On July 1, 1987, President Ronald Reagan nominated Robert Bork to a seat on the U.S. Supreme Court. If confirmed by the Senate, Bork would replace Associate Justice Lewis Powell, a moderate “consensus builder” appointed in 1971 by Richard Nixon. Announcing Bork’s nomination, Reagan called the sixty-year-old federal appellate justice “a premier constitutional authority. His outstanding intellect and unrivaled scholarly credentials are reflected in his thoughtful examination of the broad, fundamental legal issues of our times.”
Whatever one thought of Bork, he was not generally described as a “consensus builder” but as the author of outspoken and sometimes inflammatory opinions. Edwin Meese, Rose Bird’s nemesis and Reagan’s attorney general, had recommended Bork to Reagan, and journalists predicted he would face “a difficult and prolonged confirmation fight.” However, “his eventual approval does not appear in doubt.”1
Pundits and prognosticators correctly assessed the first part of the equation but got the second part wrong. Bork would face a tempestuous confirmation hearing. He would not, however, serve on the U.S. Supreme Court. Reagan might have depicted him as “thoughtful” and as “a premier constitutional authority,” but liberals viewed him as an “extremist” whose reading of the Constitution was years, even decades, outdated. Opponents cited Bork’s views on race and gender but specifically homed in on the notion of the right to privacy, which sat at the heart of several seminal 1960s and 1970s high court decisions. Bork viewed “privacy” as a legal nonstarter, since the term appeared nowhere in the Constitution.2
Debate began soon after Bork’s nomination, and it reflected the deep cultural divide among Americans, with the judiciary as a touchstone for both sides. Conservatives flooded the Senate Judiciary Committee with letters. “Don’t wait—act now!” Dr. Robert Grant, chairman of a group called Christian Voice, urged lawmakers. “We must return the law of our land to godly foundations while we have a chance.” New York Republican congressman Jack Kemp appealed to his supporters to promote Bork’s nomination by noting that “abortion, school prayer, business regulation, product liability and civil rights plus public health issues brought on by the AIDS epidemic will be settled before the Supreme Court.”3
The New York Times editorial page, on the other hand, offered a long list of objections before noting that “most judges subscribe to . . . judicial restraint. Judge Bork carries the idea to mechanistic extreme.” Harvard University law professor Laurence Tribe claimed that Bork’s “judicial philosophy . . . seriously threatens constitutional values that have proven fundamental to American history.”4
The Senate hearings began in September and carried over into October 1987. Opinion polls tried to gauge public sentiment toward Bork as television networks covered the proceedings. Moderate Republican Robert Packwood met with Bork and then announced his opposition. “I am convinced that Judge Bork . . . will do everything possible to cut and trim, and eliminate if possible, the liberties that the right of privacy protects.” Utah Republican senator Orrin Hatch, meanwhile, called Bork “one of the most qualified and impressive individuals, it seems to me, ever nominated to the Supreme Court.” In the end, the Senate rejected Bork by a vote of 58–42; seventeen Republicans joined with Democrats to defeat the nomination.5
To those closely following the news, the Robert Bork saga, coming less than a year after Rose Bird’s historic election loss, must have seemed like déjà vu: allegations of ideological judges issuing “radical” rulings; judges with prickly, acerbic personalities and thin skins; intensive media coverage of and public interest in what usually was the dull, pro forma process for selecting jurists.
Both battles even featured some of the same players. Ronald Reagan and Edwin Meese had advocated against Bird based on her judicial opinions but castigated opponents of Bork for doing the same thing. Liberals, meanwhile, happily attributed conservatives’ change of heart to hypocrisy, while they shifted gears as well. Voters should not have focused on Bird’s opinions, supporters had declared during her retention campaign. But Bork’s opinions should be held against him. Journalists took note of the similarities. “The parallels made activists of the left and right squirm, but they are unmistakable,” wrote David Broder of the Washington Post. “Bird lost because of the multi-million-dollar direct-mail campaign mounted by her opponents, and if Bork goes down it will be for the same reason.”6
The undeniable similarities made it easy to overlook crucial differences between Bird’s and Bork’s circumstances. Bird’s electoral defeat removed her from the bench. Bork might not sit on the country’s highest court, but he could keep his seat on the Washington DC Court of Appeals, where he enjoyed lifetime tenure. And the defeat of Bird, Joseph Grodin, and Cruz Reynoso at the hands of California voters had been unprecedented.
