Marsha Ternus was working as a civil litigator in 1993 when Republican governor. Terry Branstad appointed her the first woman to serve on the Iowa Supreme Court. Seven years later her male colleagues unanimously selected her as the court’s first female chief justice. For more than fifteen years Ternus’s work won high praise, and she faced scant opposition. Then in 2009 she authored a unanimous decision overturning a law that barred gay marriage in Iowa; it violated the equal protection provision of the state’s constitution, she wrote.
Within weeks, a coalition of conservative groups announced that they planned to target Ternus and two male justices in the 2010 election. Money poured in. Opponents carried signs declaring: “It’s we the people, not we the courts.” Ads depicted “pictures of a church, a boy scout, hunters and children pledging allegiance to the American flag.” In the end, all three justices went down to defeat. Ternus later called her opponents’ tactics “intimidation and retaliation utterly inconsistent with the concept of a judiciary charged with the responsibility to uphold the Constitutional rights of all citizens.”1
Oliver Diaz, a Republican, was appointed to the Mississippi Supreme Court in 2000; two years later, after a bitterly fought race, he won a six-year term. But he quickly ran afoul of business interests who saw him as too plaintiff friendly. Over the next several years, opponents managed to have Diaz charged with bribery and tax evasion, leading to two trials that ended in acquittals. His legal troubles kept him off the bench for three years, and in 2008 he lost his retention bid. Speaking to Amy Goodman on NPR’s Democracy Now several years later, Diaz said: “What we’ve seen lately are these corporations coming in, putting money into judicial races, and they’re promoting candidates who tend to support corporate interest.”2
In Illinois, probusiness opponents targeted Chief Justice Thomas Kilbride after he voted to overturn limits on medical malpractice awards. Perhaps recognizing that malpractice would not bring out enough voters to defeat Kilbride, critics also accused him of being “soft on crime.” Kilbride fought back, traveling the state and raising more than $2.7 million. He retained his seat.3
In 2012 three Florida justices managed to fend off a high-wattage effort to oust them because of a ruling on “Obamacare.” The justices had voted to remove a measure from the statewide ballot that allowed Floridians to opt out of mandatory health care coverage. It contained “misleading and ambiguous language,” they ruled. R. Fred Lewis, one of those targeted, told the New York Times that he was “very, very stressed at the whole circumstance. This is a full frontal attack . . . on a fair and impartial judicial system, which is the cornerstone and bedrock of our democracy.”4
The 2014 election season featured campaigns in several states against high court justices. In Tennessee, the Republican lieutenant governor led a campaign to defeat three supreme court justices appointed by a Democratic governor. They were “antibusiness” and “soft on crime,” he charged. The three judges counterattacked, joining forces to raise money and run ads under the auspices of a group called Keep the Tennessee Supreme Court Fair; all three won by narrow margins.5
Two Kansas justices also won retention despite an effort by conservative groups to remove them for voting to overturn two death sentences. Eric Rosen and Lee Johnson had been appointed by former Democratic governor Kathleen Sebelius, and their defeats would have enabled Republican governor Sam Brownback to appoint their successors. After the election, Rosen thanked the electorate, noting that “of far greater importance than our personal retention is the retention of the court’s independence and autonomy.”6
Back in the 1980s the campaign to remove Rose Bird, Joseph Grodin, and Cruz Reynoso had seemed an anomaly, based on a unique set of circumstances. Bird and a few others warned then that the California contest was the opening salvo in what would become a large and costly battle to control the nation’s courts. Few paid attention. Yet today, virtually every election cycle brings another effort to remove state supreme court justices. Thirty-nine states elect justices, either in contested or uncontested races. Spending on judicial campaigns “has exploded in the last two decades,” Jeffrey Toobin wrote in 2012. “In 1990 candidates for state supreme courts only raised around $3 million, but by the mid-nineties campaigns were raking in five times that amount. The 2000 races saw high-court candidates raise more than $45 million.” Since 2000, $275 million has gone to judicial campaigns.7
Some have dubbed the movement to defeat justices “robe rage.” Anyone with a grievance, it seems, might mount an effort against a judge. Appointment to the bench no longer automatically confers status and prestige; instead, it almost guarantees emotional distress. Rose Bird was targeted for a body of work over nearly a decade. Today, it takes only one controversial ruling to threaten a justice’s career.8
Nearly thirty years after Bird’s defeat, nothing, it seems, is off-limits politically. Gloves-off fights over supreme court justices—and some lower court judges as well—have become as commonplace as Friday night football games, with each side rooting for its “team” and both sides using vitriolic slogans. In Michigan, conservative opponents of one judicial candidate accused her of helping to “free a terrorist.” Another campaign claimed that a pro–gay rights candidate “sides with child predators.” Liberals, on the other hand, accused a conservative judicial candidate of “denying benefits to cancer patients.”9
As more and more judges have faced opposition and the campaigns have become increasingly expensive, ugly, and personal, the contests have become a serious topic of discussion in a wide variety of media. Law journals, blogs, newspapers, magazines including Mother Jones and the New Yorker, and television programs such as 60 Minutes all have waded into the debate. Many ponder how all of this came to be. Explanations have been many and varied, with some commentators blaming the opposition to Rose Bird for pointing the way.
