Bird Lacks Qualities to Be Chief Justice

As Californians approach an election in which they seem ready to oust a chief justice, it is fitting that they hesitate and make certain the act is justified.

And if it is, does proper cause also exist for rejecting one or more of the other justices on the ballot?

These questions require deciding, in the first place, what kind of reasons good citizens ought to have for voting no on a Supreme Court justice.

On one side, defenders say the justices should be confirmed unless they are “incompetent,” in the narrow sense of being criminal, unethical or unable or unwilling to do the work.

This standard is too narrow. California has a Commission on Judicial Performance to deal with incompetent judges. Virtually any justice can pass this minimal test and passing it does not assure that the justice has the public’s confidence.

Public confidence is what the framers of the California Constitution wanted to ensure, I think, when they rejected the federal model of life tenure and chose instead a balanced system of 12-year terms and yes-or-no retention elections for California’s justices.

The narrow competence standard amounts to telling the voters that, although the ballot asks them whether a justice “shall be elected,” there is only one answer they properly can give. The voters won’t buy that and they shouldn’t.

On the other side, opponents say it is proper to vote against a justice simply because you disagree with his or her decisions--because you are conservative, for example, and find the justice “too liberal.”

This claim is not so readily dismissed. No one can say with a straight face that the California Supreme Court simply “follows the law.” Quite often the court makes the law--and policy as well. To tell the people that, however much they dislike the policy being made for them, they should not be using an election to try to replace the policy-makers, is not easy in a democracy.

Yet it is worth doing. The California Supreme Court does not just make policy. The court must protect the rights of individuals and minorities against the majority and must apply the law, however unpopular it may be. These tasks require insulation from the majority’s will.

Under the present system, moreover, the justices often get far less than the 12-year terms that the state Constitution supposedly gives them.

Not only do they have to appear on the ballot initially within four years after appointment, but frequently they are appointed to fill out unexpired terms and therefore have to appear again four or eight years later. Justice Cruz Reynoso, for example, was on the ballot in 1982 and is back this year.

In this framework, if justices were rejected simply for their results, they might find it hard to reach results that were not affected by the desire to save their jobs in the next election.

So I favor a middle standard. Voters should not vote no unless they conclude that the justice lacks judicial qualities. Voters should ask, for example: Has the justice shown impartiality, fair-mindedness and good judgment? Has the justice been a referee or a player with a policy agenda? Has the justice respected the limits of judicial power or been too ready to write his or her personal views into the law?

Applying this standard, the voters will be amply justified if they deny confirmation to Chief Justice Rose Elizabeth Bird.

The centerpiece of the case against Bird, her death-penalty opinions, is unsavory but solid. Bird’s 61 votes to reverse the penalty in 61 cases amount to a refusal to enforce the law.

Bird’s performance in other cases, if not so stark and striking, is no less troubling. In the crucial 1982 reapportionment case, for example, Bird led a 4-3 majority that backed the Democrats, enabling them to lock up the state Legislature for the 1980s. The ruling, based on loaded logic and failing to follow the court’s unanimous decision of 10 years earlier, in my view showed political partisanship on Bird’s part. At the least it showed bad judgment.

Also revealing on the question of Bird’s fairness is where she got the decisive fourth vote in the reapportionment case. She got it from a temporary justice she herself selected. A study of Bird’s temporary appointments shows that her appointees made the difference in a half-dozen important cases, and that every time they swung the result her way.

For these and other reasons, I conclude that Bird lacks the judicial qualities needed in a Supreme Court justice--especially in California’s chief justice.

What about the other justices under challenge? Reynoso, Joseph Grodin and Stanley Mosk have their weaknesses. But each has positive qualities as well, and none comes close to matching Bird’s deficiencies. Mosk dissented in the 1982 reapportionment case, and neither Reynoso nor Grodin was on the court at that time. Moreover, none of the three has the special status and power of a chief justice.

Giving full weight to judicial independence, I can’t find that any of the three flunks the test of judicial qualities.