Historically, most U.S. Supreme Court appointees easily won confirmation. But fifteen Supreme Court hopefuls before Bork had been rejected by the Senate. Richard Nixon saw two of his high court appointees turned down. And Reagan might have had a second nominee rejected if the candidate had not withdrawn first.7 Anthony Kennedy, Reagan’s third choice, sailed through the confirmation process in early 1988. A federal appeals court judge and Sacramento law professor, he was known for his calm, low-key demeanor and moderating influence.8
Bork’s case was different in one way from those of all other rejected federal nominees, however. None of them had experienced the relentless glare of media exposure. Bird’s confirmation had opened the door, it seemed. In a media-saturated age, personalities and perceived temperament had come to play an outsized role in judicial confirmations, which could be “sold” to the public as political theater.9
Bork certainly saw it that way. Four months after his defeat, he resigned his appeals court seat because, he said, he wanted to “speak out without restraint on the process by which Supreme Court nominees are reviewed by the Senate.” He planned to write a book about his experience, he said. He also joined a prominent conservative think tank, American Enterprise Institute, and began traveling the country speaking bitterly about his experience. In one speech to the American Bar Association, Bork called his ordeal “the first national election campaign . . . for control of our legal culture.” Sounding a lot like Bird, Bork warned that efforts to politicize the court “could taint the judiciary,” which needed to preserve its independence.10
To Joseph Grodin, however, Bork’s experiences paled before his own and those of Bird and Reynoso. “The politicization of the Bork campaign and its portent for the future integrity of the judicial branch were small-time compared to the nature and political impact of a full-blown judicial election such as my colleagues and I went through in 1986,” he wrote in his autobiography.11
Early in 1989 Bird and Bork agreed to appear together in a distinguished lecturer series at the University of California, Irvine; the University of California, Davis; and El Camino College. Each received $30,000 for the three appearances. At the sold-out Irvine gathering, Bird presented Bork with flowers, and Bork smiled and bowed in gratitude. If the nearly five thousand attendees expected fireworks, however, they were disappointed. Instead, they were treated to a somewhat cautious exchange. At one point, Bork surprised the audience with the revelation that he favored gun control—or at least it seemed that way.
“I’m not an expert on the Second Amendment,” he said, “but its intent was to guarantee the right of states to form militias, not for individuals to bear arms.” Bird told the audience that “courts are faced with an ever-more complex society that the framers of the Constitution could never have envisioned. . . . Once we get into very rigid viewpoints on any of these issues, we begin to lose the dynamics of what our system is all about.”
Both became animated, however, when discussing their own experiences. “We are now witnessing a war for control of our legal culture, and most particularly for control of our Constitution,” Bork said. Bird blamed her court’s 1983 reapportionment ruling in part for putting a bull’s-eye on judges. “Once there were major decisions in the area of redistricting, politicians realized that they needed sympathetic judges on the bench.”12
By the early 1990s Bird and Bork had become part of the political lexicon, their names used by politicians from both sides of the spectrum. All Republican candidates in California had to do was mention Rose Bird in campaign ads or mailers and Democrats fled as if to escape a swarm of angry bees. Bork, meanwhile, had become a verb. To be “borked” meant that one had reached for and been rejected for high political office.13
Bork may have been bitter, but professionally he had fared much better than Bird. Just after leaving the court, she said that it “felt like being 20 again” with new options and choices ahead. But thirty years had passed since her days as a stellar college student. She had reached the pinnacle of her profession and was on the downhill slope. She soon went into a tailspin both personally and professionally. She found rewarding and remunerative work hard to find. Her notoriety made many legal firms skittish about employing her. “The kind of substantial offers one might expect would be forthcoming to a former chief justice do not seem to be there for her,” said one friend. She thought about writing a book, but literary agents and prospective publishers wanted a gossipy, tell-all rendition of her difficult years at the court; she refused to take this approach.14
A brief foray into television had not worked out either. A month after leaving the court, in February 1987, she made a single appearance on Superior Court, a syndicated series that featured actors as lawyers and litigants and real judges as presiding court officials. Bird appeared during “a weeklong celebration of the Bicentennial of the U.S. Constitution.” Other prominent jurists included former California appeals court judge Bernard Jefferson and Associate Justice Harry Blackmun of the U.S. Supreme Court.15
In early 1988 she agreed to appear as a twice-weekly political commentator on two California affiliates of the national ABC television network. She would provide a “liberal” perspective and act as a counterpoint to conservative pundit and sometime political candidate Bruce Hershensohn. Promotional spots touted her as “the most controversial woman in California,” but her commentaries did not live up to the hype. Her first appearance featured a rhyming commemoration of Japanese internment during World War II:
A day of remembrance, that’s why we’re here
Remember when justice was once ruled by fear?
Remember when freedom was clear[ly] your right?
Provided you proved that your skin was pure white.
A television executive from a competing station called Bird’s debut “bizarre. I think people were pretty stunned.” A news director at another station said, “I’ve never seen a rhyming commentator before. It’s a novel approach.” Bird explained that she had hoped to get her point across without sounding “too harsh to the ear” but said she did not plan future poems.
