friend and associate of Bird. In fact, the chief justice had officiated at Bernstein’s marriage and had appointed her to the Judicial Council and a number of other positions. But Bernstein expressed dismay at Bird’s inability to effectively counter any of her opponents’ arguments. Bird’s “destructive, pathological suspicion” and obsession with exerting “complete control” over every situation had led her “to run an isolated, ineffectual campaign that could have been won had she been willing to accept the help of politically experienced supporters,” Bernstein wrote in a Los Angeles Times essay. Bird responded through Stephen Buehl. “It saddens me that some do not understand that the process by which you attempt to win public office is as important as winning itself. I do not feel comfortable in following a course that stresses the negative [and] that ruthlessly attacks your opponents.”45
In a subsequent letter to the editor, Bernstein insisted that she had not meant to criticize Bird’s work on the court but simply wanted to voice her frustration with the campaign. “She has attempted a statewide campaign without a campaign manager because she is not a ‘manageable’ person; that may be the very quality that makes her a great chief justice.” Other letter writers also praised Bird for remaining above the fray. “It’s not worth destroying your own soul and dishonoring yourself,” wrote one. “It is clear that our chief justice is a judicial officer first, last and foremost, and not a politician. That is to her credit,” wrote another.46
But Bernstein’s point was a valid one. When Bird spoke to groups, she chose only those who already seemed primed to vote for her, such as African American churches and unions. To Los Angeles seniors, she said the election was “about an institution and who’s going to run it. It’s about whether you are going to have judges who are independent or . . . whether you’re going to have sycophants sitting there who have pre-recorded messages inside [telling] them exactly how to vote without ever looking at the issues.”47
By early October Bird seemed resigned to defeat. She traveled the state visiting editorial boards of major newspapers, but the sessions were pro forma affairs, with editors sitting on one side of large conference tables and Bird, Stephen Buehl, and (frequently) campaign spokesperson Glazer sitting on the other side. No one drank the proffered water or coffee. Editors asked predictable questions, and Bird gave predictable answers. During one session, she became animated only when recounting how often reporters published erroneous information about her family. One reporter, for example, had mentioned her father’s abandonment of his family. More than forty years later, she remained sensitive about this event. “My father did not abandon us,” she said. “My parents separated.”48
Meanwhile, her opponents continued pouring on, with new thirty-second spots featuring relatives of murdered children. In one, Marianne Frazier of Huntington Beach sat next to a photo of her smiling, blonde daughter Robin Samsoe as a small music box played softly in the background. Robin had been twelve when Rodney Alcala kidnapped her in 1979. “Robin never got to her ballet class,” Frazier said to the camera, “but the man who kidnapped and killed her is still alive. Rose Bird, Cruz Reynoso, and Joseph Grodin overturned his death sentence as they have for so many brutal killers.” She urged voters to turn all of them out of office.49
George Cullins, the father of another murder victim, traveled the state giving speeches blasting Bird. The killer had not yet gone to trial, but Cullins predicted that “the defendant will never be properly punished.”50 H. L. Richardson acknowledged the cynical strategy of Bird’s opponents when he noted that “the public is . . . simplistic about how it looks at the criminal justice system. They see a guy who murdered somebody and nothing happens to him. They don’t look at the little nuances.”51
By mid-October Bird had become the focus of virtually all political news coverage in California—and much of it beyond. “If I look a little tired,” she told one group of supporters, “it’s because it’s awfully hard to run for governor, lieutenant governor, controller and the U.S. Senate.”52 Even the Times of London weighed in, noting that “barring a miracle,” the chief justice was “about to be booted out of office by the voters. . . . The reason is simple . . . she has failed to execute anyone.” Reporter Deirdre MacDonald noted that the “campaign against her has been a multi-million dollar marathon, masterminded by two key groups rooted in professional political consultancy.”
On the other hand, MacDonald said, the “chief justice’s self defence has been all too dignified.” She, like virtually all other reporters, could not resist commenting on Bird’s looks, describing her as “a tall, extremely handsome woman. She dresses with panache, a flair that falls on the tasteful side of [Dynasty television character] Krystle Carrington. . . . She likes films, exercise, good food, books, people, her country (though she is concerned about it), her work and her job.”53
Deukmejian had made Bird’s defeat the centerpiece of his gubernatorial reelection. Political operatives had linked Bird, Grodin, and Reynoso, but the governor had refrained from publicly announcing his intention to oppose the two men until late in the election season. “A thorough review of the opinions and votes cast by Justices Bird, Grodin and Reynoso on death penalty cases indicates a lack of impartiality and objectivity,” he said in announcing his opposition. He intended to back the three other justices on the ballot, including Mosk. All possessed “sensitivity to the will of the people and the intent of the Constitution,” the governor said. Former governor Pat Brown called Deukmejian’s action “an obvious effort to control the Supreme Court and I think it’s a disgrace.”54
Mosk no doubt was pleased to have the governor’s backing, but he defended the court. He had worked with Bird for nearly a decade and still had a somewhat complicated relationship with the chief justice. Nonetheless, in a speech to the Los Angeles Press Club he said he feared what the bitter battle might portend for the future of the judiciary. Despite critics’ charges about leniency, crime had actually decreased in California, Mosk declared. He blamed the “poorly worded” 1978 Briggs Initiative for many death sentence reversals. “Anyone can qualify an initiative for the ballot, and then have it passed, no matter what it pertains to,” Mosk said, “then we have to straighten it out.”
