Voters Repudiate 3 of Court’s Liberal Justices

In a historic rout, the state’s voters have repudiated three justices of the California Supreme Court, rejecting Chief Justice Rose Elizabeth Bird overwhelmingly and, by a lesser margins, two other members of the court’s liberal majority, Associate Justices Joseph R. Grodin and Cruz Reynoso.

Bird, the first woman to head the state Supreme Court, became the first chief justice in the modern history of the court to be voted out of office.

The defeat of the three justices set the stage for a Republican governor to appoint a majority of the court for the first time since the Great Depression.

Appointed in 1982, Reynoso was the first Latino member of the court.

Three other members of the court who were on the ballot were winning easily. The three, who did not face organized opposition, are Associate Justices Stanley Mosk, Malcolm M. Lucas and Edward A. Panelli.

After nine years in the job, Bird fell victim to a multimillion-dollar campaign that focused on her long record of voting to overturn death sentences. Bird’s “box score,” as it came to be known, of 61 reversal votes in 61 capital cases became a constant refrain of the campaign against her.

Reynoso, with 46 votes to reverse in 47 cases, seemed safe for awhile, and Grodin with 40 votes to reverse in 45 cases, appeared safer, but a strong television push by opponents during the last month of the campaign kept their names before the voters, insisting that all three justices needed to lose if the death penalty is to be enforced.

The verdict of the voters was clear to Bird an hour and a half after the polls closed and she conceded defeat from the court’s Los Angeles office. Opening her remarks on a jaunty note, Bird said:

“Let me first address an issue which was raised with me earlier and a question I suspect was on the minds of some of the press as well: how am I taking this? My answer is, just like a man.”

Then, she grew more serious, urging her supporters to continue to fight for the kind of court she said she represented.

“Let me say something to the millions of California voters who voted today to retain the justices on the Supreme Court and who specifically voted for me,” she said. “I want to thank you very much because I know you believe very deeply in the ideal of justice and believe it is possible to have it as a reality in this day and age.

“I appreciate that some people within our state are impatient, impatient to see executions, but I say to those who voted for us today, that although my voice will go silent, yours will not. You still can fight for the principles that we stood for in this campaign. You still can fight to ensure that we retain this house of justice. I don’t think anybody in this state will sit easy if in fact this becomes a court that ensures nothing but executions to appease the overweening and insatiable appetite of ambitious politicians.”

TV Campaign

Although Bird did not raise half the amount of money collected by her opponents, she was able during the closing weeks of the campaign to rival their output of crucial television advertising. But her low-key commercials, stressing the need for a judiciary that can make unpopular decisions in the face of intense political pressure, apparently was no match for the emotional appeals of her opponents.

The hallmark of the campaign against the justices was the somber face of Marianne Frazier, the mother of a murdered 12-year-old girl, sitting beside a framed picture of her daughter and asking voters to defeat the three justices who had voted to overturn the killer’s death sentence.

Bill Roberts, the veteran political consultant who helped mastermind the campaign against the justices, attributed Bird’s loss to a widespread dissatisfaction with the judiciary that is especially acute when it comes to criminal justice.

“The public is very unhappy with the judicial system generally,” Roberts said.

“Too much attention has been paid to the needs of the criminals and not enough consideration has been given to victims and the general public.”

Period of Stability

Roberts also said he hoped that the governor would appoint another woman to replace Bird and a Latino to replace Reynoso. Although Bird narrowly escaped losing in 1978, the last time she was on the ballot, her defeat Tuesday, coupled with the ouster of Reynoso and Grodin, signals the end of a long period of political stability for the court. The defeat of three of the court’s five liberals could also mark the end of a judicial era in which the California court gained a national reputation for its decisions upholding the Constitutional rights of criminal defendants and expanding the rights of injured consumers to sue for damages.

Before Tuesday, no justice had been voted out of office since the method of electing justices was changed by a state Constitutional amendment in 1934. The amendment put an end to contested elections to all appellate courts in an effort to insulate the judiciary from political pressures. After 1934, high court justices continued to stand for election after appointment by the governor. But they did not run against anyone.

