3 High Court Justices Seek to Avoid Bird’s Coattails

Their conservative critics branded them the California Supreme Court’s “Gang of Four,” a liberal phalanx marching in lock-step to flout the will of the people.

At first, the justices dismissed the charge as so much hokey rhetoric. But, as they began to focus on the challenges of reelection, three of the justices, Joseph R. Grodin, Cruz Reynoso and Stanley Mosk, have worked to set themselves apart from the fourth and best known member of the court’s liberal majority, Chief Justice Rose Elizabeth Bird.

“There is no voting bloc on the court. Rose Bird does not tell me what to do and what not to do,” said Grodin, a 55-year-old labor law specialist who was appointed to the court in 1982 by former Gov. Edmund G. Brown Jr.

“The critics try to paint us into a corner, saying that we always vote the same way, and that’s simply not true,” said Reynoso, who is 55 and the first Latino member of the court. Reynoso was also appointed in 1982 by Brown and, like Grodin, had served on the state Court of Appeal.

Mosk has not formally launched a campaign, but he has said he is inclined to run for reelection and, in conversations with journalists, he also has emphasized his differences with the chief justice.

The efforts of Grodin and Reynoso to establish their own identities have not gone unnoticed as the state’s legal community, once thought to be solidly behind all of the justices, is showing signs of divided loyalties.

Endorsements Cited

In Los Angeles, a number of leading lawyers active in Democratic politics have endorsed Grodin or Reynoso or both while remaining silent, so far, on Bird.

Endorsing Reynoso are Warren Christopher, a former deputy secretary of state under President Jimmy Carter best known for his success in helping negotiate an end to the Iran hostage crisis; Francis Wheat, who served on the U.S. Securities and Exchange Commission under President Lyndon B. Johnson, and Dan Garcia, chairman of the Planning Commission with close ties to Mayor Tom Bradley.

The Grodin camp includes Christopher and Shirley and Seth Hufstedler, husband and wife and partners in a downtown law firm long known for championing liberal causes.

Shirley Hufstedler was a member of Carter’s Cabinet. Her husband served as special counsel to a judicial commission that in 1978 investigated claims that members of the Supreme Court, which then included Bird and Mosk, improperly delayed controversial rulings until after a court election. The commission did not bring the charges against any of the justices.

Although Shirley Hufstedler’s name appeared on a list of sponsors for a Bird fund-raising dinner in December, both she and her husband said they have not endorsed the chief justice. Shirley Hufstedler said she did not attend the dinner for Bird and has not contributed money to the chief justice’s campaign.

The Hufstedlers said they preferred not to talk about the reasons behind their selective endorsements.

But other lawyers said that the existence of several distinct campaigns allows them to pick and choose among the justices based on personal preferences without embracing the conservatives’ strategy of rejecting a majority of the seven-member court for purely political reasons.

“It would be a tragedy of major proportions if there was a wholesale purge of the justices. Not so if we lost just one,” said one lawyer who has decided to back Grodin and Reynoso but said she has not made up her mind on Bird. The lawyer asked not to be identified.

Numerous Methods

Grodin and Reynoso have been attempting to distinguish themselves from Bird in a number of ways--from stressing that they have voted for the death penalty in some cases, to pointing out that they came to their jobs with prior judicial experience, to making themselves more available to the state’s political press.

“Reasonable, respectable, likable.” That is the image Grodin and Reynoso are trying to project, in the view of one campaign observer. “They are two relatively obscure jurists trying to carve their own niche next to a highly publicized chief justice who has been accused of being inexperienced, inflexible and imperious.”

Los Angeles lawyer George Kieffer, a local spokesman for Grodin’s campaign, said the justice’s political advisers want to portray Grodin as “the judge’s judge . . . someone who is admired by people who are pillars of the community, including some who may not agree with his philosophy.”

Kieffer pointed out that Republican Gov. George Deukmejian, an outspoken critic of Bird, voted more than once to approve Grodin’s nomination--first to the state Court of Appeal in 1979 and three years later to the Supreme Court. Deukmejian cast his votes while he was attorney general and a member of the state Commission on Judicial Appointments. Deukmejian has not said whether he favors Grodin’s reelection. Nor has he said how he feels about the reelection of Reynoso or Mosk.

Neither Grodin nor Reynoso claims to enjoy campaigning and, after about three months on the stump, both still sound ill at ease in front of a microphone.

Range of Material

Reynoso can deliver an entire speech without mentioning the Supreme Court election, choosing instead to talk about how he met his wife, or wondering aloud why his alma mater, Pomona College, decided to name its athletic teams the “Sage Hens,” or shyly boasting about the time, as a boy in Orange County, he persuaded local postal authorities to deliver his family’s mail to their remote farmhouse.

Born in Oakland and reared in the East Bay, Grodin has a genial, professorial manner. He has written books about the law and, like Reynoso, has been a member of a law school faculty. Grodin taught at Hastings Law School in San Francisco, Reynoso at the University of New Mexico. Although they do not hesitate to draw distinctions between themselves and Bird, both Grodin and Reynoso say they do not enjoy doing it.

“I don’t feel comfortable going around and saying ‘See, I have differed with my colleagues, and you ought to vote for me for that reason,’ ” Grodin said. “I don’t think that should be the test. But apparently it is something the voters are interested in. And it is a fact. There are differences.”

Pressed for details, Grodin and Reynoso talk about their votes in favor of the death penalty, an issue that they assume will dominate the election. Grodin has affirmed death sentences in five of the 39 cases that have come before the court since he was appointed, and Reynoso has affirmed one of the 44 death penalties that he has reviewed.