Mosk also distanced himself from the rough business of campaigning. Together, both sides had raised and spent nearly $10 million. Mosk had been responsible for none of it, he said. His only expense had been for filing papers to run for retention. “I have a non-campaign, with a non-chairman and non-committees,” he said. Since he had solicited no contributions, “my friends will take my calls.”55
Deukmejian’s opposition obviously had an impact. By October a statewide telephone survey of 1,200 voters showed Reynoso’s support slipping to 20 percent, with 26 percent opposing him. Only 21 percent of voters supported Grodin, while 24 percent opposed him. Grodin spokesperson Abby Haight said she was “absolutely surprised” by the poll results. “He can’t be lumped together with Bird on the death penalty; he has voted to affirm seven cases. This just goes to show the opposition isn’t just interested in capital punishment, but political and economic issues as well.”56
Deukmejian’s announced opposition to both Grodin and Reynoso raises some questions. He had targeted Bird since his days as attorney general, and during his many campaign stops around the state he seldom mentioned anyone but Bird. “We need the death penalty, we don’t need Rose Bird,” he intoned in his usual stump speech. Two of the justices on the ballot—Malcolm Lucas and Edward Panelli, who replaced Otto Kaus—had been appointed by Deukmejian, so the governor only needed to convince voters to defeat one justice in addition to Bird to gain a court majority.
Possibly he feared charges of racism if he opposed only Reynoso. Los Angeles Times editorial writer Frank del Olmos, in an essay for the paper, had declared opposition to Reynoso to be “subtle racism. . . . It indirectly suggests that because Reynoso came from a large family of farm workers, he’s not quite as capable as judges from different backgrounds.”57 Deukmejian had voted against Reynoso’s appointment to the supreme court, but as a member of the Commission on Judicial Appointments he had supported Grodin’s appointment to three separate judicial offices, including the supreme court. Thus his opposition represented a distinct change of heart.
The governor was, in fact, sensitive to charges of racism, and may have been seeking to deflect them. Tom Bradley, his Democratic opponent in both 1982 and 1986, was African American. In the waning days of the 1982 campaign, polls showed Bradley leading Deukmejian. Campaign consultant Bill Roberts believed the polls to be inaccurate and raised the specter of a phenomenon that came to be called “the Bradley effect.” Voters might tell pollsters they were “undecided” or planned to vote for minority candidates so as not to appear racist, Roberts said, but in the privacy of the voting booth, many of them ended up voting for the white candidate. Deukmejian fired Roberts for the comment, but in the end he defeated Bradley by a very narrow margin.58
Racial sensitivities may have been a factor in Deukmejian’s decision to oppose Grodin, but gender had long been the elephant in the room. In the months leading up to the election, numerous commentators had made allusions to gender, including Terry Drinkwater of CBS News when he noted that “old men” usually held Bird’s job. Bird only infrequently mentioned it in speeches or talks and then mostly when others directly asked her about it. In one talk to a senior citizens’ group she was asked about gender as a factor in the campaign against her. “We’ve come a long way, but some people in this society still have a difficult time seeing a woman in power. Do you hear people remark about [former U.S. Supreme Court] Chief Justice Warren Burger’s hair? Do people wonder what it would be like to be married to him?” she asked.59
As the long campaign wound down, she became somewhat more forthcoming. As she told one interviewer, “Women in positions of authority are still perceived as vulnerable. And I think that is partly why the focus comes so heavily here.” Perhaps trying to bridge the chasm between herself and “ordinary” women, she sometimes spoke wistfully about how different her life might have been had she made more traditional choices. For example, she regretted not having had a family of her own. “I’ve missed out on that part of life,” she said. “I’m sorry about it, though I think now I would be a much better wife and mother than I would have 20 years ago. I think I am a much more tolerant person.” She also reiterated her interest in adoption.60
In an interview with Ms. magazine just before the election, she let down her guard, revealing—with bitter resignation—how significant a role she actually believed gender had played in all of her troubles, stretching back to the beginning of her tenure as chief justice. “Women have always had to submit at some level to a man. The real problem occurs when you’re a woman who can’t be defined by a man. They use the fact that I’m not married against me because I don’t have to even submit to a husband, what a ‘terrible, terrible sin.’”