$10-Million Campaign

The election year juggernaut aimed at Bird, Grodin and Reynoso enlisted some of the state’s most shrewd political operatives to fashion a $10-million campaign that capitalized on the passions of an increasingly conservative public that heavily supports the death penalty.

Behind the scenes were strategist Roberts, who helped manage Ronald Reagan’s first campaign for governor in 1966, and the consulting firm of Butcher-Forde, whose command of direct-mail fund raising helped pay for the success of the 1978 Proposition 13 tax limitation initiative.

In late 1984, under the auspices of a group called Californians to Defeat Rose Bird, Butcher-Forde began generating a direct-mail drive against the justices that eventually reached an estimated 6 million residents.

According to spokesmen for Californians to Defeat Rose Bird, it was the 150,000 people who responded to the mailed solicitations with donations of $100 or less who provided the financial backbone of the campaign against the justices.

Middle-Aged, Conservative

Stuart Mollrich, who presided over the direct-mail drive, said that most of the contributors make annual salaries of $30,000 to $50,000. Mollrich said they tended to be middle-aged, politically conservative and more likely to be residents of Southern than Northern California. He characterized many of the givers as small businessmen and women, “the kind of people you’d see running an ABC plumbing or an ACE real estate brokerage,” he said.

Mollrich’s profile contrasts with the view of court supporters who argue that the campaign against the justices is the product of big business and its allies in state government.

Campaign spending reports, so far, have indicated that most of the money raised against the justices has come from individual contributions of less than $100. On the other hand, a sizable chunk of money has come from corporate interests including agribusiness, oil and gas, real estate, insurance and auto dealers.

In September, 1985, Roberts organized Crime Victims for Court Reform, made up of politicians, law enforcement officials and, most importantly, about 300 crime victims. In most cases, the members of the group were close relatives of actual crime victims. Their job, in a long-running series of personal appearances, press conferences and television commercials, was to fire up public outrage at the justices for overturning so many death penalties.

Some Democrats Silent

There were other groups, including one started by conservative state Sen. H. L. Richardson (R-Glendora), and other factors in the campaign, not the least of which was the refusal of prominent Democrats such as Los Angeles Mayor Tom Bradley and U.S. Sen. Alan Cranston, to defend the justices.

One of the most potent influences was a statewide television blitz by Republican candidates led by Gov. George Deukmejian, who at virtually every campaign stop urged voters to oust Bird and who eventually announced his opposition to Grodin and Reynoso as well.

Bird was losing before her campaign began, according to at least one public opinion poll that showed her trailing by five percentage points in February, 1985. It was also evident that a chief justice’s traditional base of support was softer than usual, with polls of Bar members in San Francisco and Sacramento showing significant opposition and with several law professors around the state publishing critiques of Bird.

The chief justice’s early handicap was not surprising given the public’s pronounced preference for the death penalty, Bird’s reputation for dogmatic liberalism and truculent leadership, and her opponents’ unrelenting attacks on her. Indeed, the campaign to oust Bird never really subsided after her first reelection battle in 1978.

Confusion From Outset

It was clear to her supporters that a strong defense would have to be mounted to protect the chief justice and other members of the court identified with her. Yet, there was confusion from the outset as to how to conduct a vigorous campaign that would not drag the high court into a political mud bath. That confusion dogged the campaign to the end.

Early on, two approaches were recommended. One called for a committee of lawyers and friendly politicians to campaign on behalf of the justices who would stay out of the fray. The other called for those justices targeted for defeat to run a joint campaign under the banner of judicial independence. Such an approach, it was argued, would draw a broad base of support, including people who might be critical of one justice but who would come to the defense of an imperiled judiciary.

Bird rejected both approaches. To ensure an honest, upright campaign, Bird said, she must run it herself, leaving the other justices to fend for themselves.

With Bird in charge, however, the campaign still seemed to lack direction. By turns, Bird was criticized for doing too little and for saying too much.

There were months of inactivity, followed by brief flurries of campaigning. Her speeches varied in tone from fiery attacks on politicians to secular sermons against materialism and the “bankruptcy” of conventional politics.

