Bird Hunt

In California, State Supreme Court justices can usually afford to sit high above the political fray. Once appointed by the Governor, they need face the voters only for a yes or no vote at the next gubernatorial election before serving a twelve-year term, and in the past that public endorsement has proved to be little more than a rubber stamp.

But this year is different. After only 18 months in office, Chief Justice Rose Bird, the first woman ever put on the California high court, is in danger of becoming the first justice ever voted off it. Last week the state G.O.P. came out against her as "a serious threat to the California courts"; by November a coalition of Bird hunters will have spent upwards of $600,000 on a campaign to clip the judge's wings. Late last week, Bird's chances of hanging on improved somewhat when the State Supreme Court approved the constitutionality of Proposition 13, the highly popular tax-cut measure.

Bird's appointment was attacked from the outset because she was considered "soft" on crime and the death penalty, and because she had no prior experience as a judge. (Neither did Felix Frankfurter or Earl Warren before they sat on the U.S. Supreme Court, her defenders pointed out.) "She has a very clear mind, a good heart and strong administrative legal skills," said Governor Jerry Brown when he elevated Bird to the court from her prior post as head of the state's agriculture and services agency. "She is vindictive, snaps back and is autocratic as she can be," charges conservative State Senator Hubert Leon ("Bill") Richardson, who launched the campaign to unseat her. Richardson accuses the judge of poor administration and using judicial appointments to consolidate her own political power. Off the record, a few of her colleagues on the court echo the last complaint. Of Bird's practice of using lower court judges to fill temporary vacancies on the supreme court, one justice says: "There's power building here, and it's under the heading of experimentation."

A former public defender with a liberal background (at 15 she campaigned for Adlai Stevenson), a graduate of Berkeley's law school, Bird, 41, is also under fire for her vote in a controversial rape case. A man who had raped a woman over a four-hour period, while holding a knife over her and inflicting minor lacerations, did not commit "great bodily injury," ruled the court. The majority opinion was written by one of Bird's temporary appointees, and Bird concurred, alienating law-and-order advocates and many feminists, her natural allies.

However unpopular her vote in the rape case, Bird maintained that she was doing no more than deferring to the meaning given great bodily injury by popularly elected lawmakers. "Personal repugnance toward these crimes cannot be a legitimate basis for rewriting the statute as it was adopted by the legislature," she wrote. Stanford Criminal Law Professor John Kaplan agrees: "Rape, in itself, shouldn't be bodily harm. I think that's what the legislature meant. There's a whole line of cases about this."

In another revealing case, the judge ruled on a divorce settlement, upholding the right of a wife who had spent 28 years as a homemaker and mother to receive support. "This has nothing to do with feminism, sexism, male chauvinism," she wrote. "It is ordinary common sense, basic decency and simple justice."

Bird seems to be a strict constructionist rather than an activist who wants to impose her own views on legislators. Her predicament stems from her outspokenness, affiliation with Jerry Brown and just plain politics. For the most part, she has wisely tried to maintain judicial aloofness from the politics swirling around her. But in a speech last month, she blasted "extremists" for believing that "they can influence the votes of us on the supreme court by threatening us with recall or defeat at the polls if we decide contrary to then" views on a political issue. These individuals would suggest a new rule of law for the judiciary, a new type of politics for the courts. It is, to use the clearest terms, the rule of extortion." One San Francisco lawyer, sardonically contemplating the possibility of Governor Brown's defeat in his November re-election race, along with the Bird referendum, said, "If you had a new Republican Governor and a vacancy on the supreme court, that would be nice, wouldn't it?"

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