In California this year, the voters are clamoring for frontier justice. As in the movies, a lynch mob has gathered outside the jail, demanding that murderers be turned over for punishment. A judge stands in the doorway, trying to tell the mob what the law and civilization demand. Unlike the movies, however, the judge is a woman, and she is campaigning to stay in office.
Over lunch in Westwood one day last week, that judge, Chief Justice Rose Elizabeth Bird, was talking about the difficulty of being a sitting judge running for an elective office.
"I am not a politician," she said. "Certainly the trouble I'm in politically shows that even more graphically than anything I could say. I don't do the politically smart thing. I never have."
The complexities of legal arguments don't fit well into news stories, particularly on television. The voters are justifiably worried about crime. They are told that the chief justice has voted to overturn either the conviction or the sentence in all 56 death-penalty cases that have come before her. Some newspapers explain the reasoning, which is as important in many cases as, but it makes for dull copy. Some papers and most TV stations don't try very hard.
"Everything is reduced to simple black and white," Bird said. "Once you start an equation of the victim on one side and the Bill of Rights on the other, you might as well forget about the Bill of Rights."
The way news is defined in this country puts Bird at a disadvantage. She can talk about an independent judiciary, but that is a one-day story. Her opponents, on the other hand, have many cases to attack her with. They say, "This is what the court did. Isn't it awful?" and few news outlets check to see whether that is in fact what the court did or why they did it.
As she spoke, Bird's mood was alternately animated and withdrawn. She laughed frequently, as if to dispel her public image. "When I was in Sacramento, the image that the press portrayed of me was rigid, stiff, humorless, sort of a mother superior," she said. "Do I strike you as any of those?"
No. She showed both emotion and concern in describing the difficult job facing a judge who must read about gruesome murders and then make unpopular decisions about people convicted of those crimes. She said that is never portrayed in the press.
"Read the papers," she said. "Do you see anything at all about how difficult it is for a judge to read this stuff and go through it? It's enormously difficult to be a judge in a society where you have crimes as brutal as ours.
"It takes enormous maturity on the part of society to understand the role of a judge. You have to believe in a set of rules. You have to believe in a process and you have to believe in a government that will be fair to everybody including those who are the pariahs within the society and those who do terrible things."
"Nobody wants to make a hard job for the police catching criminals," she said. "That's not the role of the court. And that's not the role of the Bill of Rights. But it's very hard (for voters) to understand that when you say to a police officer, 'You should have gotten a warrant."'
Bird said she could understand the feelings of a grandmother whose two-year-old granddaughter was horribly tortured and murdered and now believes the killer should go to the gas chamber, and due process be damned.
"There's nothing I can say in terms of bringing back her granddaughter or assuaging the pain that she's gone through," Bird said. "I can't even ask her to understand how difficult it is to do what we have to do."
Sitting beside Bird at the table was Steven H. Shiffrin, a professor of law at UCLA and an avowed Bird supporter. Last fall he spoke for 255 law professors from around the state who endorsed the idea of an independent judiciary free from short-term political passions.
"The framers (of the Constitution) were right in saying that we ought to have a branch of government that is responsive to public opinion, in which there are periodic elections," Shiffrin said. "And they were also right in saying that there are some values that are so important that we want independent decision-makers to decide on the merits apart from power, money and public opinion."
He said the current situation in California "forces you to ask whether or not elections of judges are a good idea, whether or not you can maintain a judicial process and a political process and marry them and come out with a good result." He said the retention-voting system should be scrapped.
Bird, however, said that despite her difficulties, she favors retaining elections of judges as a means of fostering dialogue on the role of the judiciary. "The people may decide that they want a judiciary that is full of politicians in black robes," she acknowledged.
But she wants an opportunity to combat the idea "that somehow there is one way to do it, one result, and that is the only way it can be done, and that is the only kind of person who ought to sit."
"Lock-step justice is what they're interested in," Bird said of her opponents, "not in any kind of a thoughtful process." They have an idea "that there is a Truth, that there is one way to look at things, there is no room for any diversity, there's no room for any dissent, there's no room for a concurring view. There is one view, one truth, and you want those people (the judges) to reflect that view and that truth before any facts come before them, before any issue comes before them, before they've sworn an oath of office."
Shiffrin said he thought retention elections for appellate judges were tantamount to a referendum on the Bill of Rights and that if Bird loses, all judges in the future will be looking over their shoulders, deciding cases with an eye to the electorate.
"My fear is that constant retention elections, fueled by dollars from politicians on either side, ask too much of the people," he said. "I think the founders were right in thinking that if you put the Bill of Rights up to majority vote on a periodic basis, the rights are in danger."
Bird disagreed with him. "If the people ultimately do not believe in the Bill of Rights," she said, "you're not going to have them. It's a losing proposition. So maybe we haven't gone out and had each generation talk about why we have the Bill of Rights."
Noting that federal judges are appointed for life, Bird said, "It's interesting to have at the federal (level) a different system and have at the states an experimental system that's quite different. I'm not sure that isn't so bad."
"We could agree on this: If we are going to have it, I'd rather have it at the state level than at the federal level. I'd also rather that it be some other state."