The Campaign That Couldn’t Win: When Rose Bird Ran Her Own Defeat

“It wasn’t hers to lose,” I thought, as I watched lopsided returns come in on Chief Justice Rose Bird’s confirmation. I had been more than a casual observer; our firm had managed her campaign from February to July, 1985.

The story of why she first chose and then rejected us, the kind of campaign she eventually managed herself and her resounding defeat speak volumes about the contradictory character of Rose Elizabeth Bird and the twisted political process that has become our electoral system.

Bird came to us because we have a reputation for effectively representing progressive candidates and because we are well-known for crafting highly emotional positive and negative commercials.

When we first met, Bird told us that she had reluctantly decided a full-blown political campaign would be necessary to win confirmation, that the cornerstone of the campaign would have to be television commercials and that she was prepared to fight fire with fire in terms of rousing public support with dramatic and emotional commercials.

It didn’t take long to recognize several characteristics about the chief justice we found very appealing. To a degree rarely seen in a public official, Bird put the people’s good before her private concerns, maintained absolute standards of honesty, of integrity and, contrary to her public image, was disarmingly open and personable.

We set to work. There were two immediate priorities: craft a message that would move voters and raise the money required to deliver it. We hired Linda Feldman to manage the day-to-day affairs of the campaign and launch a number of major fund-raising events that eventually brought in hundreds of thousands of dollars. We hired Ken Coplon to start a direct mail fund-raising effort which, if executed, could have produced money on the same scale. And we hired Patrick Caddell to conduct an in-depth survey of public opinion to give us the data we needed to develop a message.

That’s when the trouble started. Caddell’s findings underscored the central contradiction of the coming campaign. The California Constitution mandates that the judiciary not only remain independent of other branches of government, but that it reach decisions on the basis of law, without regard for political pressure and the changing tides of public opinion. The voters, on the other hand, by a margin of 68% to 24%, felt they had every right to reject sitting Supreme Court justices if they disagreed with their decisions.

To base a political campaign on the independence of the judiciary was to commit electoral suicide. Especially so when the survey also revealed effective offensive and defensive strategy. On the defensive side, there was ample evidence that the Bird court had been very tough on criminals in general, and public opinion could have been moved on this issue to blunt the attack of our opponents.

Offensively there were many possibilities. The public responded favorably to arguments that Gov. George Deukmejian was guilty of court-packing, that the Bird court had protected the public against infringements of rights held dear by a majority--including those having to do with abortion, clean air and water, labor and housing discrimination--and finally, that the drive to unseat the court was fueled by a combination of powerful corporate special interests and extreme right-wingers trying to shape decisions for their own benefit.

But Bird had decided to base her campaign solely on the independence of the judiciary--regardless of advice or data to the contrary. Furthermore, she objected to fund-raising events being organized by Feldman on the grounds that they positioned her as just another politician seeking reelection. Finally, when she saw the necessarily emotional tone of Coplon’s fund-raising letters, even though she had agreed to such content in advance, Bird simply refused to go on.

At the same time, there were problems about speaking to the press. Most candidates and political consultants are wary of what they say to reporters. Yet most candidates and consultants do talk to the press even as they try to put a favorable “spin” on what they say. Not so the chief justice. Never have I encountered a public official or candidate so reluctant to be interviewed or so suspicious of the motivation of reporters.

Since she wouldn’t talk, I had to. She had hired us early precisely because she wanted to signal her supporters that she was serious about winning, that she intended her television advertising to be as intense as that of her opponents. I said as much to the press, being careful not to reveal anything specific about her message for the campaign. Nonetheless she accused me of “revealing” her “strategy” and ordered me to have no further contact with the press.

Enough was enough, and we terminated our working relationship. Bird then hired John Law, a respected Washington political consultant, to take charge. At the end of his four-month contract, in October, 1985, he advised her to follow essentially the same course we had recommended; his contract was terminated as well.

Thus did Bird launch herself on the remarkably inept effort that became her campaign. For the duration, she had no campaign manager, no political consultant, no advertising agency, no pollster, no steering committee and no fund-raising coordinator. She managed all these tasks with the aid of a single paid press spokesperson, Steven Glazer, who seemed to be only occasionally informed about her activities. While the press made itself available to her campaign, she maintained a distant and hostile relationship with reporters that was not only uncoordinated but at times bordered on the bizarre. And although polling indicated that judiciary independence was the one message that would not work, she adopted it as the sole basis of her campaign.

It all begs the question, did she really want to win? Unfortunately, the answer is a resounding and unequivocal yes. In fact, few candidates I’ve met wanted to win more. It was precisely her desire to win that led her to insist on personal control over every aspect of the campaign, from the misguided message strategy to the floral centerpieces on tables at her July, 1985, San Francisco fund-raising dinner.