“Hundreds of thousands of voters have apparently been experiencing robe rage since 1978, the year opposition groups first began their ultimately successful efforts to recall California’s then-Chief Justice Rose Elizabeth Bird,” one writer opined. “We figured out a long time ago that it’s easier to elect seven judges than it is to elect 132 legislators,” said a consultant.10 Other factors have played roles as well, including Bush v. Gore. The 2000 presidential election ultimately decided by the U.S. Supreme Court enhanced public awareness of the powerful role courts play in the larger political arena. Then there were U.S. high court decisions such as Citizens United and McCutcheon v. Federal Elections Commission that lifted caps on campaign spending.
Uninformed voters, who often know next to nothing about their state’s supreme court justices or the issues they decide, can easily be manipulated by inflammatory campaign rhetoric, misleading slogans, and direct mailers. One survey featured interviews with voters who were asked about the qualifications of justices on the ballot. “I don’t know the difference between one judge and the next,” one respondent told an interviewer. “I don’t think I should have voted, but I did.”11 As former California appeals court justice Mildred Lillie put it, “The public has great difficulty in evaluating a judge’s qualifications or performance. The education of voters comes from special interest groups.”12
More important to many jurists, scholars, and writers, however, has been the potentially game-changing impact on the judiciary of the ever larger infusion of cash needed to counter these attacks. Polls suggest that judges and members of the public alike have strong concerns about this issue. A survey by two groups, the National Center for State Courts and Justice at Stake, found that three-quarters of the public and half of state court justices worry that money influences judges’ decisions.13
As retired West Virginia chief justice Richard Neeley put it in 2006, “It’s pretty hard in big money races not to take care of your friends. It’s very hard not to dance with the one who brung you.”14
Barbara Pariente survived the 2012 effort to oust her and two other associate justices from the Florida Supreme Court. “If judges think they have to put a finger to the wind, rather than decide cases based on the facts and the law, their ability to dispense justice will be compromised and democracy will be undermined,” she said.15 Theodore B. Olson argued the Bush v. Gore case before the U.S. Supreme Court in 2000 and became solicitor general under President George W. Bush. “The improper appearance created by money in judicial elections is one of the most important issues facing our judicial system today,” he said.16
Sue Bell Cobb served as chief justice of the Alabama Supreme Court for four and a half years before resigning in 2011, largely because of her inability to persuade state lawmakers to change a judicial selection process that left her “feeling disgusted.” Initially, Cobb reveled in her first-woman status, which “represented the pinnacle of success.” But it had taken $2.6 million to get there. In Alabama, judges can ask anyone for campaign contributions, even lawyers who appear before the court. “Dignity and fairness are too often the first casualties in these kinds of endeavors,” she wrote in 2015. Donors “want to know that investments they make . . . will yield favorable results.”17
Former U.S. Supreme Court justice Sandra Day O’Connor has spoken out frequently about money and judicial campaigns. At one point she said: “In too many states, judicial elections are becoming political prize fights where partisans and special interests seek to install judges who will answer to them instead of the law and Constitution.”18 At a 2006 law conference, O’Connor declared that “the public needs to understand that the notion of independence is not only for the benefit of judges, judicial independence is for the benefit of all society.”19
What can be done, if anything, to stop the juggernaut of money and destructive influences in judicial elections? Legal experts, politicians, and interest groups have wrangled with this issue for decades. One suggestion is the creation of nonpartisan campaign conduct committees. Judicial candidates and consulting firms would agree to avoid negative campaigning, and those stepping over the line would face sanctions. Another suggestion would eliminate the election and retention process, except in limited cases. Whenever a judge’s term expired, a panel composed of state bar association representatives would assess her or his qualifications. Those meeting specified standards automatically would be retained. Those who fell short would face the electorate in retention elections, with a 60 percent affirmative vote required to keep their jobs.
