Retired Judge Wants to Write the ‘Great American Novel’

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Retired Orange County Judge Robert Gardner is still--at the age of 77--handing down verdicts as pithy and acerbic as those that were quoted frequently during his four decades on Superior Court and appellate court benches. Only now they tend to come out more frequently in conversation than as legal opinions.

In a Corona del Mar restaurant a few blocks from his Shore Cliffs home last week (“Hell, I can walk there”), he took a bemused look at his present work with a private arbitration and mediation service designed to ease caseloads by settling cases out of court. “The young lawyers don’t know me,” he said without rancor. “I’ve been gone from the local bench since 1969, so they pick other judges they know.”

He manages to keep busy, however, mostly by writing. “Retirement is a fate worse than death if you wake up with nothing to do. We don’t use old people in this society very productively. I’m just glad I have an opportunity at my age to be productive. I’d be terribly frustrated if I didn’t.”


So how could we deal more intelligently with our elderly citizens?

“Well, we could just kill ‘em off. During the three years I was chief justice in American Samoa, I learned about that system. You see, the main cause of death in the islands is fish poisoning. They get most of their food from the sea, but they never know what the fish have just eaten, and sometimes it’s poisonous. So before we took over, they’d try out the fish on the oldest person in the village. If he keeled over, then it was poisonous and the younger people didn’t eat it. That controlled the population nicely. Now they try it on wild dogs that they didn’t have until we introduced dogs to the islands. And the average life expectancy has jumped from 40 to 60.”

Whether the story is apocryphal or not, it is vintage Gardner, known among his appellate court peers as “No Way” Gardner because he tended to react in his opinions to tortured legal arguments by simply commenting, “No way.” This enabled him to dispose of cases about three times as fast as his associates. “That’s why as presiding judge,” he explained, “I took all the junk cases. My associates tended to treat them all as blockbusters.”

Also vintage Gardner are his querulous bushy eyebrows and his lean, weather-beaten face, earned by countless hours of body surfing. Both are still very much in evidence, along with a remarkable amount of physical and intellectual energy that tends to attack waves and ideas both frontally. A lot of his observations have been made before--mostly in Gardner’s own writings--but he has the vitality to make them all sound fresh.

Gardner was born in Washington state, brought to Orange County when he was nine months old and then taken to Wyoming several years later when his railroad worker father was transferred there. During the railroad strike of 1922, he was sent to Balboa to live with a sister--and never moved away from Orange County again. He seems to know most of the early pioneers by name, from bartenders to cops to movie stars.

Although he said he never knew John Wayne well, he did meet Wayne when the actor’s name was Marion Michael Morrison. “This loudmouth came through Balboa one Saturday night with a friend who looked as big as a barn and played football at USC. The smaller guy was telling everybody that his man could whip anybody in town. So we got out our local champion, and people formed a ring around these two guys. All the locals were betting on our champ, and the big talker was covering the bets. Well, our man lasted one punch. When he came to, I was the only one left, and I helped him home. A few days later, Morrison--or Wayne--broke his shoulder body surfing. That ended his football and started his acting career.”

Gardner launched his career at USC too. He got a law degree there in 1935 and took the bar exam that summer. He was so sure he had blown it that he shipped out on a freighter to China. He found out in mid-Pacific that he had passed, but it took him a year to get back and set up a law practice in Newport Beach. His performance as a defense counsel got him an appointment to the district attorney’s staff two years later. He also served as a part-time municipal judge until 1941 when he enlisted in the Navy, was assigned to Intelligence and ended up on the staff of Adm. Chester Nimitz. Oddly enough, that’s where he gained his greatest impetus to write.


Gardner’s original interest in writing came as a student of the fabled Frank Baxter at USC. But in the midst of World War II, he shared an office for six months on Saipan with an Air Force public relations officer named St. Clair McElway, whose work appeared for many years in the New Yorker magazine. “His dispatches were beautiful,” Gardner recalled, “and I wanted to write like him. He told me to do it persistently for 10 years, and then I’d be a writer. I’ve been doing it for 40 years and haven’t got there yet. Before I die, I want to sell some fiction.”

But first there was a legal career to pursue. After two years of postwar private practice, Gardner became the youngest Superior Court judge in California when he was appointed to the bench by then-Gov. Earl Warren. He spent 22 years as a Superior Court judge, and he counts those years as the best and most productive of his life. He served in Juvenile Court for six years and became strongly identified with juvenile rights. He believes everyone, regardless of age, should have identical rights, and he wrote voluminously about this, mostly in the old Saturday Evening Post. One of his articles was even quoted in a U.S. Supreme Court ruling.

His outspokenness and tendency to kick his way through legal underbrush got him in frequent trouble (“although I went 20 years without having a decision reversed”). He once released on his own recognizance a well-known local politician accused of conspiracy in a felony. The politician was re-arrested and Gardner was told he was finished on the bench if he released the man again. He promptly did so. “Hell, he wasn’t going anywhere,” Gardner said recently. “And later he was acquitted.”