Her second commentary focused on surviving breast cancer. Other topics included Jesse Jackson’s bid for the presidency and the winner-take-all mentality of the Olympics. Asked about her somewhat offbeat approach to commenting, Bird said she was not an ideologue, despite what her opponents claimed. “My views can’t be particularly categorized, especially today when so many things are in flux. . . . My goal is to get viewers to listen and think about something for a moment.”16
Los Angeles Times television critic Howard Rosenberg lauded her performance. “For one thing, it’s exhilarating to see a female commentator in a field dominated by men,” he wrote. Rosenberg acknowledged that Bird was still somewhat stiff in front of the camera. “Far better a relative TV novice with something to say, than a noodle-minded smoothie who merely sounds and looks good.” But her employer courted controversy and conflict, and after a few months Bird was let go. Considering her strong feelings about the media in general and her obsession with privacy, her foray into television seems an odd choice for a second career.17
She had an additional circumstance that made finding work difficult: caring for her elderly mother. Anne Bird was in her eighties and in failing health. As her mother’s primary caregiver, Rose Bird could not travel far from the San Francisco Bay Area; she taped her television commentaries for both news outlets at the San Francisco affiliate of ABC. She might have accepted an academic appointment, but the university had to be in the Bay Area. For parts of two years she taught constitutional law at Golden Gate University, where she won plaudits from students, but it was only a part-time position. So she mostly remained at home in Palo Alto, gardening, caring for her dogs, making audio tapes of books for blind law students, and taking her mother to medical appointments and to church.
In her last year as chief justice, Bird had earned more than $93,000, but afterward she got by on savings and a pension of about $1,000 a month, plus occasional speaker’s fees. She distanced herself from many former acquaintances and friends with no explanation. “I think the story of Rose Bird is an American tragedy,” said Judge LaDoris Cordell. “I don’t imagine she ever conceived she’d go from the top of the world to . . . become a virtual pariah. . . . I think it’s very, very sad.”18
Though she had left the public sphere, Republican candidates in California continued to find Bird extremely useful for fundraising and direct mail purposes. As one commentator phrased it, “Ms. Bird’s name remains a kind of reflexive shorthand in California for ‘soft-on-crime liberal.’” Former San Diego mayor Pete Wilson was particularly apt to cite Bird at every opportunity. He had won a U.S. Senate seat in 1982. Eight years later, he ran as the Republican candidate for California governor to succeed George Deukmejian. In campaign stops across the state, he brought up Bird’s name at every opportunity, accusing his Democratic opponent Dianne Feinstein of supporting Bird and opposing the death penalty. Feinstein insisted she supported the death penalty but acknowledged that she considered Bird “a friend.” Wilson narrowly won the election.19
Dan Lungren, Republican candidate for attorney general in 1990, branded his Democratic opponent Arlo Smith “a Rose Bird liberal,” causing Santa Clara law professor Gerald Uelmen to lament: “Rose Bird is becoming the perennial bogyperson that the political right drags out of the closet whenever it wants to get a little hysteria going.” As one friend told a reporter, “the campaign against her was meant to destroy her. She may be the first person so devastatingly destroyed in a political sense that just mentioning her name conveys negative thoughts.”20
On rare occasions, Bird contributed opinion pieces to newspapers and magazines. In 1987, to commemorate the bicentennial of the U.S. Constitution, the Washington Post asked five noted individuals, including Bird, to write essays on various aspects of the founding document. Bird wrote about gender. Her own experiences “only mirrored a harsh national reality,” she wrote. “In this year of our Constitution’s bicentennial, ‘We the People’ are not yet at a point where the fundamental promise of equality for women is a legal fact.” She went on to describe the travails women experienced in law—underrepresentation as lawyers and judges, difficulty finding acceptance from male peers—which “reflects in microcosm the larger struggle of all women in this country to secure equal rights.”
Women entering the courtroom as defendants, jurors, or litigants were at a distinct disadvantage, Bird wrote, because they had little understanding of how the legal system worked. She had tried to address this problem by focusing on gender bias in “selection of court-appointed counsel at the trial and appellate levels; the language and pattern of jury instructions”; and “methods to overcome gender bias in the courtroom behavior of judges, counsel, court personnel and witnesses.” But much work remained to be done.21
Meanwhile, the California Supreme Court—as expected—shifted rightward, particularly in criminal cases. In June 1987 prosecutors asked justices to abandon a Bird court program to study racial disparities in death sentences; in October they obliged. That same month, justices overturned a 1983 Bird court ruling mandating that juries had to find that a defendant had intended to kill before conferring a death sentence. Six justices signed the majority opinion, written by Stanley Mosk, who declared that the earlier opinion had been reached in error.