Blast at Meese

She led off her campaign with a roundly criticized blast at U.S. Atty. Gen. Edwin Meese III, a former Californian. Referring to him as “Eddie Meese,” Bird said he had spawned the movement of right-wing “bully boys” out to do her in. To many, it sounded like the sort of mean-spirited rhetoric Bird had said she would avoid by running her own campaign. She closed out her campaign by arguing that her most powerful foe, Republican Gov. George Deukmejian, wants to turn the Supreme Court into “a house of death” and parlay a string of executions into a national political career.

Bird spent most of the money she raised--which aides estimate at about $2 million--on a series of television commercials that stressed her “backbone” and “integrity” but hardly touched on her main message: that conservative politicians were exploiting public passions over the death penalty in order to gain control of a court that was too “progressive” for their tastes.

Bird hired and then dropped three campaign consultants, with one of them, a Santa Monica firm with ties to actress Jane Fonda and with Sandinista sympathies, employed long enough to reinforce the opposition’s charge that the state’s chief justice was an avowed leftist.

Bird rebuffed numerous offers of help, refused to set up a reelection headquarters and, by the start of 1986, had a campaign organization that consisted of one full-time employee working out of a Los Angeles office, the address of which was a secret.

Promising Start

Financially, Bird’s campaign got off to a promising start, raising $1 million by the end of last year. Then, the fund raising all but stopped. During the first six months of 1986, Bird raised just over $100,000. During the same period, one in which most polls showed her slipping from 13 to 20 percentage points behind, she made only a few campaign appearances. Indeed, between May and September, to the consternation of her supporters, Bird made only two speeches.

Late in the summer, the campaign’s seeming inertia provoked a close friend of Bird to speak out against her publicly.

Florence Bernstein, herself a Los Angeles Superior Court judge, said that Bird’s “destructive, pathological suspicion” and need for “complete control” caused her to run an isolated, ineffectual campaign.

Concluding that Bird was beaten, the two major opposition groups, Californians to Defeat Rose Bird and Crime Victims for Court Reform announced in late June that they would begin focusing harder on Grodin and Reynoso.

Free to run their own campaigns, the two associate justices recruited the kind of Establishment backing that Bird eschewed. Their supporters included Los Angeles lawyers Warren Christopher and Shirley Hufstedler, both of whom served in the Administration of former President Jimmy Carter.

Grodin and Reynoso each raised close to $1 million for fall television commercials that emphasized the fact that each has voted to impose the death penalty while not mentioning the infrequency of those votes.

Focuses on Support

Grodin, who joined the court in 1982, positioned himself as a moderate, focusing attention on support that he, a former labor lawyer, received from a number of corporate management attorneys and from at least two law enforcement groups.

He frequently reminded audiences of his opinions limiting damages that can be awarded in medical malpractice cases and strengthening law enforcement’s hand in conducting searches.

Moreover, he was sympathetic to arguments that the court might have become too liberal for the times, saying at one point, “we’ve got to do a kind of cautious rethinking about where we are going with some of the precedents set during the ‘60s. I guess that implies a court that is not going to be as boldly creative.”

Supporters of the justices feared from the outset that, of the two associate justices marked for defeat, Reynoso would be the most vulnerable, because of his Mexican heritage and because his record on voting against death penalty reversals more closely resembled Bird’s.

Attacked for his liberal record on the court, Reynoso, who was appointed in the same year as Grodin, did his best to appeal to conservatives by stressing his strict religious upbringing and his summer labor as a boy tending crops.

Boldest Defense

Of the three justices, however, Reynoso, who is the first Latino appointed to the court, made the boldest defense of the court’s Populist reputation for upholding the rights of minorities, poor people, tenants, workers and consumers.

In the closing days of the campaign, with the polls indicating steadily eroding support for Grodin and Reynoso, the two worked to distance themselves from Bird. Grodin took issue with Bird’s attacks on the governor, despite the fact that Deukmejian, who had endorsed Grodin for the high court, came out against him this year.

And both Grodin and Reynoso turned down offers of financial help from Bird.