Groups including Justice at Stake have begun to track the sources of money going into judicial campaigns. In Michigan, suggestions have included limiting justices to one term, listing the names of all contributors online, and requiring the secretary of state to maintain contribution records until justices leave the bench.20 The U.S. Supreme Court has signaled its willingness to get involved in the issue as well. In April 2015 justices ruled that judges cannot solicit contributions when running for office. “Judges are not politicians,” Chief Justice John Roberts wrote in his majority opinion.21
California began grappling with the ramifications of judicial elections in the immediate aftermath of the 1986 election. Following the defeat of Bird, Grodin, and Reynoso, many in the legal community and beyond “feared that the California judicial retention process was forever tainted.” A “thoughtful and productive exchange” ensued. Suggestions included regulating campaign funding and expenditures.
California and a few other states require donors and fundraisers in judicial elections to register and report contributions, just like in other types of campaigns. Other suggestions have included public financing of judicial elections and the creation of standards and guidelines for appropriate campaign materials and tactics. These would be monitored by committees with authority to publicize violations. In 1998 the state removed from the ballot information on the number of years judicial candidates would serve, should they be elected. Studies found that judges seeking longer terms received fewer votes than those seeking shorter terms.22
As it turned out, 1986 was the last year that California Supreme Court justices faced any significant, widespread opposition. In the state that started it all, few people any longer pay much attention to the court, most people would be hard-pressed to name a single justice, and retention elections draw yawns and low numbers of votes, just as they did for decades before Rose Bird. In the 2014 election, for example, only about half of those casting ballots voted either for or against the three justices on the ballot. All three won handily.
Unimaginable even a decade ago, many people today find it difficult to recall Bird or her tumultuous tenure atop the court. References to Bird, even for people who lived through those years, are apt to elicit puzzled looks and, after a short pause, possibly an “aha” moment. What accounts for this dramatic change? Part of it can be attributed to short attention spans, courtesy of twenty-four-hour news, and to waning interest in capital punishment, the issue most connected to Bird in the public’s mind. It would have been much harder, if not impossible, for consultants to fuel a groundswell against Bird without the death penalty.
California has executed thirteen men in the years since Bird left office. The first execution occurred in 1992 and the last in 2006, the same year a federal judge ruled California’s cocktail of lethal drugs could cause inmates to “suffer inhumanely.”23 San Quentin prison now has three death rows, holding more than seven hundred men. Twenty women reside on their own death row in the Central California Women’s Facility in Chowchilla. The last execution of a woman in the state took place in 1962.
The increasing number of DNA exonerations of condemned individuals has made more Californians—like their counterparts in other states—queasy at the thought of wrongful executions. In 2012 abolitionists succeeded in qualifying Proposition 34, a ballot measure to end capital punishment in California. It very nearly passed. Former San Quentin warden Jeanne Woodford led the effort. And in a situation that can only be deemed ironic, Donald Heller, who cowrote the 1978 Briggs Initiative, and Ron Briggs, son of the measure’s namesake coauthor, traveled the state arguing for Proposition 34. The death penalty had become too expensive and essentially pointless, since it takes so long to execute anyone.24
That same year, current chief justice Tani Cantil-Sakauye, appointed by a Republican governor, said the death penalty in California was “not working. We know that.” It “requires structural change and we don’t have the kind of money to create the kind of change that is needed. . . . When the state decides to put somebody to death, gratefully, it takes time.” No one has called for her removal or even criticized her.25
Declining support for capital punishment—and the pervasive belief among many Californians that voters and politicians went “too far” in their efforts to harshly punish all criminals, no matter how minor their crimes—has significantly diminished conservatives’ power in the state and consequently their ability to shape debate and control the narrative on political issues in general. Meanwhile, the court itself has become much more diverse, more accurately reflecting the state’s demographics.