The case involved a man who had strangled two women. Justices overturned his death sentence, however, because the trial judge had given jurors the disavowed Briggs Initiative instruction that a sentence of life without parole could eventually lead to parole. Associate Justice Allen Broussard dissented from the majority opinion, noting, “When the political winds gust in a new direction, it becomes necessary to remind all concerned of the virtues of a steady course.”22
In August 1987 the Lucas court unanimously upheld its first death sentence. By December 1990 justices had affirmed 84 of 109 death penalty cases, a nearly 75 percent affirmation rate. In comparison, the average for all thirty-six states with the death penalty was a 41 percent affirmation rate. And death penalty appeals took up more of the court’s time—39 percent, compared to 11 percent for the Bird court. If the public wanted death sentences pushed through the pipeline, the Lucas court seemed willing to oblige.23
But the increased number of capital cases meant that justices heard fewer appeals in other kinds of cases. In 1989, for example, the court granted petitions for hearings in only eighty non-capital cases, less than a third of the number of such cases heard annually by the Bird court. And the new court proved somewhat more favorable to business interests than the Bird court had been. For example, it overturned the court’s 1985 opinion making landlords liable for injuries suffered by tenants and ruled that mobile home parks had the right to exclude children.24
In cases involving civil liberties and some other issues, however, the Lucas court “blunted, but did not reverse the direction of the high court under Bird.” For example, it ruled that prayers at public school graduations violated the U.S. and California constitutions, mandated buffer zones in front of abortion clinics to protect patients, barred private clubs from discriminating against women and minorities, and allowed the battered-women defense in some criminal cases. Some of these decisions elicited surprise, a few protests, and charges that the new court still was engaged in “social engineering.”25
By 1990—only three years after their appointments—two of Deukmejian’s replacement justices had left the court. John Arguelles retired in 1989. Deukmejian named appeals court judge Joyce Kennard as his replacement; she became the court’s second female justice. Born in Indonesia at the beginning of World War II, Kennard had a youth even more deprived than Bird’s. Her father died in a Japanese prison camp during the war, and in the 1950s, she and her mother moved to the Netherlands. A tumor in her right leg led to a partial amputation when she was only a teenager. She immigrated to the United States in 1961 and worked her way through the University of Southern California both as an undergraduate and as a law student. Shortly after Kennard’s appointment, Bird sent her a congratulatory note, and the two women became friendly. Though not as predictably liberal as Bird, Kennard soon revealed a strong independent streak.26
Marcus Kaufman left the court in early 1990. In a parting shot, he accused the Bird court of having held up death sentences because of opposition to capital punishment. He suggested that its inaction on capital cases had created a massive backlog that created problems for the Lucas court, which often had to work seven days a week to catch up. The work had exhausted him. “To use dastardly means so that the death penalty cannot be implemented is really a disgrace,” Kaufman said. His remarks represented only his opinion, he added.27
Bird consistently refused to criticize her successors. “I felt I was under a microscope—it’s an enormously painful and difficult process, so I won’t comment on the new justices and their decisions.” Others did not share her reluctance. Joseph Grodin blamed the backlog on the Briggs Initiative of 1978. The court had spent years trying to untangle its provisions. “When Justice Kaufman got there, there wasn’t all that much to do,” Grodin said.
Cruz Reynoso suggested that the U.S. Supreme Court’s involvement in determining the constitutionality of California’s death penalty statutes also had played a role in the backlog. And Allen Broussard, who still served as an associate justice, said that when “Justice Kaufman was on the court, I frequently had to bite my tongue; maybe it’s just best to continue to bite my tongue.”28
The renewed emphasis on capital punishment had not resulted in any executions by the time Kaufman left the court, and polls found that more than three-quarters of Californians were anxious to see killers executed. Robert Alton Harris was first in line. Following his sentence for murdering two teenage boys in San Diego, he spent more than a decade on death row, as his attorneys filed dozens of state and federal appeals. His execution finally had been scheduled for April 1990, but the federal Ninth Circuit Court of Appeal issued a stay with only hours to go, postponing it yet again. Deukmejian had hoped to preside over the state’s first execution in a quarter century, but Republican Pete Wilson sat in the governor’s office when Harris finally went to his death in San Quentin’s gas chamber in April 1992.
