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California’s Chief Justice A Victim of Symbolism

October 21, 1986

SAN FRANCISCO (AP) _ A bumper sticker spotted in California sheds some light on Rose Bird’s problem with the public.

″Free the Night Stalker. Elect Rose Bird,″ it says.

In fact, Richard Ramirez has not yet gone to trial in the Los Angeles ″night stalker″ killings, much less been convicted or sentenced to death. And none of the convicted murderers whose death sentences Rose Bird has voted to overturn - joined, in all but three cases, by a majority of the state Supreme Court - has gone free, or is likely to go free anytime soon.

No matter. The chief justice of California has become a symbol to opponents - of soft, criminal-coddling judges; of legal ″technicalities″ that set criminals free, and of liberalism in a conservative era.

Her inability to shed that symbolism is what has made it virtually impossible for Bird to dent her overwhelming deficit in opinion polls for the Nov. 4 election, two days after her 50th birthday, no matter how she replies to opponents’ charges on the death penalty, lack of prior judicial experience, and political bias.

The first woman in the Santa Clara County Public Defender’s office, the first woman in a California governor’s Cabinet, and the first and only woman ever appointed to the state Supreme Court appears likely to become the first justice of either gender removed by the voters in the 50 years of nonpartisan retention elections. A Los Angeles Times poll published Tuesday said 60 percent of the 1,594 registered voters surveyed would vote no on Bird’s reconfirmation, 31 percent would vote yes and 9 percent were undecided.

Probably even a skillful, professionally run campaign could not have saved Bird’s job. But that will remain a mystery.

The chief justice has hired and fired several political consultants, and now is conducting her own $1 million campaign. She even writes her own 30- second television commercials, which amount to brief lectures on the court’s role.

″I shouldn’t go to some political manipulator, some political consultant, and have them go to a pollster and find out what emotional button to push, and then trick them into voting for me,″ she says.

The statement is vintage Bird: uncompromising, apparently unconcerned with the consequences.

Her approach to the election has led her into several avoidable political missteps - notably, a much-criticized attack on the U.S. attorney general as ″little Eddie Meese″ - and left potential supporters frustrated by their exclusion from the campaign and fearful of a landslide that would sweep away other justices.

To her opponents, Bird’s defeat would mean the removal of the state’s major obstacle to the death penalty and other expressions of the people’s will. To Bird, it would mean that future justices would be expected to ″kneel to the governor, kneel to the special interests.″

To California, it would mean the end of a remarkable and turbulent chapter in its legal and political history.

It started in 1977 when Gov. Edmund Brown Jr. picked Bird, his Agriculture and Services secretary and former campaign driver and volunteer, to succeed the retiring Donald Wright as chief justice.

Bird had never been a judge, having spent most of her 10-year legal career as a public defender. But that was far from unique - the court’s most renowned chief justice, Roger Traynor, and such U.S. Supreme Court justices as Earl Warren and William Rehnquist were not judges before their appointments.

There were outcries from the farm industry, which had clashed with Bird over her banning of the short-handled hoe and her work on the state farm labor law, and from many prosecutors. But Bird survived a difficult confirmation fight.

She took some actions reminiscent of Brown, selling the court’s limousine, turning down a pay raise, and moving state Judicial Council meetings from resorts to big cities. She also made court hiring more competitive, assigned trial judges to fill temporary vacancies on appellate courts, and broke the power of a veteran staff that had been administering the court system for years, while bringing in her own group of trusted aides.

Many of these moves were bitterly resented within the court system, a response that may have been aggravated by Bird’s habitual bluntness and by her relative youth - 40 - and her status as a woman in a traditional men’s club.

On a court that had long worked in obscurity and won re-election routinely, Bird quickly became well-known and controversial. She barely won voter retention in 1978, with a record-low 51.7 percent majority, and immediately plunged into new turmoil by ordering public hearings to investigate allegations that rulings had been improperly delayed to help her election.

The investigation found no wrongdoing, but revelations of petty feuds and mistrust proved a major embarrassment to the court. Even some admirers of Bird say the episode seriously damaged the court’s elite reputation.

″Part of the prestige of any court is a combination of its majesty and its mystery,″ said John Oakley, a former clerk for Wright who now teaches law at the University of California at Davis and supports Bird’s retention. ″I think people learned more than they ever wanted to know about the inner workings of the court at a time when they were the least collegial in recent times.″

Expressions of hostility toward her have been unrelenting. Death threats have prompted her to move her mother out of the home they shared in Palo Alto, cancel a recent speech and alter her routine in going to work.

Her concurring opinion in a rape case produced letters suggesting she should be raped. A man whose daughter had been killed, a case that has never reached the Supreme Court, sent Bird a public letter saying her attitude toward the death penalty could be changed by ″a single bullet,″ words that grew more ominous when the same man entered a San Francisco courtroom and shot and wounded the man charged with murdering his daughter.

On another level, after Bird’s third operation for breast cancer in 1978, Robert Kane, a state appeals court justice who has since retired, gave two speeches calling for removal of the ″cancer″ on the court.

But most of the opposition to Bird is focused on her record as a judge.

She is clearly the current court’s most liberal member, though probably no more liberal than justices of the previous two decades like Traynor or Mathew Tobriner, neither of whom was ever seriously challenged in an election.

And to many of her opponents, only one aspect of Bird’s record matters: the death penalty.

She has voted to reverse all 60 death sentences she has considered, though she likes to point out that Wright, her predecessor, reversed about 180 death sentences in two rulings declaring death penalty laws unconstitutional.

Bird says she would vote to uphold a death sentence if she concluded the trial was fair and the law was constitutional. Opponents say she would never reach that conclusion.

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