70 Judicature 81 (1986-1987)
Rose Bird and the Politics of Judicial Accountability in California

handle is hein.journals/judica70 and id is 83 raw text is: Rose Bird and the politics of judicial
accountability in California
An important chapter in the story of the conflict between judicial independence
and accountability is being written this fall in California. In the first of two parts,
the authors look at the background and politics of the California Supreme
Court controversy.
By John H. Culver and John T. Wold

W hen California Governor
Jerry Brown appointed
Rose Elizabeth Bird to the
state supreme court in 1977,
he was making good on his pledge to
place women and minorities in positions
of power in state government. Bird be-
came the first woman on the state high
court, the second female chief justice in
the nation, and in the November 1986
general election she may become the first
California appellate justice to be voted
out of office by the public.
In this first of a two-part series on the
effort to oust Bird and two other justices,
our focus is upon the background to,
and politics of, the current controversy
surrounding the California Supreme
Court. In the second part, to appear after
the November election, we shall address
the institutional and policy implications
of the election results. Whatever the out-
come of the voting, the debate concern-
ing judicial accountability and indepen-
dence will probably continue to simmer
in California, as well as in other states
where judicial decisions provoke the
public's anger.
The forthcoming election is more than
a referendum on Rose Bird. It may have
national implications as well. Accord-
1. Los ANGELES DAILY JOURNAL, March 4, 1986
at 4.
Nov. 19, 1985 at 6/A.
108-10 (Austin: University of Texas Press, 1980).
4. Lovrich and Sheldon, Voters in Contested,
Nonpartisan Judicial Elections: A Responsible
Electorate or a Problematic Public?, 36 W. POL. Q.
241 (1983).
5. PORTLAND OREGONIAN, Apr. 15, 1984 and Oct.
10, 1984.

ing to James McClellan, Director of the
Center for Judicial Studies in Virginia,
Many conservatives are of the thinking
that Reagan's appointments at the fed-
eral level are the most lasting contribu-
tions of his administration. Should
Bird be defeated, says McClellan, it will
give the Reagan administration a moral
uplift by indicating that there is wide-
spread opposition to these [liberal acti-
vist] judges.'
Court critics hope that Bird's defeat,
and the rejection of two other justices,
will signal an end to what they view as
the public-be-damned attitude and
ultra-liberal trends of the Bird court.
One Northern California district attor-
ney active in the anti-Bird movement has
warned that vigilantism could occur if
the membership of the court remains the
same.' In contrast, Bird's supporters cite
the efforts to unseat the chief justice as
evidence that judicial independence is
being threatened as never before, an
assault directed by right-wing ideologues
who want the justices to decide cases by
the current whims of public opinion,
rather than according to neutral prin-
ciples of law.
The controversy over Bird has in fact
become the leading issue in California's
current political campaign. Many Demo-
crats who are vying for statewide partisan
offices are distancing themselves from
the chief justice out of fear that, if Bird is
indeed rejected, the voters will reject
them as well. For their part, Republican
candidates are trying to outdo each other
in their anti-Bird proclamations. Repub-
lican Governor George Deukmejian
holds a comfortable lead over his oppon-

ent, Mayor Tom Bradley of Los Angeles,
in part because of the governor's ability
to cast Bradley as a closet Bird supporter.
Bradley, who openly supported Bird in
1978, has refused to take an official stand
for or against her reelection this year. He
has stated instead that he will vote for all
of the justices on the ballot, even though
he disagrees with some of Bird's opin-
ions, particularly those involving the
death penalty. Republican campaign
strategists hope that anti-Bird sentiment
will help them gain control of the state
legislature, something they have been
unable to do for 16 years.
While incumbency still protects most
of them from electoral defeat, judges
nationwide increasingly are under chal-
lenge for a variety of reasons, including
citizen dissatisfaction with the role of the
judiciary in handling controversial is-
sues and the public's fear of crime.
Because of these and other factors, judi-
cial elections are becoming a new arena
for political contest, one which threat-
ens to transform the idea of an elective
judiciary balanced by the 'special' nature
of those elections into a system weighted
toward public accountability.4
Many of the charges now levelled
against Bird were voiced in Oregon two
years ago when incumbent Justice Hans
Linde of the state Supreme Court suc-
cessfully staved off a law-and-order
campaign to oust him from the court.5
The upcoming November elections will
also decide the fates of Ohio Chief Jus-
tice Frank Celebrezze and Judge Ed Parks
of the Oklahoma Court of Criminal
Appeals. Celebrezze, who has incurred
the wrath of the Ohio State Bar Associa-

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