Six of George Deukmejian’s eight court appointments went to white males. Once he left office in 1991, more women and people of color garnered appointments. Meanwhile, the court that Deukmejian sought to mold into a bastion of conservatism began moving to the center politically. Some rulings even suggested that it had reverted to the liberal brand of jurisprudence practiced by Roger Traynor, Mathew Tobriner, and Rose Bird.
In May 2008 the court ruled that same-sex couples had the right to marry in California. In his 4–3 opinion, Chief Justice Ronald George—appointed by Wilson—referenced Traynor’s 1948 ruling in Perez v. Sharp. “The right to marry is not properly viewed simply as a benefit or privilege that a government may establish or abolish as it sees fit,” George wrote, “but rather [it] constitutes a basic civil or human right for all people.”26
Conservatives took to the airwaves—and to social media—to castigate the court. They qualified a measure, Proposition 8, for the November 2008 ballot; the only valid marriage was between a man and a woman, it stated. Voters narrowly approved the measure, but victory was short lived. In 2010 a federal judge ruled Proposition 8 unconstitutional, and three years later the U.S. Supreme Court upheld his ruling.27
In an interview after his retirement from the court, George explained his evolving views on same-sex marriage. “Basically the argument was largely historical—‘Well, it’s always been this way.’ But of course if we go back and we look at women’s rights when they were basically the property of their husbands, we look back at school desegregation, these were all historically justified, but not constitutionally or morally justified. I ended up concluding that it was not enough to give it a different name, and that it was basically the equivalent of being allowed to sit in the bus, but sit in the back of the bus.”28
Nothing demonstrates the state’s political about-face more than the resurgence of Jerry Brown. When Bird died, Brown was mayor of the city of Oakland. Three years later, in November 2002, he won election as attorney general, marking his return to statewide office. In November 2010 California voters elected Brown governor for the third time, making him both the state’s youngest and its oldest chief executive. In November 2014, forty years after his first campaign, he won an unprecedented fourth term.29
As of July 2015 Brown had made three state supreme court appointments: Goodwin Liu, associate dean of the Boalt Hall law school; Mariano Florentino Cuellar, a Mexican-born Stanford University law professor; and Leondra Kruger, an African American attorney in the U.S. Justice Department. All are young. At thirty-eight, Kruger is the youngest justice in the state’s history. And all are liberal. For the first time, the court has no white male justices. It is composed of four women, two Asian American men, and one Latino. None of Brown’s most recent appointees had previous experience as judges, and yet all won unanimous approval from the state’s Commission on Judicial Appointments.30
A confluence of forces conspired to doom Rose Bird, and they no longer exist in California, at least not at present. Her tenure began at a transitional time when the federal and state courts had come under fire for decades of liberal rulings on issues such as affirmative action, school busing, plaintiffs’ and defendants’ rights, abortion, and the death penalty. Conservatives—and some moderates—sought a retrenchment, and yet Bird (and to a lesser extent Grodin and Reynoso) persisted in pushing the court even further in many areas. Previous courts, led by well-connected, longtime members of the judicial elite, had been considered bulletproof. The Bird court came to be dominated by neophytes and outsiders, and it was led by a woman with no previous judicial experience.
Bird’s tenure also coincided with the media’s obsessive focus on politics at all levels, and she headed the most significant state court in the United States. She always blamed the media for facilitating her downfall. It trivialized serious issues, she declared, turning everyone into a commodity and everything into a sound bite. She had a point, and it was a valid one. No previous chief justice had been subjected to the kind of media scrutiny she experienced or, in fact, much scrutiny at all.
But the pioneering nature of Bird’s appointment evoked a high degree of curiosity, and her stubborn refusal to grant reporters access—and her not-so-veiled suggestions that even asking for interviews was improper—fueled more curiosity, irritation, and, at the dawn of the twenty-four-hour news cycle, more determination to get the story. When they could not get to Bird, reporters did the next best thing: they approached people who knew Bird. Some of them disliked her and were happy to talk.31
Finally, the importance of gender in Bird’s downfall cannot be overstated. Her appointment—and those of other women, including state justices such as Rosalie Wahl of Minnesota and Shirley Abrahamson of Wisconsin, and Sandra Day O’Connor on the U.S. Supreme Court—represented a triumph for second-wave feminism. It signaled that women had “arrived” and could compete with men at the highest levels.