Bird had achieved a number of firsts in her life, she said, but she “never really understood what the problems of women are in this society until I came into this office.” She might have fueled some of the problems herself, however. For example, she had insisted that, as head of the Judicial Council, she should be called “chairperson,” rather than “chairman.” And she had refused to back down despite a heated and prolonged debate.
And her refusal to allow reporters access to her personal life also had had a calculated gender component. “If I truly wanted to have an image that would be useful politically,” she told reporter Deidre English, “I’d take you home and have my nieces and nephews there, I’d be baking cookies, I’d have my dogs jumping up and down, I’d have my 82-year-old mother there telling wonderful anecdotes about my childhood. That’s what works in this society right now.”61
Other women also expressed outrage at her treatment. “Rose Elizabeth Bird has become the focus of the California hate campaign,” said a writer for the feminist publication Off Our Backs.
As chief justice of the State Supreme Court, she is the first and only woman to sit on that court. She is personally and politically a feminist. She has spoken out publicly for women’s rights, workers’ rights, an end to racism and a tolerant, diverse society. She has survived sexist challenges to her competence and judicial performance. . . . Now right wing “Bird-Watchers” have targeted Rose Bird. . . . The smears, lies, and sexist belittling have increased. Slogans of “Bye Birdie” mask a concerted attempt to destroy the political independence of justices who have consistently voted for women’s rights.62
The National Organization for Women (NOW) also added its voice, calling the “campaign against Chief Justice Rose Elizabeth Bird an instance of sexism gone rampant.” NOW president Eleanor Smeal called the focus on the death penalty a “smoke screen” covering up the opposition’s real issue—“Bird’s opinions on behalf of women’s, civil and consumer rights.”63
Rose Bird had long refused to directly engage Deukmejian and continuously insisted that she sought “the high road,” but in the final days of the campaign, she took off the gloves. It was too late to save her job, but she hoped she might save her two male colleagues. She had offered money to both from her own campaign treasury, but both had refused to take it. She traveled the state charging Deukmejian with trying to turn “a house of justice into a house of death.” The governor was “ignorant of the way courts are supposed to function in society,” she said. At one stop, she lectured him. “You do not understand at a very fundamental level what our society is all about, what the rule of law is all about and what constitutional government is about.”64
As evidence, she cited a letter that then attorney general Deukmejian had sent Reynoso in 1982 after Jerry Brown nominated Reynoso to the court. The letter asked Reynoso’s views “on a number of cases.” Reynoso had replied that it would be unethical to talk about pending cases, and Deukmejian subsequently voted against him when he appeared before the Commission on Judicial Appointments.
Deukmejian responded angrily to Bird’s criticism. “I am a private citizen just like everyone else. I have a right to vote in this election. I think it’s important that somebody who is in my position tell the people how he intends to vote.”65 Both Grodin and Reynoso distanced themselves from Bird’s remarks. They were “not helpful,” a Grodin spokesperson said. “We don’t talk about the governor,” said Reynoso’s campaign manager.66
In the end, the unrelenting campaign against Rose Bird brought down all three justices. The results were not close for any of them. Bird won only 34 percent of the vote, Reynoso 40 percent, and Grodin 43 percent. Their defeat meant that Deukmejian, who swept to a second term with 62 percent of the vote, had three new court appointments to make, bringing his total to five. Meanwhile, the three justices supported by the governor all won lopsided victories: Malcolm Lucas with 79 percent of the vote, Mosk with 74 percent, and Ed Panelli with 79 percent.
Less than two hours after the polls closed on November 4, as ballots were still being counted, Bird walked into the room where the court heard oral arguments in Los Angeles. For the last time, she took her seat in the center of seven plush, dark-blue chairs to resounding applause from the standing-room-only crowd of supporters. She looked regal as she faced her audience, her blonde hair swept off her face, makeup perfectly in place, wearing a tailored gray dress and dazzling earrings. Her concession speech was both wry and serious; her voice was strong, though it occasionally wavered. She began by addressing “an issue which was raised with me earlier and that I suspect was on the minds of the press as well: How am I taking this? My answer is, ‘just like a man.’”