Harris’s execution brought renewed attention to Bird and her record on death penalty cases. She had been out of office for more than five years but still had not found steady work. Her mother had died in 1991, so she was free to commute, or even to relocate, but no offers had emerged except for a semester-long stint teaching at the University of Sydney in Australia. She let her membership in the California bar association lapse. She gained weight, often dressed in jogging suits, and seldom wore makeup. Some friends described her as a recluse, but others noted that she still enjoyed dinners out and movies with a few chosen people. One was Associate Justice Joyce Kennard, with whom she occasionally had lunch. Kennard described Bird as “gracious, warm and witty.”29
Reporters still sought interviews. They phoned, wrote letters, and showed up at her Palo Alto home without warning. They took note of the “quiet cul-de-sac,” the “robust ferns hanging from a gracious old tree above a picnic table in the front yard.” They braved the closed gate and the “No Admittance” and “Beware of Dog” signs to knock on her front door. Dogs barked inside, but no one answered. Once, a reporter spied a woman who looked suspiciously like Bird walking her dogs. The woman brusquely said she did “not know the addresses” on the street and strode away quickly.30
One day in 1992, Bird stopped into the East Palo Alto Community Law Project—which offered legal services to low-income litigants—and volunteered her services. The staff of young attorneys failed to recognize the state’s first female chief justice, who asked them to call her Rose. They happily handed her documents to photocopy. A law school dean eventually alerted them to the identity of their diligent volunteer. Horrified, they apologized and asked her to take on a bigger role, but she demurred. She was no longer licensed to practice law and did not like to attend meetings.
Over time, however, Bird became close to several of the young women attorneys and gave them advice about how to navigate a still male-dominated profession. She told one to wear lipstick and professional clothing. “I learned you have to play those games,” Bird said. She told another to be more assertive, to not let men interrupt her, and to “feel comfortable looking out for yourself.”31
In the decade following voter rejection of Bird, Grodin, and Reynoso, California justices continued to appear on the ballot for confirmation. None faced organized opposition, and all easily won retention, albeit by somewhat smaller margins than in the days when justices routinely won 75 to 80 percent of the vote.32 In fact, few people paid attention to judicial elections, and only reporters covering the court on a regular basis wrote about the justices or their decisions.
Virtually no one outside legal circles took note of Malcolm Lucas’s retirement in 1996. Governor Pete Wilson appointed Ronald George—a former Los Angeles prosecutor, superior court and appeals court judge, and associate supreme court justice—to replace Lucas. It began to look as if, despite projections of continuing conflict, Bird’s rejection had been an anomaly, just a blip on California’s radar screen. Even so, some writers still predicted there would be “repercussions of a system driven by ideological true believers and attack ads.”33
The ideological battles had continued at both the federal level and in other states. In summer 1991 Republican president George H. W. Bush nominated Clarence Thomas, former head of the Equal Employment Opportunity Commission (EEOC), to fill the U.S. Supreme Court seat vacated by Thurgood Marshall. Whomever Bush nominated undoubtedly would have faced tough questioning; Marshall was a civil rights icon who had argued Brown v. Board of Education before the court in the early 1950s. Thomas, like Marshall, was African American. He also was an unabashed conservative.
His grueling confirmation hearing in fall 1991 illustrated how far the yardstick measuring “appropriate” topics for discussion and consideration had moved since the rejection of Bird and Bork just a few years earlier. The intervening time had seen the downfall of Democratic presidential candidate Gary Hart due to disclosures of marital infidelity, and now issues pertaining to sex had moved to the forefront of politics.34 Bird and Bork had complained about the circus-like atmosphere surrounding the judicial retention and selection process. Thomas called his appearance before the Senate Judiciary Committee—and an audience of millions—“a high-tech lynching.”
Early debate centered on Thomas’s legal philosophy. Liberal groups initially targeted Thomas for his opposition to affirmative action and abortion, and some women’s groups threatened to “bork” him. But the hearings soon pivoted to another topic: sexual harassment. Oklahoma University law professor Anita Hill had worked for Thomas at the EEOC, and in testimony to the committee she offered graphic details of uncomfortable conversations between herself and Thomas relating to pornographic films and other sexual matters. In the end, the Senate confirmed Thomas by a razor-thin margin, 52–48.35
By the early 1990s some state judicial elections had become fraught affairs as well. Texas had long been Democratic-leaning, angering business interests and others who believed the state supreme court was too plaintiff friendly. Led by conservative campaign strategist Karl Rove, beginning in the late 1980s they fought back. Texas jurists are chosen via partisan elections. Under Rove’s direction, “trial lawyers” became a term of derision and political efficacy.36
Conservatives in other states soon targeted justices for being “soft on crime.” In 1992 Mississippi associate justice James Robertson lost his seat in part because of a ruling that rapists could not be sentenced to death unless they killed their victims. Robertson’s opponent took the victory by incessantly touting his “law and order” credentials.
Four years later supreme court justices in Nebraska and Tennessee lost their seats following bitter election campaigns. David Lanphier lost his retention bid in Nebraska after a group called Citizens for Responsible Judges targeted him for two unpopular rulings. One overturned the state’s term-limit law and another deemed “malice” a requirement for finding defendants guilty of second-degree murder.37
Penny White was defeated in Tennessee following a campaign charging her with being “soft on crime” based largely on her ruling overturning the death sentence of a man charged with murder during a rape. She had voted to uphold the conviction. Victims’ rights groups led the campaign. One family traveled the state brandishing a photo of their murdered daughter even though White had not been involved in that particular case. She believed, she said, that the Republican governor had targeted her because he wanted to appoint a judge more sympathetic to his own point of view.