But the succession of female firsts elicited a strong backlash among those who feared women’s success represented the beginning of the end for a white male–dominated society. Opponents hoped to stop the movement in its tracks, or better yet, reverse its course. “It was no mere coincidence that judicial races became hotly contested just as women and minority men ascended to the bench,” Sally J. Kenney has argued. She might have added that the lessening of public esteem for judges in general also coincided with increasing numbers of female and minority judicial appointees.32
A variety of factors made Bird a particularly promising target for these efforts, though they cannot explain the viciousness with which her enemies attacked or their single-minded effort to destroy her both professionally and personally. She was single and childless, enabling critics to construct her as out of the mainstream and to posit her as an example of what feminists “really wanted”—to undermine longstanding traditional gender roles. Abrahamson, Wahl, and O’Connor, on the other hand, had married and borne children—in Wahl’s case, five of them.
Bird was the third woman to sit atop a state supreme court, but the other two female chief justices had been much older and established at the time of their appointments. And both had close ties to members of the judicial elite in their respective states. In fact, both had ridden their fathers’ coattails into office. Lorna Lockwood of Arizona had been an attorney for twenty-six years when she was first appointed to the superior court bench in 1951. She was in her sixties when she became chief justice of the Arizona Supreme Court, a position her father had held before her. Susie Sharp of North Carolina practiced law with her father in the 1930s. She became a superior court judge in the 1940s and an associate justice of the state supreme court in the early 1960s. In 1974 she was named chief justice of the North Carolina Supreme Court.
Bird had never had a male figure to show her, either through example or advice, how to navigate the rocky shoals of gender politics, or any sort of politics. She had been on her own since childhood. Once on the court, she modeled herself after Associate Justice Mathew Tobriner, but the timing was all wrong. Tobriner was in the twilight of his career, and his liberal judicial philosophy had gone out of fashion.
Bird was part of a generation of achieving women that experienced “profound exclusion” and alienation while climbing the professional ladder, but other women seemed more adept at avoiding the pitfalls—by using humor, for example, or embracing collegiality. She possessed a personality that gave her opponents extra ammunition. She insisted on living and working on her own terms, hence her refusal to make friends with individuals, including journalists, who might have softened her image. And she declined the services of an experienced campaign consulting firm that might have defused or countered allegations that she wished to see hardened killers released from prison so that they could murder innocent children.
Tani Cantil-Sakauye is California’s second female chief justice, and she has not made the same mistakes as Bird. In fact, from the beginning she seemed to position herself as the “anti-Bird”: friendly, accessible, and welcoming. “I hate to say it, but she’s a charmer,” appeals court justice Vance Ray told a reporter just after Governor Arnold Schwarzenegger announced her nomination in summer 2010. “She’s just a very engaging person.”
Both Cantil-Sakauye and Bird experienced similar straitened circumstances as children. Born in 1959, Cantil-Sakauye is the youngest child of Filipino immigrants, who worked in fields of California and Hawaii in their youth. She grew up in Sacramento and was in high school when Bird lived there and worked as agriculture secretary. She attended community college before transferring to the University of California, Davis, where she majored in rhetoric. To pay college tuition, Cantil-Sakauye waited tables, and she continued doing so as a student in UC Davis’s law school, where she “devoted an incredible amount of time” to a program that encouraged other low-income students to attend law school. During summers she worked as a blackjack dealer in Lake Tahoe and Reno.
