What Will Be Effects of Political Fray Over Bird? : Supreme Court: An Ominous Question

It has been a lopsided battle of freakish proportions.

For eight years, critics of the California Supreme Court have been trying to get rid of Chief Justice Rose Elizabeth Bird and other members of the court’s liberal majority. In the last year alone, at least $10 million has been spent, most of it by opposition groups, in the drive to unseat Bird and Associate Justices Joseph R. Grodin and Cruz Reynoso.

Gov. George Deukmejian has joined the attack, and so has just about every other Republican candidate in the state this year. Even President Ronald Reagan has squeezed off a volley or two at the chief justice.

Since early in 1985, public opinion polls have held out little hope for Bird. And recently, the polls have begun to signal trouble for Grodin and Reynoso.

Whatever happens in the election, whether a justice is unseated for the first time in 50 years, whether a conservative majority is appointed for the first time since the 1930s, the court already has sustained a heavy blow to its reputation as a national model of judicial stability--as an institution apart from politics.

Moreover, the court’s new-found political insecurity raises an ominous question about the future of the judiciary. Can an institution, created in part to check the excesses of a majority, remain effective when it becomes vulnerable to the majority’s displeasure?

Both friends and foes of the current court worry about the prospect of justices tempering their decisions to avoid arousing political predators. “It is hard to ignore the alligator in your bathtub,” said former Supreme Court Justice Otto Kaus, when asked if justices will be able to render unpopular decisions if they risk making dangerous enemies in the process.

At the center of the storm over the court is Rose Bird, the state’s first woman chief justice, and her uncompromising stand on the death penalty. She has voted against its imposition in all 61 capital cases that have come before her.

A former public defender who had never been a judge, Bird was an unorthodox appointee of an unorthodox governor, Edmund G. Brown Jr. At a time when much of the state and the nation was taking a hard right turn, Bird has had either the grit or the gall to proclaim a populist view of the law, not only on behalf of criminal defendants but of consumers, tenants, workers, minorities, welfare recipients and old people.

The court that Bird has presided over for the last nine years has come to be identified with decisions availing indigent women of state-funded abortions, granting public employees the right to strike, rejecting Republican-inspired reapportionment plans, chipping away at Proposition 13, the popular tax limitation measure, and of expanding the rights of injured people to collect damages from private companies and public agencies.

Court Moved to Right

But often lost in the campaign rhetoric is the fact that the court was known for its liberalism long before Bird was appointed and that, recently, the court has moved toward the right in opinions in at least two areas. It has limited cash awards in medical malpractice cases and strengthened police powers of search and seizure. (Bird dissented from the majority in both those areas.)

The drive to oust Bird and other liberal members of the court spans two elections and several recall attempts. It all started in 1978, when Bird was first on the ballot. She squeaked by with 51% of the vote, and four years later, three other justices appointed by Brown survived another offensive.

While the latest campaign against the court has attracted broad support, the leadership has always had a pronounced conservative flavor, with such prominent figures as right-wing state Sen. H. L. Richardson (R-Glendora); Howard Jarvis, the late sire of Proposition 13; former Los Angeles Police Chief and now state Sen. Ed Davis (R-Valencia), and Republican campaign strategist Bill Roberts.

Conservative Rallying Cry

From the beginning, their rallying cry has been that the court is soft on crime. Over the last nine years, the court’s long record of death penalty reversals--58 in 61 capital cases--set the stage for a single issue campaign in 1986. Bird’s unblemished record of reversal votes made the best target. But the opposition also took aim at Reynoso’s record--46 votes to reverse in 47 cases, and at Grodin’s--40 reversal votes in 45 cases. (Both Reynoso and Grodin have only been on the court since 1982 and have participated in fewer cases than Bird.)

Accused of basing their reversals on technicalities, the justices argue that the defendants in these cases were deprived of fair trials.

The crafters of the 1986 campaign have been effective, partly because they have let crime victims, as opposed to politicians, make the case against the justices, and partly because the public was more receptive than ever to their message.

Recent public opinion polls have consistently shown that growing numbers of Californians, 70% to 80%, favor the death penalty.

Of the three leading groups raising money against the justices, Crime Victims for Court Reform has dominated press conferences and television ads with its volunteer army of bereaved survivors taking to task the court that has spared the lives of their children’s killers.

Grief and Rage

Their grief and rage has lent the campaign a moral armor that has protected it from its many miscues, the worst of these being the false charge that convicted murderers have gone free once the court reversed their death sentences. To date, none of the defendants in death penalty cases decided during Bird’s tenure has been released from custody, although there is no guarantee none will go free in the future.

Indeed, the principal theme of the campaign against the justices--that they are soft on crime--is subject to question.

The opponents argue that Bird, Grodin and Reynoso have reversed 80% or more of all convictions in criminal cases that they have reviewed. But that statistic does not include convictions that the justices declined to review and that, as a result, were automatically affirmed. If those cases are counted, the statistic is stood on its head, and the justices wind up with a conviction rate of well over 80%.

Defenders of the court have tried to counterattack on a different front.

Bird contends that the rhetoric about crime and the death penalty is a ruse to divert attention from her opponents’ real agenda. She says the governor and his friends in big business want a conservative court that will do their bidding in civil cases where money is the issue.

Thousands of Contributors

The problem with Bird’s theory is that most of the money fueling the campaign against the justices came, not from corporate coffers, but from thousands of individual contributors each giving less than $100. Such copious grass-roots support makes it harder to dismiss the argument that the public is repudiating the court, or at least Bird, on the basis of its widely publicized death penalty record.

In many ways, the justices have been hamstrung in their efforts to defend themselves. Judicial canons restrict what they can say on the stump. Constitutional theory does not lend itself to 30-second television commercials. The three justices have not always agreed on how best to conduct their campaigns. Bird’s insistence on going it alone dismayed many supporters and shut down an early movement on behalf of all three justices.

Moreover, Bird’s reputation for judicial extremism and contentious leadership cut into her base of support among lawyers and judges well before the campaign began.

As court observers wait for the election results, some argue that the court can withstand the defeat of one justice. If, for example, Bird goes down by herself, they say, there will still be a liberal majority, and the election will represent more of a glitch, rather than a major change.

Court Might Lose More

But if more than one justice is defeated, the court might lose more than its leftward tilt.

“If a man as basically moderate as Joe Grodin is knocked off, who knows what kind of court we will have?” former Justice Kaus asked.

“You won’t have any trouble attracting judges who want to be politicians to that kind of court,” Kaus said. “But will you attract judges who want to be judges? That’s the question.”

Others say that while a purge of the justices may lead to temporary instability on the court, it is a necessary price to pay for a court that, for years, has forfeited any claim to political neutrality.

“The court may have acquired enormous stature among the intellectuals and the law schools,” said one Court of Appeals justice who asked not to be named. “But it hasn’t had a lot of credibility with the average citizen. Restoring that credibility is what this election is all about.”