Few Rules to Go By : Justice Bird’s Recall Becoming Epic Battle

California hasn’t seen politics like this in a long time: The most important woman in state government, Rose Elizabeth Bird, a champion of unreconstructed liberal idealism, locked in a 20-month, multimillion-dollar election campaign against the mightiest and most determined of California’s conservatives.

At stake is the future of the state’s judiciary, the rule of law, the safety of the streets and the conscience of California--in short, crime and justice. Or so the warring parties say.

Already, the statewide election campaign to retain or reject Bird as California’s chief justice has taken on epic dimensions.

Bird, 4 Others Face Voters

Bird and four other justices of the seven-member state Supreme Court must stand for a confirmation/retention vote in November, 1986, or voluntarily step down.

Even with the governorship and a U.S. Senate seat also on the ballot in 1986, some guess that these judicial confirmations will be what history remembers of the 1986 California elections.

The process is unlike that for other elective offices. Justices are alone on the ballot, without challengers. Voters get to say only yes or no. The governor names a replacement if a justice gets less than 50%.

Beyond that, there are few rules or traditions to guide the small army of professional campaign consultants, civil libertarians, crime victims, legal scholars and politicians now assembling for battle.

How, for instance, should justices conduct themselves on the campaign stump? What standards of performance should justices be judged by?

Sen. Barry Keene (D-Benicia), former chairman of the state Senate Judiciary Committee, sides with those, most of whom support retaining Bird and the other justices, who believe that this election should be significantly more limited than ordinary political campaigns.

Judicial competence or ethics are the “proper” subjects for campaign debate, Keene wrote in a recent essay. “Improper,” he suggested, is trying to put judges’ views to “a political test.”

“The court must be here to remind us of what is right when popular sentiment is wrong,” Keene concluded.

With the opposing view are people such as Bill Roberts, the longtime Republican-oriented campaign expert who is leading the charge against Bird and two of her colleagues. His organization is called Crime Victims for Court Reform.

Roberts sees no particular difference between Supreme Court justices and any other candidates for high office.

“I don’t see how they can escape defending their decisions to the public,” he said. “They are part of our government and they have to accept responsibility.”

The past provides little guidance on this business of putting justices on the stump.

Varying Terms

Upon the state’s founding in 1849, a Supreme Court was chosen by the Legislature and thereafter, with varying lengths of terms, justices stood in contested elections just like politicians running for other offices.

Then, 51 years ago, as part of a “curb crime” campaign by the Chamber of Commerce, voters approved Proposition 3, the constitutional provision requiring that Supreme Court justices first be appointed by the governor and then periodically stand by themselves for confirmation election. Advocates said the system would give California higher caliber justices and also allow for accountability to voters, unlike the federal system that protects judges with lifetime appointments.

“The first step in improving the administration of justice is to determine a method that would place the most qualified men on the bench and keep them there. . . . (Proposition 3) was a happy combination of the best features of both the elective and appointive systems for the selections of judges,” wrote one legal historian in describing the reasoning behind 1934’s Proposition 3.

In the years since then, no Supreme Court justice has lost an election. The closest was a Republican-backed effort to oust Bird at her first confirmation in 1978. She won with 52% of the vote.

But then again, never has there been anything like the expensive, long-running, TV commercial campaign that is now taking form around Bird and at least two, perhaps three, of her colleagues.

Consider just some of the ingredients: The death penalty, ideological control of the court, the touchy matter of sexism that swirls around this first woman chief justice, and the supercharged partisan divisions developing over offices that are historically nonpartisan.

“Profound,” is the breathless term both sides use to describe the consequences for California justice, no matter who triumphs.

Other State Races

The personalities and issues seem destined to envelop other election races up and down California, as well. Conservatives are prepared to make it a law-and-order test for Democrats. And Democrats seem divided, with some of the so-called new breed plainly unhappy at the thought of being dragged into a do-you or don’t-you debate over this court and its record.

Besides Bird, the court’s first woman, two other justices appointed by former Democratic Gov. Edmund G. Brown Jr. also are under attack. They are Justices Joseph R. Grodin and Cruz Reynoso, the court’s first Latino. Both have said they will fight to stay in office. Justice Stanley Mosk, appointed by former Democratic Gov. Edmund G. (Pat) Brown Sr. is a target of some conservatives but not others. He has indicated that he is considering retirement.

