Lawyers Break Tradition, Support Move to Oust Bird

There have been fewer epithets, and no more stuffed turkeys named “Rosie” are in evidence lately, but if the campaign against California Chief Justice Rose Elizabeth Bird is growing more courteous, it also is expanding beyond its raucous right-wing base.

For the first time, prominent members of the state’s legal community, which has traditionally rallied to the defense of the California Supreme Court, are speaking out against Bird. Saying they are disaffected moderates and liberals, the lawyers are taking issue with the California State Bar’s time-honored stand against opposing Supreme Court justices for political or philosophical reasons.

“All of a sudden it’s gotten respectable to get up and say ‘I’m voting against Rose Bird,’ ” said Mary Nichols, a Los Angeles lawyer who was secretary for environmental affairs under former Gov. Edmund G. (Jerry) Brown.

“The chief justice has politicized the court by putting her political and social views above the law. She has created an air of hostility to the judiciary that could be terribly damaging to the court system of this state,” said Bill Wardlaw, a Democratic activist and one of Dist. Atty. Ira Reiner’s top advisers who has helped run campaigns for Brown and liberal Sen. Alan Cranston.

Support ‘Definitely Eroded’

“I would say support for the chief justice definitely has eroded,” said Charles Vogel, president of the Los Angeles County Bar Assn.

Developments in the campaign against Bird have contributed to new tensions among her allies in the legal community and have put the court under unprecedented political pressure.

For almost 50 years, members of the court have sought reelection without immersing themselves in campaign politics. The justices have left the campaigning to others and, without exception, have won reelection.

Recently, however, to the dismay of some of her supporters, Bird indicated she would break with tradition and head her own campaign.

“I think she is making a grave mistake,” said Los Angeles lawyer Mickey Kantor, a Bird supporter who has helped run campaigns for Democratic presidential candidate Walter Mondale, as well as Cranston and Brown.

By running her own campaign, Kantor and other critics said, Bird will accentuate her reputation as a political judge and make it easier for people to abandon her cause.

After Bird decided to campaign, spokesmen for two other justices, Joseph Grodin and Cruz Reynoso, said they were in the process of organizing their own reelection drives. Along with Bird, Grodin and Reynoso have been targeted for defeat by the court’s conservative critics.

In all, six justices may face voters in next year’s election. In addition to Bird, Grodin and Reynoso, they are Malcolm Lucas, the court’s only conservative; Stanley Mosk, a liberal who has said he may retire before the election; and an unnamed replacement for Otto Kaus, who has announced that he will retire.

Death Penalty Record

Political opposition to the court’s liberal majority stems, in part, from its record on the state’s death penalty law: It has come down against enforcement in 33 of the 36 cases that have come before it, with Bird voting against the death penalty in all 36 cases. In addition, a pattern of opinions favoring poor people, tenants, labor organizations and Democratic political interests have led to charges that a majority of justices is putting its own ideology above the law.

“The court has repeatedly displayed an ideological hostility toward property ownership and business interests in general,” said Gideon Kanner, a member of the Loyola Law School faculty who said he has grown increasingingly disenchanted with the court since 1977, when he wrote a letter on behalf of Bird’s confirmation to the court.

During the eight years Bird has been in office, she has aroused personal reactions that have helped supercharge the politics of her reelection. California’s first woman chief justice, Bird has inspired deep loyalty among many supporters who see her as as an uncomprising defender of minority rights. Conversely, she has inspired rage among critics for what they see as Bird’s pious repudiation of mainstream mores.

Conservative groups gave vent to their animosity with such campaign slogans as “Bye Bye Birdie,” with references to Bird, Grodin, Reynoso and Mosk as “the Gang of Four” and with the display of a feathered, stuffed turkey dubbed “Rosie.”

Bird fanned the flames recently with comments to a vegetarian magazine in which she extolled the virtues of meat avoidance, saying she thinks it helps put her in touch with “her inner sea of calm . . . with nature and with the beauty of the planet.”

(Bird declined to be interviewed for this article.)

‘Sitting Ducks’

Spokesmen for the chief justice say that for the last several months, she has been trying to develop a strategy that will meet her critics head-on without plunging the court into election-year politics.