Citing the judicial code of ethics, White refused to fight back. At one point, when the attacks against her became too vicious, she sold her television set to avoid having to flip through channels or turn it off each time a negative ad appeared. Some of the attacks were based on gender. For example, she was criticized for not having taken her husband’s last name. Churches told members not to vote for White because she lacked “family values.” One editorial cartoon depicted White in her judicial robes reading a law book while, over her shoulder, two overweight male lobbyists muttered to each other. “Look at her, deliberately ignoring us,” one said. The other responded: “Uppity woman—we’ll show her.” White later called the experience of trying to retain her seat “hideous.”38
Whatever thoughts Rose Bird had about Clarence Thomas, or any of the defeated state justices, she kept to herself. By 1996 she still had no steady work but had regained her voice. She cowrote a book on constitutional law with Santa Clara professor Russell Galloway and penned opinion pieces in California newspapers generally focused on high-profile events and criticizing the media for its superficial, sensationalist coverage of the courts and of politics in general. It is possible to read Bird’s bitterness at her own treatment in her essays describing the experiences of others.
The arrest and trial of former NFL star O.J. Simpson for killing his former wife Nicole Brown Simpson and her friend Ronald Goldman seems to have served as a catalyst for Bird’s willingness to again take up her public persona. From the moment of Simpson’s arrest, Americans became obsessed with the case. It had everything: sex, race, celebrity, high-profile attorneys (including famed lawyer F. Lee Bailey and DNA expert Barry Scheck of the Innocence Project), colorful witnesses, and a glove that appeared not to fit. When the jury pronounced Simpson not guilty, many whites howled in protest; the African American defendant had “gotten away with murder.”
Bird also became hooked on the case. Not surprisingly for a former defense attorney, she believed the jury had gotten it right; the prosecution had not proved its case. “It was the media that played up the fact that one victim was a beautiful white woman,” she wrote in an essay for the Los Angeles Times. Reporters “knew that this touched historical chords in the white community.” Seeming to channel Clarence Thomas, she added, “It wasn’t very long ago that black men were castrated and lynched for looking at white women. Is this part of our collective psyche?” Did they “care that the white community might convict this man for a double murder based solely on white revulsion at the domestic discord, the abusive words, the graphic pictures? If the white community doesn’t understand the verdict rendered, then the press and television have failed in their responsibility.”39
Six months later Bird wrote about the suicide of navy admiral Jeremy Boorda, who came under scrutiny for wearing two medals that critics claimed he had not earned. It was perhaps her most personal piece. She understood exactly what Boorda had gone through, she said.
If you have never experienced life under a microscope, it is almost impossible to understand any of this. Those who live a public life are no longer seen as human beings. Rather, they are objects to be examined, worked over, manipulated, ridiculed and sometimes even hated. Someone else defines who they are as men and women and what they stand for as public figures. And that image often has little to do with the real person.
The personal lives of our public figures are scrutinized in the hope of finding some flaw, some misstep, some instance that can be blown up out of proportion, to make or break those individuals. Then their ideas and programs can be killed without any real public discussion.40
Several months later Bird learned that her cancer had returned for a fourth time. In November 1996, twenty years after having her right breast removed, doctors removed her left breast. The day after her release from the hospital, she drove more than one hundred miles round-trip from Palo Alto to Oakland to speak at the memorial service for her former court colleague Allen Broussard, who had died of cancer. “He was a scholar of the law,” she said. He was also “fun to be around and that’s a blessing on a court that often took itself too seriously.”41
Broussard had died the same day that California voters passed Proposition 209, limiting the use of affirmative action in education and hiring. The measure had been heavily promoted by Republican governor Pete Wilson. Bird took to the pages of the San Francisco Examiner, bemoaning what she called “California-style apartheid,” which would result in fewer African Americans and Latinos on college campuses. “What a shame. . . . California is world famous for its system of higher education. However, no one can expect legislators to fund a system that represents only part of the citizenry. And no one can expect minority legislators and other officeholders who believe in diversity and equality to fund a non-representative system.”42
She took a wry tone in an April 1998 piece for the San Francisco Examiner, which came in the midst of sensational media coverage on President Bill Clinton’s sexual relationship with White House intern Monica Lewinsky. Bird’s missive purported to be a memo to anyone planning a campaign for president. “Establish a legal defense fund of at least $10 million to ensure you can pay the bills for all the lawsuits and criminal investigations against you or your spouse. . . . Remember that in politics you don’t make friends, only alliances. And those are momentary at best.” If elected, the successful candidate should “abolish the intern program at the White House. . . . Never let a woman under 85 near you. And never hug anyone, not even your mother. . . . Make certain your spouse has no opinions on anything and can stand for hours gazing lovingly at you.”43
That same month, Bird traveled to Los Angeles to accept an American Civil Liberties Union Conscience Award. She virtually never attended such gatherings, and those present gave her a standing ovation. Some reporters also attended, hoping to finally interview the elusive former chief justice. She evaded their questions, except for one from a journalist who queried why she was not working. “You have to be asked,” Bird replied.