By mid-1986 she took the ultimate step. She wrote and produced her own commercials. Not surprisingly they were about the independence of the judiciary, and not surprisingly they had no effect on the vote. When that became apparent, instead of changing strategy or resigning to save the two other justices under attack, she railed publicly against political consultants for polluting the electoral environment and subverting the democratic process. It was the consultants, she argued, who had reduced political dialogue to 30-second television spots and negative imagery.

Attacking negative TV spots has become popular sport this season. But Bird forgot a few essential points. First, negative campaigns have been part of the American electoral landscape since the founding of the republic. Early American candidates regularly attacked each other for corruption, dishonesty, illegitimate children--even treason.

Second, a political campaign, like a trial in a court of law, has but one objective--to win. Staying within the confines of truth, a candidate or a political consultant, like a defendant or a defense attorney, will use every available legal means to attain that objective. The difference is that in court there is only one potential loser, the defendant. In an election, everyone who supports you, as well as everyone who has an interest in your election, becomes a potential loser.

Third, and most important, attacking negative campaign tactics is dealing with effect, not cause. Negative tactics are used--I use them--because they work. Negative TV spots work for one reason only: The portion of the electorate that is moved by them is woefully uninformed about political affairs. If they were properly informed, they would hardly be affected by mere video headlines or manipulated by such thin presentations of complex public policy issues.

And why then are so many voters so uninformed when the keystone of a democracy is an informed electorate? Is it the fault of the political campaigns and consultants who appear but briefly once every two to four years, or is it the fault of two institutions in our society charged with the mission of informing the citizenry--news media and public schools?

It is true that our schools do manage to graduate students who know that there are 100 members of the Senate and that the President has to sign a bill before it becomes a law. But are those same students given the tools to understand how complex public policy options evolve in our halls of government?

No, they are not. Worse, the very ideologues who press hardest for the teaching of good character and citizenship turn blue if you suggest we use schools to teach such fundamental knowledge as comparative theories of economics.

And the news media? On the Wednesday before this election, the late news on one network affiliate in Los Angeles ran a feature on an actress named Vanna White who serves as a human prop on a game show. The news hook? Her former career as a model of sheer lingerie. Meanwhile a competing news program offered a segment on “erotic” cars.

Thanks to our schools and press, we are now a nation where two-thirds of the eligible voters regularly stay home; according to a recent study, perhaps one-quarter of our adult citizens are too illiterate to read the news even if they were motivated to do so. Television, which reaches more people than any other medium, demeans news (and perhaps knowledge itself) with cursory glances at major world events and insistent coverage of the day’s high temperature at various reporting points around the city. Is it any wonder negative political commercials work in such an environment?

The absence of an informed electorate is why we must all suffer the sorry state of modern political campaigning, and Bird, of all people, should have understood that. Instead, she attacked effect rather than cause. Then in the closing weeks of her campaign, she finally turned loose on her nemesis, the governor. Among other things, she accused him of wanting to turn the Supreme Court into “a house of death” by his constant and narrow carping on the death penalty issue. House of death?

I didn’t object. I thought she should have done it earlier. But was this the same woman who was so adamantly attacking negative imagery in political campaigns?

Late in the campaign, my firm had been hired by a citizens’ group organized to defend all the justices up for confirmation. We created a very controversial TV commercial: An assassin was depicted assembling a machine gun out of paper money supplied by special interests funding the campaign to defeat the Supreme Court justices. As the assassin took aim at the justices, the narrator asked voters not to let the special interests “use this weapon” against the court.

Bird condemned the commercial. Would she also have condemned one constructed around the equally powerful image of a “house of death?” If so, how could she use the same imagery over and over again in speeches? If not, how could she stand by her critique of negative campaigning?

From this pinnacle of arrogance, Bird fell. She had insisted on managing her own campaign with no prior experience whatsoever--and in the proverbial words of the lawyer advising against the accused defending himself in court, she had a fool for a client. Slowly but surely, in pursuit of a very personal wish, she closed her eyes to reality, marched ahead to the beat of a drummer only she could hear and squandered her seat as well as the seats of two other fine supreme court justices.

But in the end it was not her seat or her court that was lost. It was ours. We lost three of the few public officials who had put our concerns before the politicians, the special interests and political expediency--among them the first woman and the first Latino on our Supreme Court.

Despite her integrity, her values, her commitment to social justice, it was by her disregard for the rest of us that we were deprived of all these, and of three valuable seats on the Supreme Court that had been won by the will and hard work of the people. They just weren’t hers to lose.