For Rose Bird, the Jury Is Out : THE DEFENSE: Allowing Politics to Hold Sway Over Supreme Court Sets Dangerous Precedent, Lawyer Argues

For Wylie Aitken of Santa Ana, the fight to keep Chief Justice Rose Elizabeth Bird and two other justices on the state Supreme Court is a battle to keep politics out of the courtroom.

It’s not that Aitken, a well-known civil attorney, supports the justices’ opinions on law-and-order issues or believes that the conservatives and law enforcement officials trying to force them from the bench in next year’s state elections are wrong.

Instead, he sees it as a matter of principle--contending that judges should only be removed from office for such issues as corruption, not because someone doesn’t like how they handle particular cases.

“If we allow justices to be removed from office for political reasons, we’re setting a dangerous precedent in this state,” Aitken said in a recent interview. “I would support Rose Bird . . . if it were the liberals and defense attorneys who were trying to throw her out instead of the conservatives and the prosecutors.”

Often Disagrees With Opinions

Aitken, 43, a former president of the California Trial Lawyers Assn., is Orange County chairman for the the Committee to Preserve the Court, a statewide group. While he is admittedly more liberal than most of Bird’s critics, Aitken said he often disagrees with her judicial opinions.

The Santa Ana attorney, who has long been active in Democratic politics in Orange County, said his group will hold a fund-raising dinner for Bird early next year. Asked if Bird could carry Orange County, where much of the anti-Bird fervor originates, he smiled and said, “I’d say I’ve got about the toughest job of all.”

Six out of the seven Supreme Court justices will be on the Nov. 4, 1986, ballot in a so-called retention election. They won’t run against opponents; voters will simply be asked whether or not to keep them on the bench.

Only Bird, Cruz Reynoso and Joseph Grodin, who are up for 12-year terms, face organized opposition. The three appointees of former Gov. Edmund G. Brown Jr. have been criticized for their rulings--especially in capital punishment cases--because some court observers believe that the justices’ decisions have been more favorable to criminals than victims.

Aitken said the organized opposition to Bird is coming from two sources: Republican politicians who hope to be swept into office by attacking her and county prosecutors upset by her votes on the death penalty issue. He is critical of both groups.

Election ‘Quite Different’

For example, Aitken rejects Gov. George Deukmejian’s statements that voters should apply the same standards in next year’s Supreme Court election that they would in any other election.

“That’s just not true,” Aitken said. “This is a retention election, which is quite different from other elections. It is supposed to be above and removed from politics.”

Aitken was also angered by Assemblyman Pat Nolan (R-Glendale), who said recently that Republicans would march to victory on the anti-Bird theme next year. Bird, Reynoso and Grodin should not have to worry about the political whims of voters, Aitken said.

“The court by its very nature is meant to be anti-majority; its role is to uphold the rights of the minority,” Aitken said. “That’s what makes our constitutional system so special. We need justices who will take positions contrary to popular belief.”

Aitken added that the irony about Bird is that she “has been a respected person all her life, she worked her way through law school and became the symbol of the American dream, which Republicans are always talking about.”

As for the opposition from California prosecutors, Aitken theorized that Bird, Reynoso and Grodin would be returned to office handily if the vote in California were among attorneys only.

‘Most Attorneys Understand’

“Most attorneys understand the principle involved,” Aitken said. “The prosecutors are only one segment of the legal profession, and right now they’re making the most noise.”

In a hint of the campaign to come, Aitken brushed aside the major charges that have been leveled at Bird and her colleagues.

The notion that the court is “anti-prosecution” is absurd, he said. “Who is in favor of crime? You think Rose Bird wants to leave her office and get mugged?”

Aitken also defended the court’s record on capital punishment, noting that defendants in all the cases being questioned are not being turned loose. All are either serving life terms or are in prison awaiting new trials, he said.

In another dig, Aitken pointed out that Malcolm Lucas, who was appointed to the Supreme Court by Deukmejian, has voted against the death penalty five out of the six times he has had the chance.

Argument Rejected

Finally, Aitken rejected the argument that murderers cannot be executed in California as long as Bird is on the bench. He said three California executions would already have taken place if they had not gone on to be appealed in the federal courts.

While Bird was a minority vote against the death penalty in all three cases, Aitken said, the majority rulings showed that defendants can receive the death penalty with the present state Supreme Court.

Despite these arguments, Aitken is concerned that the use of campaign ads against Bird featuring crime victims may distort the campaign and distract attention from what he believes are the real issues.

“Our side doesn’t have any crime victims to parade out before the voters to turn this into an emotional issue,” he said. “Our point is an intellectual one. That’s why I feel so strongly about this. We’ve got a tough job ahead of us making sure the voters understand it.”