A Bird Watcher Confesses : Taking Her Name in Vain Is Now De Rigueur, but the Ex-Chief Justice Made Exciting Law

If you only mostly followed the recent election campaign on TV, you might be excused for any confusion as to just who was on the ballot two weeks ago. Jerry Brown was up for something--I’m pretty sure the commercials said that. I think Bill Clinton was running for Congress in a few districts. But everybody seemed to be running against former California Chief Justice Rose Bird, though I could have sworn she’s been out of office for years--and we all know how much the crime rate has gone down since 1986.

It was hard to find a Pete Wilson ad without a pre-makeover Bird picture in it somewhere, and the governor seemed to mention her often in the gubernatorial debate, much like Dan Quayle brought up Jimmy Carter in the 1992 vice-presidential campaign. Michael Huffington also referred to Bird a lot, on the few occasions he spoke at all, though Dianne Feinstein has been canny enough to avoid being seen with Bird for at least a decade. The thrust of an unsuccessful campaign last spring to recall State Sen. David Roberti (D-Van Nuys) seemed tied to Roberti’s support of Bird. And Bird was the subject of at least half the congressional campaigns in the state. Now that the Evil Empire has been discredited for a while, Bird-calling is the closest thing to Red-baiting. Even Nixon took less time to rehabilitate.

Of course, I used to have something of a Rose Bird problem myself. I discovered her my first year out of college, when I found myself working alongside bar-exam casualties at the local legal newspaper, proofreading judicial decisions for the next morning’s appellate report, conforming cites, staring at a blurry screen until my eyes threatened to turn into tomato soup.

Like other proofreaders, I took pleasure in the gory cases that involved motorboat tragedies and trailer-park killings, but I always fought to get first crack at California Supreme Court decisions when they came in. A Rose Bird opinion, even a dissent on a product-liability case, was usually forceful, compassionate, intricately reasoned and fashioned with the kind of writerly craft that lawyers are probably conditioned to distrust. It was like finding a Jane Austen novel in a pile of Harlequin romances.

You could disagree with her conclusions, on the standard of evidence, on the racial composition of juries, but in the waning days of the Warren Burger court in Washington, it was hard to argue with the notion that the California Supreme Court was making exciting law. To tell the truth, my interest in Bird may not have been so different from my interest in the “Like a Virgin”-era Madonna thing that took over a couple of years later, except that I put up fewer posters on the wall at work, and I liked Bird’s record better. Tort reform may not be sexy, but its protections actually affect people’s lives.

Co-workers made fun of my “Bird obsession,” razzing her when she read her poetry in public, making sure I noticed when the paper ragged on yet another lead opinion on a death penalty case, groaning when she found for the plaintiff in a labor or real estate suit that they thought might prevent them from one day becoming as rich as the Bechtels. One Valentine’s Day, the boss taped a grainy photograph of Bird above my computer terminal, probably because he thought that her droopy sweater and uncombed hair were amusing. I threw away the paper heart he’d glued it to, but I kept the picture until the day I quit.

The 1986 campaign against her was inevitable. It was financed largely by insurance and oil companies who cared nothing about her death penalty rulings, and it was run in part by some of the same people who brought us the Willie Horton ad and the tobacco companies’ Trojan-horse “anti-smoking” initiative this year. Californians like to see murderers fry; that has been made abundantly clear. But like any modern pop hero, Bird was too cool to care, too cool to point out how her rulings protected individuals against giant corporations, too cool to talk about the Bird court’s role in preserving individual freedoms. Her stubborn anti-campaign was noble, even heroic in its way, but politics isn’t like the movies. The day after that election, I knew that California politics would never be the same.