No Longer Best or Brightest

By Bennett H. Beach

California's embattled top court now faces a hostile Governor

Rose Bird no doubt relished the prospect. Had the voters obliged, Bird, the first woman to serve as her state's chief justice, would have been swearing in the nation's first elected black Governor, California's Thomas Bradley, on Jan. 3. Instead the voters chose George Deukmejian three weeks ago, and Democrat Bird may not even be asked to perform her traditional inaugural role. For Deukmejian, now the state's Republican attorney general, is an unrelenting Bird critic determined to reverse what he sees as the excessive liberalism of the chief and her court.

"Rose Bird," said Deukmejian in his campaign, "has done more damage to the California Supreme Court and the administration of justice than any of her predecessors." That battle cry from the Governor-elect signals merely the latest assault wave on the court. Whether the damage was done by Bird, her critics or both, the sad result is that this state court, once reputed to be the nation's best, has lost both its luster and its leadership role.

The legend that is now coming apart traces back to 1940. That year Governor Culbert Olson appointed both Chief Justice Phil Gibson and Associate Justice Roger Traynor. Gibson was a master administrator, Traynor a brilliant theorist. Together they molded an efficient statewide judiciary led by a supreme court whose decisions were often artful expansions of existing law that created new rights for California's citizens. During its heyday in the 1960s, judges across the country frequently followed California's lead in criminal and consumer rights.

Some time in the 1970s the trouble began. Gibson and Traynor had retired, and the seven-man bench was saddled with a senile justice who refused to step down. Seeking to change the court's direction, then Governor Ronald Reagan made three appointments, including one (William Clark, now National Security Adviser) whose failure to finish law school prompted charges that Reagan was naming lightweights. A few years later the same charge was being tossed at Governor Jerry Brown, who also tried to fill the court with nominees sharing his outlook.

Chief among them was Rose Bird. Only 40, with no experience as a judge, she moved up from state agriculture secretary to head the court in 1977. In contrast to the gentle persuasion effectively practiced by her predecessor, Donald Wright, the bright, hard-working Bird offered aloofness and abrasion. Her manner soon cost her the services of Ralph Kleps, the able administrator of the state's judiciary. Another casualty was collegiality, the glue that enables seven independent thinkers to meld their views into cohesive decisions. Then in 1979, the court endured the public debacle of a state investigation. The charge: that four controversial decisions had been delayed until after an election in which four justices were up for voter approval. The claim was never proved, but on TV, the justices comported themselves more like petty Solons than Solomons.

The dimmed public reputation has been matched by diminished support in the legal community. Justice James Duke Cameron of the neighboring Arizona Supreme Court complains that some California justices are "not as qualified as they should be." He also says that his court cites California's "mainly uninspired" decisions far less than it used to. Berkeley Law Professor Preble Stolz has written a book lambasting the tribunal. Says he: "Too often the opinions stink of politics. It is sad that a great court which once persuaded us by careful reasoning now thinks that justice depends upon simple-minded stereotypes."

The court's defenders find more subjectivity than substance in the criticism. "What we're really seeing is an old-fashioned right-wing onslaught on the courts," says Harvard Law Professor Laurence Tribe. Wright, the former chief, also believes that the harsh criticism is unwarranted. "I give them a good report card," he says, though he deplores "the continuous turmoil" inside the court. In her own defense, Bird told TIME that critics were focusing on images rather than facts.

"Eighty-five percent of the defendants brought before the California superior courts are convicted," said Bird, "and nine out often convictions are upheld following appeal. I don't think we're result-oriented either. Our role is like the umpire, so we're never going to be popular."

In fact, the citizenry is almost at war with what many derisively call "Rosie and the Supremes." Earlier this year voters passed a "Victims' Bill of Rights" amendment to the state constitution, eliminating many of the protections the court had extended to criminal defendants. This month four justices, including three moderate-to-liberal Brown appointees (Allen Broussard, Otto Kaus, Cruz Reynoso), were up for voter review. All three Brown judges came unusually close to losing. Says Earl Huntting, 71, president of Citizens for Law and Order: "Our judicial system has broken down so badly it causes crime to be as bad as it is." Court foes are pushing a petition for Bird's recall, which will go before the voters if 731,244 signatures are gathered by March 3.

Deukmejian would be only too happy to name a replacement for Bird, and has already begun his effort to swing the state judiciary. At the same time, Brown will probably take a last swing of his own. A recent law created 18 new appellate judgeships that Brown wants to fill before stepping down. Last week, in what some considered a flagrantly opportune decision, the court cleared away a timing technicality that could have denied Brown the chance. He might also be able to put one more justice on the supreme court. Frank Newman, a liberal he appointed in 1977, has decided to resign, probably by month's end. Condemning the expected "deathbed" appointments, the Governor-elect is now planning various procedural tactics to stop Brown. But the court will continue to have a large liberal-leaning majority, consisting of Jerry Brown's five choices and Stanley Mosk, named by Governor Pat Brown (with only Reagan Appointee Frank Richardson right of center). Thus the prospect is for more political quarrels that will do nothing to revive the prestige of what was once a peerless ornament of American jurisprudence. --By Bennett H. Beach. Reported by Joseph Pilcher/Los Angeles

With reporting by Joseph Pilcher/Los Angeles

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