ACLU of Southern California executive director Ramona Ripston said that Bird had “paid dearly for her conscience.” Among those participating was Mike Farrell, human rights activist and star of the television series M.A.S.H. In his introduction, Farrell called Bird “certainly one of the great figures in California on issues of equality in society.” He assured the former chief justice that she had not been forgotten.44
This came as no news to Bird. A dozen years after her defeat, Republican candidates still used her as a cudgel to beat on their opponents. In 1998 Republican attorney general Dan Lungren was running for governor against Gray Davis, formerly chief of staff to Jerry Brown. “I won’t go back to the Jerry Brown-Gray Davis years when [they] were putting people like Rose Bird on the court,” Lungren told one audience. “If you listen to my opponent right now, he can barely remember Rose Bird. . . . Give me a break.”45
The reference was relevant for another reason, however. In 1998, for the first time since 1986, conservative groups had targeted two California high court justices—Associate Justice Ming Chin and Chief Justice Ronald George—on the November ballot. Both were appointees of Pete Wilson. The death penalty was not at issue this time, since the court had upheld 85 percent of the more than three hundred death sentences it had heard, and the state had carried out five executions. But George and Chin had angered antiabortion forces when they voted to strike down a 1987 law—never enforced—that required girls under eighteen to obtain parental consent before having abortions.
In his majority 4–3 opinion, George acknowledged vast differences of opinion on the topic. But “the morality of abortion is not a legal or constitutional issue,” he wrote. “It is a matter of philosophy, of ethics, and of theology.” In the final analysis, the law was unconstitutional because it violated the right of privacy guaranteed by the California Constitution, he wrote.46
The California Pro Life Council quickly announced an effort to defeat George and Chin. The group garnered widespread attention and some funds, mostly by harkening back to the Bird court. But its campaign gained little traction. George announced his intent to fight back and traveled the state talking to a wide variety of groups and individuals. Both justices raised money—approximately $1 million apiece.
Newspapers editorialized about the differences between the 1986 and 1998 antijudiciary campaigns. The prolife forces were attempting to defeat justices based on a single decision, wrote Berkeley law professor Stephen Barnett. Bird, meanwhile, had voted to overturn more than sixty death sentences that came before the court during her tenure. In the end, both George and Chin easily won confirmation.47
By the 1998 election, every justice but Stanley Mosk—by then eighty-six years old—had been appointed by George Deukmejian or Pete Wilson. The court still handed down decisions that pleased conservatives, but it was not always predictable. For example, it ruled against employers who sought the right to randomly drug test employees and watered down the state’s draconian “three strikes” law, which mandated life sentences for anyone committing a third felony, no matter how minor.
When Gray Davis defeated Dan Lungren in the November 1998 governor’s race, he became California’s first Democratic chief executive in sixteen years. He understood that he had to tread carefully when it came to judicial appointments, lest he unleash a reprise of the acrimonious battle over “soft-on-crime” judges. “The shadow looming over Davis’ appointments is that of Rose Elizabeth Bird,” wrote one journalist. Davis moved quickly to quash potential trouble, sending out a member of his transition team to promise that the governor would appoint only judges who understood that the death penalty was settled law in California.48
In an ordinary time, Rose Bird might have cheered Davis’s election, despite his efforts to distance himself from her. The two had, in fact, been friends, and Bird had presided over the wedding of Davis and his wife Sharon. She also might have been pleased by the decision of the group Death Penalty Focus to honor her work, via the annual Rose Elizabeth Bird Commitment to Justice Award. In early 1999 the organization announced that Norman Jewison, a film director specializing in socially conscious films, was that year’s recipient.49
By early 1999, however, she faced extremely serious health problems. The second mastectomy had not eradicated her breast cancer. She decided against further treatment, and by summer she had largely come to terms with the fact that her life might be measured in months, rather than years. In late summer Claire Cooper, a reporter for the Sacramento Bee who had covered the court for two decades, penned a letter to Bird. She was writing a story for a magazine and had some questions. Would the former chief justice be willing to talk to her? “I was surprised . . . by her call when she got my letter in September,” Cooper wrote. She arranged to meet Bird for lunch at a Palo Alto restaurant.
The woman who greeted her was “gaunt and unsteady.” She occasionally mixed up her words, as when she said “General Motors” when she meant “General Mills.” She was “in good spirits,” but thirteen years after her ouster, her experiences on the court still haunted her. She wanted to set the record straight. She admitted to some mistakes, particularly to being politically “naïve,” such as when, as agriculture secretary, she told lawmakers she would take no amendments to the Agriculture Labor Relations Act.
