Chief Justice Against Electing Judges : Burger Silent on Rose Bird Campaign

Chief Justice Warren E. Burger of the U.S. Supreme Court, responding to a question about the controversy over California Chief Justice Rose Elizabeth Bird, said Monday that he categorically opposed the use of elections as a tool for selecting the nation’s judges.

Burger, answering students’ questions at the University of San Diego School of Law, said he was not familiar enough with the issues surrounding the state’s Nov. 4 judicial election to comment directly on Bird’s campaign to keep her job.

But he criticized the idea that judges should somehow strive to be representative of society or that they should be selected on that basis. Burger said the only concept judges should represent is “integrity.”

“I am against the election of judges in any state under any circumstances,” Burger told a crowd of about 200 students and instructors that packed the school’s ceremonial Grace Courtroom.

A spokesman for the Committee to Conserve the Courts, Bird’s campaign committee, embraced Burger’s statement as strongly supporting Bird’s stance on the election.

“It’s a ringing endorsement for the central theme of our reconfirmation election--that the test for confirmation is judicial integrity, not adherence to the demands of politicians and special interest groups,” said spokesman Steven Glazer.

A spokesman for Crime Victims for Court Reform, one of the committees working for the removal of Bird and Justices Cruz Reynoso and Joseph Grodin, said California’s system preserves judicial independence while giving the public a way to hold judges accountable for their performance on the bench.

“The people have a right to make sure their justices in California are accountable to them,” spokesman Debbie Goff said.

Burger’s comments came in an informal session with students at the end of a two-day meeting at the university of the Commission on the Bicentennial of the United States Constitution, of which he is chairman.

While sidestepping some questions on issues likely to come before the court, Burger offered impromptu comments on a wide range of subjects during the hourlong session at the USD School of Law --from abortion to advertising by lawyers to prison reform.

On abortion, Burger said scientific developments in the years since the court’s 1973 decision in Roe vs. Wade, which legalized abortion, supported the view he expressed when the court ruled on the case--that it was dangerous for judges to base rulings on the findings of science, because they can change quickly.

“The whole picture has changed in the dozen years since then, showing the difficulties of taking judicial notice in these fast-changing scientific issues,” Burger said.

Critics of the court’s decision, including attorneys for the Justice Department, have noted that the justices legalized abortion in the first six months of fetal development on the grounds that a fetus could not live outside the womb during that period. The critics argue that medical breakthroughs challenge that assumption.

Burger vehemently denounced much of the self-promotion engaged in by lawyers since the high court in 1977 upheld attorneys’ right to advertise their fees and services. Burger dissented from the court’s 5-4 decision in a case involving Arizona’s regulations on lawyers’ advertising.

“A lot of the advertising being tolerated today by lawyers is something no self-respecting plumber would engage in--or maybe even a used-car salesman,” he said.

The chief justice said he had no argument with simple, respectful announcements of a lawyer’s availability, comparing such ads to the shingles that lawyers historically have hung outside their offices. But he said he felt more strongly than ever that people should be wary of lawyers who tout their services more brashly.

“I would never, never, never employ the services of a lawyer who advertises,” Burger said.

Burger, a judicial conservative appointed chief justice by President Richard M. Nixon in 1969, restated his long-held concern that the American legal system devotes excessive amounts of time to adjudicating defendants’ guilt in criminal cases and insufficient attention to their rehabilitation once they are imprisoned.

After extended court proceedings, “the guiltiest person in the world begins to believe what his lawyers have told him--that he isn’t guilty at all,” Burger said. At that point, the criminal is a poor prospect for rehabilitation, he said.

Burger praised experiments in Florida state prisons that put prisoners to work in nonprofit enterprises, comparing the program to the Chinese system of “factories with fences.” Until he is shown otherwise, Burger added, he sees no constitutional obstacles to experiments in several states with jails run by private enterprise.

During a morning-long meeting of the 23-member bicentennial commission, representatives of more than a dozen local and national programs sought endorsements of their plans for celebrating the Constitution’s 200th birthday.

Burger announced that the commission had voted in a closed session early Monday to issue its first endorsement to San Diego County’s bicentennial commission, which has plans for sporting events, education programs, parades and a gala ball in the days leading up to Sept. 17, 1987, the 200th anniversary of the signing of the Constitution by delegates to the Constitutional Convention in Philadelphia.

Burger acknowledged the commission was behind schedule and short of funds for planning the celebration. He said, “We have an enormous job, and we just have to do the best we can with what’s available, a little like the people at Valley Forge, where they starved to death and froze to death.”

Hobart Cawood, superintendent of Independence National Historical Park in Philadelphia, outlined that city’s ambitious plans for marking the bicentennial with a yearlong celebration beginning in September.

The program of activities--comparable to those that drew hordes of visitors to Philadelphia for the 1976 celebration of the bicentennial of American independence--culminates with a planned reenactment of the Grand Federal Procession of July, 4, 1788.

In that parade, people of all trades and professions marched to celebrate their new Constitution, Cawood said. Planners of the 1987 parade expect President Reagan, leaders of Congress and members of the Supreme Court all will travel to Philadelphia for a parade and rally with 1 million people on the mall near Independence Hall, where the Constitutional Convention met.

Other plans described to the commission include movies, radio and television programs and textbooks on the history and meaning of the Constitution, essay contests for students of all ages, and military programs marking the bicentennial.

Besides Burger, members of the commission who attended the weekend meetings included Sen. Ted Stevens (R-Alaska); Herbert Brownell, attorney general in the Eisenhower Administration; County Executive William Lucas of Wayne County, Mich., which includes Detroit; William Green, an attorney and former mayor of Philadelphia; and author Phyllis Schlafly.

The commission met in San Diego at the invitation of USD law professor Bernard Siegan, a member of the commission.