The political right generally left Gardner, a moderate Republican, alone, but not altogether. After the House Committee on Un-American Activities had worked over an Orange County citizen who had been involved in some liberal causes with a Quaker church group, Gardner appointed the man to the grand jury. “He was well qualified,” Gardner said, “but this local committee came to see me and told me if I didn’t get him off the grand jury, it would be the end of my career. I threw ‘em out. But then the guy resigned because he said he didn’t want to be an embarrassment to me or the grand jury.”

Perhaps a mark of the even-handedness of his decisions is the fact that a remarkable number of people he has sent to prison have come back to talk with him respectfully and amicably. “I have a lot of friends in the pokey,” he said. “I have some bitter enemies there too. I may not be loved, but I am respected.”

That kind of personal contact went by the boards in 1969 when then-Gov. Ronald Reagan appointed Gardner to the 4th District Court of Appeal in San Bernardino. “That job,” he said, “could have been the dullest in history. It’s about as useful as buttons on a sleeveless jacket. We spend most of our time spinning wheels and usually end up confirming the trial court. The only saving grace is that I dealt with cases so fast that my calendar was always clean.”


So why did he accept the job?

“Ego,” he answered simply. “It was a pure ego thing.”

He got around the dullness of reading endless legal transcripts by spending one day a week in San Bernardino dictating his opinions and picking up the current file of cases. Then he would go home and work at his kitchen bar or--more frequently--at the beach. Then-Chief Justice Rose Elizabeth Bird, he recalled, “wanted to know why so many of my cases arrived at the Supreme Court with sand dripping out of them.”

In 1981, Gardner said, “they threw me a fish”--meaning he was forced to retire from the bench at age 70. He didn’t stay retired very long. A year later, he was appointed chief justice of the High Court of American Samoa. He and his wife, Kathryn, spent three years there (“it was sort of like being a king”) before returning to Corona del Mar where the restless Gardner poured himself into private judging and writing. He decidedly prefers the second, dividing his time between a weekly column he does for Orange County Business First and fiction.

“All of us,” he said a little wistfully, “have our great American novel. I’ve been working at it a long time without success. I’ve written some Westerns that were pretty awful. But I’m also a history nut, and I’ve been working more in that area lately. I don’t have an agent. I’ve tried, and nobody wants me so far. But just last week I got my first real encouragement on a novel. I sent a publisher a letter of inquiry with one chapter, and they want to see the whole book. So maybe. . . . “

Meanwhile, Gardner plays golf and still body surfs, “although now I want warm water and five-foot waves and prefer to sit on the beach and tell the young ones how it was. Mostly they’re both patient and tolerant with me.”

Gardner spoke out passionately against drugs when he served in Superior Court 20 years ago. How does he feel about the drug problem today?

“There’s been no improvement. As a matter of fact, it’s much worse today--and as insoluble now as it was then. The biggest difference between that time and now is that I was dealing primarily with losers. Now drugs cut through every strata of society. It’s a terrifying thing, the biggest social problem we have. I believe in tough law enforcement but that isn’t doing the job. We’ve got to have a look at anything that might help, including legalization. I’m certainly not advocating it, but I think it should be examined. The violence comes when drug users want something and can’t get it.”


How about the recent flap over the election of judges and the ouster of Chief Justice Bird and three of her associates?

“Bird had to go. I knew and liked a lot of those people, but they were flouting the law. But I’m ambivalent about the election of judges. As a sitting judge, I like lifetime appointments. But I’ve seen some of those judges get arrogant and lazy. As long as the party in power changes every eight years, the political appointment of judges is OK. The problem is when one group stays in power too long. I guess I’m opposed to longtime appointments with no control.”

On the Orange County political scene, he noted that “nobody appreciated the power of the John Birch Society. We never really took them seriously. They work fanatically hard. But the most effective legislators from Orange County have been moderates.”

Does Gardner have confidence in the ability of the American electorate to make responsible decisions when given the facts?

He smiled. “We seem to come up right most of the time,” he said. “Like a jury.”

Although Gardner has lived in Shore Cliffs for 37 years, through one of the more remarkable real estate booms in American history, he said he hasn’t profited beyond the appreciation in his own home.

“I have the golden touch with investments,’ he said sardonically, “meaning no commercial ability at all. I sold a house for $19,000 in 1949 I’d bought several years earlier. Made a small profit and felt pretty good. That house sold last year for $375,000. Myford Irvine, who was a friend of mine, wanted me to have a lot in Irvine Cove, so I bought one for $7,000, had all kinds of second thoughts and sold it a few months later for a $300 profit. It’s probably worth $1 million today. I even told my wife she must be out of her mind when she bought our lot in Shore Cliffs for $4,000.”


But none of those things seems very important in Bob Gardner’s life today. He suspects he has a long time left to sell that first novel, and he’s not altogether happy about that.

“If you want to live a long time,” he said, “it’s very simple. All you have to do is pick your ancestors carefully. All four of my grandparents and my parents lived into their 90s. I can’t think of anything worse. I don’t look forward to longevity at all. The harsh realities are that I’m not going to be very sharp at 95. I’ve been lucky so far, but I don’t want to push my luck.”

He paused, thought about that a moment, then brightened. “Oliver Wendell Holmes was pretty sharp in his 90s. And come to think of it, I could still try a case with anybody today. I’m probably not as sharp, either mentally or physically, as I was, but I could hold my own.”