Laurence Tribe, a Harvard University Law School professor who has written favorably about Bird’s tenure, defended the California court as it prepares for a hotly contested election.

“If the justices enter into the fray, they risk saying or doing things that may be fine for a politician but improper for a judge,” he said. “But if the judges do nothing against what is often ignorant and misguided criticism, they are sitting ducks.”

Defenders of Bird’s decision to campaign said she has little choice, given the strength of the movement against her, which has already raised and spent about $1 million.

“What we have to do is tell the people the truth about the supreme court, its role in society and about why Rose Bird ought to be reelected,” said John Law, Bird’s campaign manager. “Those are matters the chief justice knows more about than anybody else and, quite rightly, she wants a role in getting that message out.”

Other people in the Bird camp do not think that she and the the other justices ought to be running their own campaigns.

“By forming their own political organizations, the judges are cutting against the best case that can be made for their reelection: that the court should be independent of politics and left alone to do its job,” Kantor said.

‘Large Liberal Network’

Another Bird ally, Appeals Court Judge J. Anthony Kline, said Bird’s decision to run her own campaign will play into the hands of critics who say she has been politicizing the court for years by writing opinions shot through with personal ideology.

“Now, it will be charged that she is at the center of a large liberal network of contributors with vested interests in seeing that she stays on the court,” Kline said.

Kantor said Bird rejected his suggestion to form an independent committee that would have let the judges steer clear of politics and handed over control of the campaign to professional politicians.

An independent committee, Kantor said, could have represented all five judges who are facing reelection, including Lucas, the only justice appointed by a Republican--Gov. George Deukmejian.

The three judges targeted for defeat, Bird, Grodin and Reynoso, were appointed by Brown, a Democrat.

Kantor said a committee representing all the judges, from Lucas to Bird, could have built the broadest possible base of support. Such a committee, he said, would have drawn people who might be critical of an individual judge but who feel more strongly that the court, as a whole, should be defended against political attacks.

“There are a great many lawyers, including Republicans, who would work to retain the justices for the sake of preserving the court’s independence,” Kantor said. “But without an independent committee, those folks may have nowhere to hang their hats.”

It is a frustration, Nichols said, that many lawyers are facing.

Support Varies

“They don’t like Bird, but they also don’t like the idea of destabilizing the court,” Nichols said, adding her opinion that the campaign that figures out how to accommodate those people probably will be a winner.

A Sacramento County Bar poll taken in June showed that although 72% of the lawyers taking part support the concept of an independent judiciary, the lawyers’ support for the five supreme court justices varied from 71.4% for Lucas to 50.1% for Bird.

A poll in San Francisco last April, among members of one of the state’s most liberal Bar associations, also showed varying degrees of support for the five justices, with Mosk receiving the highest rating, 89% and Bird getting the least, 65%.

The Los Angeles County Bar, which came out in favor of Bird in 1978, the first time she ran, has not conducted a poll. Charles Vogel, the Bar’s president, said members sympathetic to Bird do not want a poll because they are apprehensive about the outcome.

“People who favor retention are somewhat reluctant. They think the results would be close, or they believe that she would not prevail and they believe that would be very detrimental to her,” Vogel said.

Such lack of consensus among lawyers is a new development.

Donald Barrett, who headed the supreme court’s legal research staff from 1948 until 1981, said that in the past, the justices did not have to work for their own reelections because they could count on a majority of the state’s lawyers to rally voters behind the justices.

Judicial Conduct Code

Traditionally, lawyers have taken the position, reflected in the state’s code of judicial conduct, that justices should be voted out only if they are incompetent, dishonest or unfit, as a result of infirmity, to perform the duties of their office.

Lawyers argue that to vote judges out of office on political or philosophical grounds would be to wreak havoc with the judiciary. Justices would come and go at the whim of a fickle electorate, this view holds, or, to ensure relection, they would become political panderers, tailoring their decisions to suit the will of the majority.

Such a court, it is argued, would be ill suited to carry out one of its most important tasks: protecting the rights of minorities against oppression by the majority.