The other justice up for confirmation is Malcolm M. Lucas, appointed a year ago by Republican Gov. George Deukmejian. He declined to discuss his views on the election, but some wonder if he is not worried about being dragged to defeat if the anti-court campaign against the others proves successful.

The remaining two judges on the court are not up for election.

When it comes to building a political organization to shape a political defense, Bird is furthest along. After considering a number of campaign management professionals, she settled on the left-leaning, video-message-oriented firm headed by Bill Zimmerman of Santa Monica.

Fonda Videos

Zimmerman has run ballot proposition campaigns in California, conceived the widely admired California television commercials for U.S. Sen. Gary Hart’s 1984 presidential campaign, and managed campaigns for Chicago Mayor Harold Washington and New Mexico Gov. Tony Anaya. He is most widely known for his nonpolitical productions of Jane Fonda’s popular exercise videos.

“We were hired because we are good messengers,” Zimmerman said.

Perhaps also a factor was that Zimmerman is one of those unusual political individuals who seems unaffected by the pendulum swings of politics. He is a year-in, year-out liberal of the kind who went to Hanoi during his Vietnam anti-war days, helped the Indians at Wounded Knee and now is protesting U.S. support for anti-government Contra forces in Nicaragua.

Bird declined to be interviewed and is still undecided how active the chief justice can or will be on her own behalf without “undermining the dignity of the court,” according to her campaign. But friends and associates describe her as having little interest in the changing political winds and unwavering in her philosophy that justice is to be administered to protect the rights of the individual, not to comfort the many.

Bird Poem

“The difference between an ideal and a right,” Bird wrote in a poem, “depends on someone to fight the good fight.”

Just as her admirers see this uncompromising idealism as a virtue, her opponents find it downright arrogant.

“What we have are two criminal justice systems going off on different azimuths. The (other) 49 states and the U.S. Supreme Court are swinging toward public safety with the mood of the country. But in California, judicially made law is increasingly defense-oriented,” said Kern County Dist. Atty. Edward Jagels, a leader in the anti-Bird Crime Victims for Court Reform organization.

“Not only is our Supreme Court unmoving in the face of growing public safety concerns, it is still going in the other direction.”

For his part, Grodin has retained a separate campaign firm, headed by political professional Don Solem of San Francisco, a firm known for campaigns against rent control. Reynoso enlisted early campaign planning assistance from friend Velma S. Martinez, chair of the University of California Board of Regents and former head of the Mexican-American Legal Defense Fund.

All the court campaigns are consumed with early organization and fund raising. Zimmerman has disclosed that the chief justice’s longevity in office is a national matter in his eyes and will involve fund-raisers around the nation.

Lined up against Bird and the others are two major campaigns, one lesser operation and one organization still being assembled.

Consultant Roberts and his crime victims group was in the race first, and he says he wishes rival groups would “go away--they know this is the main group.”

Mosk Not a Target

Roberts targets Bird, Grodin and Reynoso for ouster, but not Mosk. Roberts said he would like to raise and spend $3 million in the campaign.

The issue as framed by Roberts is that victims have an opportunity with this election to do something more than complain about crime. And Roberts, based on early polls and 33 years in politics, said he believes it will be a relatively easy task to defeat the chief justice.

“I can tell you flat out she’s gone, gone, gone. I’ve never seen anything like this. She has too many negatives. The only question is can we make it so the other two are gone, too,” Roberts said. “There’s nothing that’s going to save her. She is going to be slam dunked out of business.”

The other high-horsepower organization that has gotten into the contest early is Californians to Defeat Rose Bird, representing a renewed alliance between anti-tax, anti-government crusaders Paul Gann and Howard Jarvis, joined by former Los Angeles police chief and now state Sen. Ed Davis (R-Valencia). They are affiliated with direct-mail fund-raisers William A. Butcher and Arnold Forde.

Campaign manager Stewart Mollrich said one reason Jarvis and Gann are involved in the race is unhappiness with the court’s record in handling citizen initiatives, including Bird’s opinion in opposition to the landmark 1978 tax reduction measure, Proposition 13. Mollrich said the group’s budget is $2 million to $3 million. This group wants to oust all Democratic-appointed justices, including Mosk if he runs.

State Sen. H. L. Richardson (R-Glendora), one of the state’s most recognizable spokesmen on the political right, is forming a third group.

Birdwatchers Society

The lesser campaign organization in the race is called the California Birdwatchers Society, which works out of the U.S. Senate campaign office of Rep. William E. Dannemeyer (R-Fullerton) and so far has been unable to grow bigger than the congressman’s personal ambitions.

