Another First for California

The California Supreme Court has a long history of pioneering decisions. Back in 1948, for example, it voided a law that banned interracial marriage --anticipating the U.S. Supreme Court by 19 years. Now Governor Jerry Brown is carrying that progressive tradition to the court itself. He has named Rose Elizabeth Bird, 40, California's Agriculture and Services Secretary, to be not only the first woman on the seven-member court but also the chief justice. At the same time, Brown appointed the court's first black: Alameda County Superior Court Judge Wiley W. Manuel, 49.

It is the appointment of Bird, a tall Arizona-born, Berkeley-trained lawyer and close political confidante of Brown's, that is causing a stir. The California Trial Lawyers Association hailed her nomination as "one of the most significant acts" of the Brown administration. But others are not so sure.

The doubts, as they are expressed, have nothing to do with Bird's sex. After all, women serve on the supreme court in five states, and a woman already heads one: North Carolina's. What upsets some of Bird's critics is that while she has had experience as a public defender, she has never been a judge.

Former California Chief Justice Donald Wright, a Ronald Reagan appointee whom Bird is replacing, protests that in California "this is the first time, at least since the turn of the century, that someone without judicial experience is appointed directly as chief justice." Attorney General Evelle J. Younger, one of a three-man panel that must approve the nomination, questions Bird's lack of judicial experience and does not like what he describes as her "soft position" on the death penalty. Younger, a Republican, wants to run against Brown in next year's gubernatorial election; if he blocks the Bird appointment, he could reap the wrath of California's women voters.

Bird's lack of judicial experience should be no bar to her, though. Outstanding jurists have moved directly to the nation's highest court without apprenticeship on any bench. Felix Frankfurter was a Harvard law professor when F.D.R. named him to the U.S. Supreme Court in 1939. Earl Warren was plucked from California's governorship to become Chief Justice in 1953--though he had also been a D.A. and the state's attorney general. At present, there are three men on the Supreme Court--Justices William H. Rehnquist, Lewis F. Powell and Byron R. White--who had not been judges before their appointment. Bird, a quick study and a tireless administrator, is highly regarded by lawyers who know her work. Says Cornell Law School's Deputy Dean Judith T. Younger: "She'll learn soon enough."

Following a hard-knocks childhood --her father died before she was twelve, her mother took a factory job, then moved the family to upstate New York --Bird studied at Long Island University, then went on to graduate school at the University of California at Berkeley. After earning her law degree at Berkeley in 1965, she became the first woman to clerk on the Nevada Supreme Court, where Justice David Zenoff pronounced her "intellectually marvelous." Bird, who has never been married, then became the first female public defender in Santa Clara County, Calif., and also taught litigation and consumer law from 1972 to 1974 at Stanford.

In 1975 Governor Brown chose her to head the agriculture and services agency, making her the first woman cabinet officer in California history. There she pushed through the state's still hotly debated Agricultural Labor Relations Act. On the bench, she is expected to work toward reforms in court procedures. "I've seen her on the firing line, and invariably her judgment is of the highest order," says Brown. "I think she can bring to her role a fundamental quality--wisdom."

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