Mosk on Death Penalty

Mosk, too, has discussed his record on the issue, pointing out that he has voted for the death penalty in 21 of the 55 cases that have come before the court since 1977, when the state’s death penalty law was adopted. Mosk has been on the court since 1964.

Since Bird was appointed to the court in 1977, she has voted against the death penalty in all 55 cases that have come before the court.

As the campaign against the chief justice has grown stronger, the justices most closely identified with Bird--Grodin, Reynoso and Mosk--have not been the only members of the court to call attention to their differences with her.

For example, Justice Malcolm M. Lucas has taken the unusual step of writing letters to two Los Angeles newspapers to highlight his dissents in cases in which Bird, along with a court majority, overturned death sentences.

Both Lucas and Justice Edward A. Panelli were appointed by Deukmejian and neither justice has been marked for defeat by the court’s conservative critics. Both justices, however, will be on the ballot in November, and Panelli acknowledges that they could become accidental casualties of the anti-Bird fervor.

“It could happen. I’m sure there is going to be some cross fire,” Panelli said.

Nevertheless, neither Panelli nor Lucas said they plan to campaign.

“I couldn’t raise enough money to make a difference in a statewide race. So, I will just have to trust my reputation with lawyers to get me through,” Panelli said.

Bird Raises $1 Million

Among the justices who are campaigning, only Bird has raised the kind of money, just over $1 million, that effective statewide campaigns seem to require nowadays. Grodin has raised about $110,000 and Reynoso about $164,000. Public opinion polls show, however, that Grodin and Reynoso have not slipped in popularity as a result of their more modest campaign efforts.

Indeed, over the last year, polls indicate that the reelection chances of almost all of the justices have improved, except for Bird. (The polls do not track Panelli, who was appointed last December.)

According to the Los Angeles Times Poll, voters now favor confirmation of all of the justices except Bird, and the margin of approval of all except Bird and Grodin has grown. Over the last seven months, Mosk’s has increased by 10 percentage points, Grodin’s by 9 points, Lucas’ by 8 points, and Reynoso’s by 4 points, while Grodin stayed the same and Bird lost ground. Bird’s losing margin has grown by 6 points.

Observers of the election disagree on the effect of the justices running separate campaigns. Some people predict that Grodin and Reynoso will not be able to compete with Bird for money and support, while others say that Bird stands to be isolated by an election process that allows court supporters to overlook her while backing her colleagues.

Grodin and Reynoso say they hope that the exclusive endorsements they have received show that voters do not think of the court as a cabal, and that if the wave of Bird opposition continues to swell, it will not wash them out of office along with the chief justice.

Common Committee

A number of lawyers and politicians who support Bird and her colleagues continue to believe that the justices would have the best chance of winning if they joined forces under the banner of a committee that would represent all of them.

Advocates of this approach, including Rep. Howard L. Berman (D-Studio City), say that a single committee would be able to build the broadest possible support because it would ask people to back the court as a whole without requiring them to get behind a particular justice whom they might not like.

As proposed, such a committee would be run by political professionals, allowing the justices to steer clear of politics and avoid any appearance of a conflict of interest.

“My own personal belief is the best way to deal with the political campaigns of the justices is to set up an independent committee to represent all of them,” Berman said in a recent interview.

Berman said the formation of such a committee might make it easier for a number of Democratic politicians, who have refrained from endorsing any of the justices, to get behind the court.

However, Bird, who first rejected the idea of such a committee, has indicated that she continues to believe that the delicate issue of judicial politics is best handled by the justices running their own campaigns.

Spokesman Opposed

“The independence of the judiciary is not served by having a committee of politicians or their agents,” said Steven M. Glazer, a spokesman for Bird’s reelection committee. “The chief justice opposes a committee that is the handmaiden of one party or of some politicians. The judiciary is nonpartisan and should remain so.”

Spokesmen for Grodin and Reynoso say they are still interested in the idea of an independent committee, but they say that, if there is going to be any change in campaign structure, it had better be soon.

“We think it’s a great idea, but we can’t wait forever for it to be formed. It’s almost past the time when you can start making major changes in the campaign,” said Vilma Martinez, Los Angeles coordinator for Reynoso’s campaign.

In the meantime, much of what Grodin and Reynoso are saying to voters about the court is not all that different from the basic thrust of Bird’s campaign message.

Replying to critics who say the court has been insensitive to crime victims, Grodin, like Bird, cites court rulings on behalf of the victims of drunk drivers, of industrial accidents, defective products and toxic waste.

“If we are going to have score cards on the court, they ought to reflect the whole record,” Grodin said during a recent interview.

And, like Bird, Reynoso warns voters about the dangers of opposing judges who do not render popular decisions.

“The real issue is whether or not the court will become politicized with judges reaching their decisions based on what they think will be popular with the voters in the next election,” Reynoso told a group of supporters recently at a Beverly Hills gathering in his honor.

Grodin and Reynoso say they expect much of their support to come from people like former Justice Otto M. Kaus, who recently retired from the court, and Jesse Choper, dean of the law school at the University of California, Berkeley, both of whom are backing all the justices standing for reelection in November. At least $10,000 of the $164,000 raised by Reynoso came from people who also gave to Bird, while nearly 30% of Grodin’s campaign treasury came from Bird contributors.

Even without a single committee, the various campaigns on behalf of the court may wind up presenting a unified front.

One lawyer who has endorsed Grodin but not Bird said that the division of loyalties could turn out to be a temporary phenomenon.

“I would like to stay out of it as far as Bird is concerned, but if we are going to get a campaign against her that is going to damage the court, if the attacks really get out of hand, then I would come in on Bird’s behalf. I think a lot of other people would do the same thing,” said the lawyer, asking to remain anonymous.