Friction and misfires already have beset the rival court opponents, particularly over the tenor of the campaign. Slogans such as “Bye, Bye Birdie” (Roberts), references to the “Gang of Four” (Jarvis-Gann-Ed Davis) and a fully feathered, stuffed and mounted turkey called “Rosie” (Dannemeyer) have tended to backfire and draw criticism to the court critics and set them to bickering among each other.

And then there was the inflammatory disclosure by Bird that the Roberts campaign was generating some vicious and threatening hate mail against her. Campaign officials disassociated themselves from the letters, but the early effect was to paint court critics in colors of the political fringe.

Meanwhile, Bird has taken cautious steps to soften her own hard-edged image. On broadcast talk and feature shows, Bird talks about how she admires working mothers (she is single), how flattered she is to be a role model for young girls and how difficult her job is on her personal life. Rose Bird the caring woman previously has not been so visible.

Two other powerful political forces also are involved in the anti-court efforts. The California District Attorney’s Assn. has taken a stand against Bird, Grodin and Reynoso. A representative said the group will seek to find and publicize at least one dramatic case in every county to illustrate its complaints with the Bird court.

Kept Up Attack

And Deukmejian has kept up his attack on the Democratic majority of the court, although insisting that he will not join organized campaign efforts. Some court supporters have already taken to lumping the governor with the anti-Bird campaigns, depicting the attack as a barely disguised attempt by Deukmejian forces to realign the court.

“It’s a court-packing scheme,” said former Gov. Brown Jr., who noted that Deukmejian, if reelected, would appoint replacements for defeated justices.

Anthony Murray, former president of the state Bar Assn. and spokesman for Bird’s Committee to Conserve the Courts, said opponents are motivated for both politics and money. “I think the people are going to be outraged when they find out why these people are doing this. They are doing it for self-interest,” Murray said.

Everyone seems to agree that a significant portion of the forthcoming campaign will revolve around the record of the Bird court. Campaign volunteers in both camps are analyzing each justice’s voting record in detail. But it remains to be seen whether this will make the political choices any easier.

Roberts, for instance, said that his latest count shows Bird siding with criminal defendants in 90% of the appeals. But Bird supporter Assemblyman Gray Davis (D-Los Angeles) said this still leaves 90% of the felony convictions in California untouched.

Court Opponents

Court opponents emphasize those cases where convictions are reversed, while supporters point to record prison crowding as evidence of those that are not. Bird’s detractors say that fear of crime is the public’s No. 1 concern as measured by recent polls, but her supporters counter that the rate of major crimes has dropped each year since 1980 from 3,906 major crimes per 100,000 population to 3,233 by the latest measure.

But in the end, no issue is as inseparable from the politics of the court election as the death penalty.

Capital punishment was re-enacted in California in 1977, but San Quentin’s green, two-seat gas chamber remains unused. The Supreme Court has decided 32 death penalty cases, reversing all but three. Bird has never voted to uphold a death sentence. Grodin, Reynoso and Mosk all have cast at least one vote for it.

“Since 1977, over 190 murderers have been sentenced to death but not one of them has paid the ultimate price,” Deukmejian complained last Tuesday to the California State Sheriffs Assn. “The overwhelming majority of Californians support capital punishment and so do I.”

San Francisco pollster Mervin Field recently found public support for capital punishment at a modern high, with 83% of Californians in favor.

Linda K. Feldman, Bird’s designated campaign manager, responded that the court’s action is not blocking justice but insuring it.

‘Two Years Behind’

“California was two years behind other states in enacting the death penalty, and the court is now two years behind in making sure it’s constitutional,” she said.

Because of the passions already in evidence, some political figures are urging restraint.

Atty. Gen. John Van de Kamp, a Democrat who said he is remaining neutral in the contest, recently issued what he called a “cautionary yellow light” to the state’s opinion leaders.

“Let’s all do our homework, argue about their qualities, their opinions and their policies, and then judge Rose Bird, Stanley Mosk, Malcolm Lucas, Cruz Reynoso and Joe Grodin individually as each of us would like to be judged by them.”

STANDING FOR ELECTION

Chief Justice Rose Elizabeth Bird and three other justices up for election on the November, 1986, ballot have come under attack from conservatives. Supreme Court justices are appointed by the governor in California and must stand for confirmation by voters at the following general election for governor. The term of office is 12 years, unless a justices is appointed to fill out the unfinished term of a predecessor.