She thanked the “millions of California voters who voted today to retain the justices of the California Supreme Court and specifically voted for me. . . . I know you believe deeply in the ideal of justice and believe it is possible to have it as an ideal in this day and age. . . . I say to those who voted for us today that although my voice will go silent, yours will not.” Acknowledging that voters were impatient about the pace of death penalty appeals, she said, “I don’t think anybody in this state will sit easy if in fact this becomes a court that ensures nothing but executions to appease the overweening and insatiable appetite of ambitious politicians.”67
Neither Grodin nor Reynoso made public statements, though many others did. Bill Roberts of Crime Victims for Court Reform said, “The public is very unhappy with the judicial system generally. Too much attention has been paid to the needs of the criminals and not enough consideration has been given to victims and the general public.” However, both Grodin and Reynoso had been “in the wrong place at the wrong time,” Roberts acknowledged. He said he hoped Deukmejian would appoint a woman to replace Bird and a Latino to replace Reynoso.68
Californians to Defeat Rose Bird denied that big business had bankrolled the campaign. The organization’s direct mail solicitations had garnered donations from 150,000 people, mostly middle-aged and giving less than one hundred dollars, said spokesperson Stuart Mollrich. Donors were “the kind of people you’d see running an ABC plumbing or an ACE real estate brokerage.”69
Not everyone bought Mollrich’s assertion, particularly since campaign spending reports showed significant contributions from corporate sources, including growers, oil companies, and real estate and insurance interests. “It would be inaccurate, if not naïve, to assert that Bird brought all her troubles on herself,” wrote San Francisco Examiner reporter John Jacobs. “Her liberal rulings angered some of the state’s most powerful business interests, particularly the insurance industry.”70
In a letter to the Los Angeles Times, Catherine Doyle of Los Angeles wrote: “I trust that the people of California who voted against Rose Bird, Cruz Reynoso and Joseph Grodin are satisfied. But how do you explain to all those voters that they were not part of a ‘grass roots’ movement to remove the justices and that it was not the people who instigated the campaign? They were but the pawns of several wealthy industries [that] have much to attain—at the expense of the people.”71
In a press conference, Deukmejian said he was “gratified” by the voters’ decision to oust the three justices. “There is a great need in my view to restore credibility and confidence in the Supreme Court.” He said he would announce Bird’s replacement within a month, though it was no secret that he planned to appoint his old law partner Malcolm Lucas. In early December he did just that, and on February 5, 1987, in San Francisco he swore in Lucas as California’s twenty-sixth chief justice. “The election was a difficult time,” Lucas told his audience, in somewhat of an understatement. “What this court needs is a quiet time to heal itself and reconstitute itself free from political turmoil.”72
Deukmejian had spent nearly a decade stalking Rose Bird, and he would be forever linked with her in the public’s mind. He “really didn’t have a whole lot going for him and would not have had much of a record in eight years” without her, said one fellow Republican. “The legacy of George Deukmejian . . . was going to be strictly [based] on the judicial branch of government. That’s what he wanted. And the circumstances in terms of changing the court . . . it was phenomenal.”73
Soon after Lucas’s swearing-in, the governor named three new justices to fill the court’s remaining vacancies. All were appellate judges appointed to earlier posts either by Deukmejian or by Ronald Reagan. John Arguelles, like Reynoso, was Latino; Marcus Kaufman, like Grodin, was Jewish. But Deukmejian did not immediately name a woman to the court. Instead, he tapped David Eagleson, who had presided over some of the most high-profile criminal trials in Los Angeles County. Grodin and Reynoso soon became law professors—at Hastings Law School in San Francisco and at the University of California, Davis, respectively. It was unclear in early 1987 where Bird would land; rumor had it that she planned to join the law firm of feminist attorney Gloria Allred, but she denied it.
In her last public appearance as chief justice, Bird spoke to a gathering of law school deans in Los Angeles. “We sometimes must stand in the way of the most powerful groups in our society—governments, presidents, governors, legislatures, special interests—in order to do what our oath of office demands of us,” she said. “We are not an institution which can achieve that acceptance by the use of slick public relations gimmicks and entertaining news hooks. We have no way of pandering to the public or pampering the press.” Asked “what the most difficult part about being chief justice” had been, Bird offered a light-hearted response: “I think it’s eating lettuce in front of 1,000 people on a dais. I finally learned how to do it and I lost my job.”74
As the California Supreme Court entered its new, post–Rose Bird era, it remained unclear to what extent the new majority would depart from decades of “liberal,” pro–civil libertarian decisions and whether politicians, campaign consultants, and voters in general would continue to care about its rulings, even on the death penalty, in the absence of its lightning-rod chief justice. More important was the issue of the election’s wider impact. It ultimately had cost nearly $10 million. But was it an anomaly whose success had required a female target possessing thin skin, a hypersensitive, prickly personality, and an unyielding sense of how she believed the law should work? Or, as some pundits had suggested, did it represent the vanguard of a larger movement aimed at challenging the judiciary itself?75