Shaking the Judicial Perch

By Richard Lacayo

In theory, the judicial bench is supposed to be more like a perch, raised far above the turbulent political fray. In fact, with 40 states requiring that at least some judges be elected or confirmed at the polls, the courts are often a major target of voter grievances. This year the nation's most impassioned political campaign may be one aimed at a judge. Opponents of Rose Bird, California's first woman chief justice, are working hard to knock her off that judicial perch. It looks very much as if they will succeed in making her the first member of that court to be rejected under the 50-year-old confirmation law.

Once head of the state's agriculture and services agency and a former public defender, Bird, 49, has been a focus of conservative antagonism since 1977, when she was appointed by liberal Governor Jerry Brown despite a conspicuous lack of judicial experience. A year later she narrowly avoided defeat in a confirmation vote that California justices periodically face. In this year's election, her second, her situation is far worse. The most recent voter survey shows the chief getting swamped by nearly 2 to 1.

In a state where four-fifths of the population favors capital punishment, the main charge against Bird is that during her nine-year tenure the court has reversed all but three of the 55 death-penalty sentences that have come before it. Bird voted to overturn all of them. "She has been twisting the law so that it more closely reflects her own political beliefs," says Kern County District Attorney Edward Jagels, who, like many prosecutors, is an active Bird critic. (Bird refuses to divulge her personal position on capital punishment.) The campaign against the chief is a major factor in the state's gubernatorial race. Republican Incumbent George Deukmejian has led the call for her ouster; with an eye to the polls, Deukmejian's Democratic challenger, Los Angeles Mayor Tom Bradley, has stayed neutral.

Starting two full years before the election, Bird's well-organized opposition has raised $4.6 million so far, more than four times what her . supporters have gathered. The money has financed a flood of direct mail, but perhaps the most potent Bird-blasting weapon has been Crime Victims for Court Reform. Drawing on the savvy of Strategist Bill Roberts, a political consultant who co-managed Ronald Reagan's 1966 gubernatorial campaign, the group includes victims of crime and their families, in some cases the parents or spouses of murder victims. With the passion of bitter experience, they denounce Bird at public gatherings, and will swell the ranks of doorbell ringers that Roberts plans to field by the thousands next month. "There's a juggernaut coming down the street," he promises.

Bird objects that her adversaries are doing more than ringing doorbells. "They are pushing emotional buttons," she complains. Two other liberal supreme court justices, Joseph Grodin and Cruz Reynoso, are also under conservative pressure this year, although polls show that both of them are faring better than the chief is. Bird's backers charge that many of her opponents are merely using the death-penalty issue as a red herring to achieve a new majority on the seven-judge court, one that would be more sympathetic to business interests in civil cases. The Bird majority has supported tenants and favored the consumer in productliability suits.

As for the allegation that the court is soft on crime, her backers claim it has sided with the prosecution 90% of the time. Then why has no execution yet taken place in California during her tenure? Bird blames the fuzzy language of the state's 1978 death-penalty initiative and argues that the California Supreme Court has been getting the wrinkles out of the law. Executions will be upheld more easily, she predicts, when trial courts begin applying the justices' guidelines in new cases. "The death penalty is alive and well in California," Bird insists.

Intricate court reasoning can be hard to defend in a 30-second television commercial, however, and Bird has scarcely tried. On Labor Day weekend, with seven death-penalty cases coming up for argument before her court, she began airing a $250,000 series of campaign commercials in which capital punishment is never mentioned. Instead, in language she wrote herself, she intones from a setting that resembles a law office, "Judges with a backbone are a California tradition worth keeping." An admirable sentiment but one unlikely to disarm her opponents.

To the despair of the Committee to Conserve the Courts, her campaign ( group, the chief is a highly reluctant warrior. Relying on just a small group of volunteers, she has already sacked two top campaign strategists because "they wanted me to send direct mail that said nasty things," she explains. "I don't feel comfortable with the political process."

Bird has never been completely comfortable, either, with the legal establishment. She has the formal backing of many lawyers but not the sort of fiery protective outrage her campaign badly needs. And judicial propriety makes it impossible for her to answer blow for blow.

Judicial elections have sometimes seemed like an antidote to the practice of dispensing judgeships as trophies of political patronage. But the fervent campaign against Bird points up a conundrum. While it is sensible to be able to recall judges for corruption or incompetence, is it desirable for them to have to worry about voters when they make their legal judgments? Courts were never intended to reflect the popular will in the manner of legislatures. In judicial elections, says Berkeley Law Professor Franklin Zimring, "you walk the tightrope between democratic accountability and popular passion. Everybody agrees that accountability is fine and passion stinks, but how do you tell the difference?"

With reporting by Richard Woodbury/San Francisco