The Net Cast for Rose Bird Tightens Around Reynoso

A small but influential group of Latinos has begun a campaign to save the job of the only Latino on the California Supreme Court, Justice Cruz Reynoso. Considering that he is not due to be reconfirmed by voters until late next year, the question arises if they aren’t gearing up too early.

But considering some controversial decisions that the state’s highest court handed down last week--reversing the death sentences of four convicted murderers, including a particularly vile character named Theodore Frank, who tortured a child to death--one wonders if the campaign to help Reynoso isn’t already too late.

The court ruled in Frank’s case (Reynoso in the majority) that the murder conviction was valid, but the death penalty phase of his trial had been tainted by the admission as evidence of old diaries in which Frank wrote of his desire to molest and torture children. That may seem like a perversely legalistic interpretation of the law, but the Supreme Court’s duty is not to mete out justice, only to set the ground rules under which lower courts do so. In Frank’s case, a new penalty-phase trial can be held, and he may yet die for his crime.

Regardless of its legal merits, the Frank decision will provide more ammunition for the conservative activists waging a well-funded campaign to defeat the controversial chief justice, Rose Elizabeth Bird, next year. The California Constitution requires that all Supreme Court justices be reconfirmed periodically by statewide vote. Reynoso, along with Justices Stanley Mosk, Joseph Grodin and Malcolm Lucas, will be on the 1986 ballot with Bird, and some organizers of the anti-Bird effort are pushing for a “no” vote on all of them to make sure they hit their target.

It would be a sad irony for Reynoso to be ousted only three years after former Gov. Edmund G. Brown Jr. made him the first Latino ever to serve on the state’s highest court. The very possibility has aroused an important segment of the state’s Latino leadership--a growing cadre of young Latino attorneys.

Reynoso’s supporters plan to use Latino pride as a key element of their political strategy. It is based on the view that each of the justices up for confirmation appeals to a different “constituency.” If all of these “constituencies” turn out to vote, the thinking goes, all of the justices can be saved.

There is much in Reynoso’s background that will appeal to voters, for it’s a quintessential American success story. One of 11 children born to Mexican immigrants living in Orange County, he worked the state’s farm fields before attending law school at UC Berkeley. He worked for several years as an anti-poverty lawyer and law professor before being appointed to the state Court of Appeal in 1976. A soft-spoken man of even temperament, Reynoso has also been a fair judge by most accounts. His ouster would be a loss not just for Latinos but all Californians.

But ethnic pride may not be enough to save Reynoso. Latino voters have shown a resistance to such strategies in the past. They are also a more conservative voting bloc than is often realized, especially on gut-level issues like crime. Does anyone think, for instance, that voters raised in a traditional, family-oriented culture will look kindly on a decision that rescues from the gas chamber a child molester who raped and murdered a 2 1/2-year-old girl?

There is a real possibility that the only way Reynoso and his colleagues will be saved is if Bird resigns, defusing the drive against the court before it gathers real headway. The Latino attorneys involved with Reynoso’s campaign are reluctant even to discuss the prospect of a resignation by the chief justice. They seem to find the suggestion unethical, or simply beyond the realm of acceptable discourse.

But legal ethics do not win political campaigns; votes do. And all signs indicate that next year’s campaign to save the high court will be bitter and focused tightly on Bird’s reputation as a judge considered soft on crime. This was reflected in the May California Poll that found that while public opposition to Bird’s reelection had increased over the last three months, support for the other incumbents had gone up slightly. That means Reynoso and the others might have a fighting chance to be reconfirmed if Bird were out of the race.

Of course, that survey was taken before the Frank decision. And Bird’s concurring opinion in that case will not help her chances next year. She went beyond her colleagues to argue that Frank should not only be given a new penalty hearing, but that his conviction itself should be overturned because jurors opposed to the death penalty were excluded from his trial.

Bird’s argument has legal and philosophical merit, but it won’t win a political campaign. And for better or worse, politics will determine the future for the California Supreme Court.