Even though she is a generation younger than Bird, Cantil-Sakauye found private law firms reluctant to hire her after law school; she was young, female, and an ethnic minority. Her first legal position came when Governor Deukmejian appointed her deputy legal affairs secretary in his administration. Soon she was on the fast track, appointed to the municipal court, superior court, and state appeals court. Chief Justice Ronald George appointed her to the state’s Judicial Council. When he announced plans to retire in summer 2010, he recommended Cantil-Sakauye as his replacement.33
At a ceremony announcing her appointment, she marveled at her life’s trajectory. Married to a Sacramento police lieutenant whose Japanese American parents had been interned during World War II, she spoke of her two daughters: “They have a set of grandparents who worked in the fields. They have a set of grandparents who were interned for four years. And their mother; is history remarkable or what?”34
In interviews Cantil-Sakauye disarmed reporters with self-deprecating anecdotes. She went to bed at night “in a tizzy,” she said, but woke up each morning telling herself, “I can do this!” Despite her title, she never presumes that she “is the smartest person in the room.” She modeled herself after the woman she most admires, Justice Sandra Day O’Connor, and in law school she and her friends formed a basketball squad dubbed the “Justice O” team. Asked by one reporter if she could offer a tip or two about blackjack, she said, “I could, I suppose, but I’m not any good or else I wouldn’t be working for a living.” In addition to her professional accomplishments, she also has been a Brownie leader.35
Cantil-Sakauye easily won unanimous confirmation in August 2010 but did not take office until the following January, when Ronald George retired. She immediately faced significant problems. The court system’s budget had been slashed during the recession, and the state legislature threatened to wrest funding control from the court’s central bureaucracy and shift it to state lawmakers and trial courts. She directly confronted legislators and visited newspaper editorial offices, calling such a plan “disastrous.”
Like Bird, she immediately faced problems with court staff. Bird’s involved a power struggle with longtime administrator Ralph Kleps, who soon resigned. Cantil-Sakauye’s also involved the court’s chief administrator, who came under fire for “mismanaging a costly computer system” and for running a “financially reckless, secretive and bloated department.” She eventually accepted his resignation but not before calling him “an invaluable resource.”36
The appointment of a second female chief justice fueled inevitable comparisons with the first. One appellate judge called Cantil-Sakauye “a lot smarter and a lot better looking than Rose Bird.” When Bird asserted judicial prerogatives, she had been “over-reaching” or a “polarizing figure.” Yet when Cantil-Sakauye did the same, as when she confronted the state legislature over cuts to the judicial budget, she was absolutely correct in her actions. Bird “was polarizing because of her views on a very liberal Supreme Court,” one attorney said.37
On the bench, Cantil-Sakauye is less predictable than Bird, though sometimes she seems to take a page from her predecessor. In one ruling, she said the public has a right to know the identity of police officers involved in shootings of citizens. In another, she said a young attorney in California illegally since childhood had a right to practice law in the state. The U.S. Department of Justice had deemed his illegal status sufficient reason to deny him a law license.38
In comments, Cantil-Sakauye suggested how much the professional climate has changed for women judges since Bird led the state high court. The public is now accustomed to women working as doctors, judges, corporate chiefs, and high-level politicians. Said Cantil-Sakauye, “In many ways I feel it was the wrong time” for Bird. “It doesn’t seem like she had the tools to deal with all that was going on with the bench at that time, the acrimony. . . . Ultimately, it was the wrong timing for her, and I feel badly about that.”39
The brutal campaign that cost Bird her job did not stop women from aspiring to the high court bench, governors from appointing them, or voters from electing or retaining them. Today, every state has had at least one woman supreme court justice, and judicial retention campaigns are equal-opportunity affairs; more than half of those challenged—and sometimes defeated—at the polls have been white men. And yet Bird’s experience remains extraordinarily significant.
In 1982, four years before the election that removed her from the bench, she penned an article for the Catholic University Law Review in which she bemoaned the “instant society” where judges were pressured to make decisions aimed at pleasing the populace. She foresaw a future both depressing and inevitable. “As part of this process of serving up images,” she wrote, “form often is exalted over substance, and oversimplification is mistaken for clarity of thought. The appearance of whatever is being packaged—be it food, news or even our political leaders—becomes far more important than the package’s contents.
“Faced with such formidable obstacles, judges may well come to view any potentially unpopular decisions . . . as threats to their careers. . . . It is my hope that judges will be able to withstand these enormous pressures in the years ahead. However, that will not be a simple task. It is easy to be popular; it is difficult to be just. . . . Unfortunately, courage has become a devalued currency in the instant society. The coin of that realm is image and speed, and those who would place principle above expediency often must pay dearly for that choice.”40