When it came to her tenure as chief justice, however, Bird mostly blamed the entrenched political system. The “old boys’ network” viewed everything as a “power grab,” she said, particularly her efforts to diminish the influence of the “dangerous shadow court”—administrators who actually ran the judiciary from behind the scenes. At judges’ meetings, “wives would say hello to me, but men didn’t know what to call me. Three-quarters of the battle is looking the part. Nobody knew what a woman justice was supposed to look like.” As Cooper phrased it, Bird was “a symbol of change that threatened domination of the courts when the women’s rights movement was young.”
Bird knew early on that she would not be reconfirmed in 1986, she told Cooper. “The forces were so powerful against me and I had no political or economic base.” The notion that she might have tried to save her job by voting “differently if I knew it would keep me in” was a nonstarter. “It was never an option. I made choices and I was willing to live with them.” It had been difficult to live on so little money afterward, she acknowledged, but “I learned to scale down and live like a student again, to get down to values.” It was to be her last interview; Bird died at Stanford University Hospital on December 4, 1999. Hers had been a particularly complex type of breast cancer, according to her doctors.50
Virtually every major newspaper in the United States took note of her passing, as did some publications outside of the country. All described her trail-blazing career, her votes against the death penalty, her humiliating rejection by voters, her reclusive postcourt life, and her role in changing the way politicians and the electorate viewed judges.
The New York Times recalled that Bird “came of professional age at a time when major law firms still resisted hiring women” and quoted federal appeals court justice Stephen Reinhardt, who reflected on her “total passion and commitment,” which was “not always the best way to function and get along in this world in a political environment.”51 The San Francisco Examiner remembered Bird as a “brilliant pioneer for women in law, California’s first woman chief justice and perhaps the most controversial figure in the state’s political history.”52
The Washington Post called her a “young, brilliant and combative jurist.” The Guardian combined a personal reminiscence on Bird with a discussion of the impact of her confirmation loss on the judiciary as a whole. Writer Christopher Reed said he had spoken with Bird during her 1986 campaign, and she had shared with him the immense personal costs of trying to keep her job: “the daily deluge of letters threatening to kill or rape her, how they got hold of her [home] telephone number,” and how she had to move her “terrified” elderly mother out of her home. Writer Harold Jackson described the “chilling effect” of “the sacking of a chief justice. Every subsequent judicial appointee seemed to peer nervously toward the electorate.”53
A few writers proved willing to challenge the maxim that one should not speak ill of the dead. Debra Saunders of the San Francisco Chronicle reminded members of “the Bird fan club that voters gave Bird the boot not because she was principled, but because she put her principles above the law.”54 Two pointed remembrances discussed the price that Bird had paid for her devotion to principles. Writing in the Orange County Register and other papers, syndicated columnist Peter H. King noted that writers of her obituaries
have presented anecdotal evidence that the former chief justice actually might have been a human being.
Though best known for a job that was taken from her, Bird, in fact, was stripped of something far greater . . . her humanity. For more than a dozen years and long after voters removed her in 1986, she was battered by politicians looking for a cheap way to define themselves. . . .
She became a bumper sticker, political invective, campaign shorthand. . . . She became an ’ism. Why? Because it worked.55
Patt Morrison of the Los Angeles Times wrote in a similar vein:
At some unknown transformative moment, Rose Bird ceased to be a person.
Instead, she became, in the pidgin of politics, a cause célèbre, a litmus test, a hot button. . . . [H]er name is still carried down from the attic and dusted off whenever candidates get hooked up to the political polygraph: Do you support the death penalty? Did you oppose Rose Bird?
Her defeat woke a slumbering giant. Until Bird, judges had barely registered on voters’ radar. . . . The legacy of Rose Bird . . . is not outlawing the short-handled hoe or bolstering tenants’ rights, but embodying the warning that henceforth, beneath the robe of a jurist, there better beat the heart of a politician.56
A few weeks after her death Bird’s friends and former colleagues held memorial services in Los Angeles and Palo Alto. Hundreds of friends and former colleagues remembered Bird not as a tragic figure but as a warm and generous woman, always there to help celebrate a triumph or mourn a tragedy. One friend remembered her annual phone call when she sang off-key birthday greetings, accompanied by her dog Nellie.57
In March 2000 the state supreme court gathered in San Francisco to memorialize Bird. Former justice Cruz Reynoso said that Bird “knew life as those without power live it. The perspective of those who do not have power guided her sense of justice.” Associate Justice Joyce Kennard remembered the former chief justice as “a woman of intellectual brilliance, extraordinary courage, compassion and grace” and noted that Bird had “forever left her imprint on California’s history.” She also had a strong impact on Kennard. Bird’s friendship, Kennard said, “enriched my life.”58