In 1978, the only other time Bird ran for election, she enjoyed broad support from the state’s legal Establishment, including law school faculties and major Bar associations.

Lately, however, as public opinion polls have revealed deep discontent with the California court, some legal scholars and Bar officials have argued that there are valid political reasons for voting against a supreme court justice.

“Things have gone much too far for the Bar to pooh-pooh the concerns of the people,” said Loyola Law School’s Kanner.

Robert S. Thompson, a USC Law School professor and a former state appeals court judge, talked about the “fiduciary responsibility of the justices to make decisions that the public would make on its own behalf.” If the justices ignore that responsibility and “allow personal choices to control the results in a substantial number of decisions,” they should be voted out, Thompson says.

Does that mean that the court should follow the will of the majority?

Not exactly, according to Thompson and others with similar views.

‘Deeper Values’

“The court has a duty to distinguish between the popular will and society’s deeper values,” said Michael E. Smith, who teaches law at the University of California Law School at Berkeley and who in 1965-66 served as law clerk for Earl Warren, the late chief justice of the United States.

Although the court is not bound by the popular will, Smith said, it does have a duty to divine those “deeper values,” which may be expressed a variety of ways, through the Bill of Rights or through legislation authorizing the death penalty.

Smith said he found Warren, who presided over one of the most liberal eras of the U.S. Supreme Court, to be more in touch than Bird with social values.

“Why would I vote for Warren and might not for Bird?” he asked.

“I think she is much further away from the community than he was. I don’t think you would have found him batting 1,000 against the death penalty.”

Despite their misgivings about Bird, however, many of the critics say they are not sure how they will vote in next year’s election. Like Bird’s defenders, they say they are worried that a campaign against her and her colleagues could do lasting damage to a court that has been impervious to political pressure for 50 years.

“My concern is with the precedent you set by voting out high court members in large numbers,” Kanner said. “I’m not too eager to be yanking on that cork, because I’m not sure what will come out of the bottle.”

‘Law Based on ... Whims’

“I am inclined to vote against Bird at the present time, but I am concerned about the effect that a campaign against the chief justice could have on the future of the court,” said Stephen R. Barnett, a Berkeley law professor who has written extensively and critically about the court under Bird. “The danger, of course, is that you get a court that comes and goes with each election, and you end up with law based on the whims of the public.”

Bird’s defenders say they plan to combat arguments that the court has been at odds with the mainstream of society.

“We want to get the message out that this has been a court that has championed the interests of people of all classes: of consumers, of the elderly, of people with health needs, accident victims and people who have had their property taken away,” said Anthony Murray, a Los Angeles lawyer who chairs Bird’s fund-raising committee.

Allies of the court have begun distributing statistics intended to demonstrate that the court is not soft on crime. The figures, for 1983 and 1984, show that the court has upheld convictions in more than 90% of the criminal cases appealed to it.

One of Bird’s staunchest allies, Jerome B. Falk, who is president of the San Francisco Bar Assn., said, however, that he is worried about the tone of the campaign, fearful that a promotional binge could give the court an aura of political huckstering.

“I don’t look forward to a campaign that markets the court, where you have TV spots that show a family outside the gates of an apartment complex, while a voice-over tells you that were it not for the California Supreme Court, these children could have been barred from living there,” he said.

Difficult Position

On the other hand, Falk said it will be hard--perhaps impossible--during a campaign in which slick, quick TV spots could carry the day, to win peoples’ votes with disquisitions on the importance of protecting the stability of the court.

Yet, there are persuasive people willing to make that argument.

One is Kaus, known as centrist on the court who often has been at odds with the chief justice.

“I’m not naive enough to say that, as a judge, your personal views don’t enter into what you do, and I know that we have had some pretty horrible supreme court judges,” Kaus said, adding that he was not referring to any members of the current court.

“But where the court has been dead wrong, the people have rectified it with new legislation,” he said.

What happens when you throw justices off the court?

“You don’t have any guarantee that the next person appointed is going to be any better,” Kaus said. “And who is to stop the people from voting that person out of office? Pretty soon you have chaos.”