The irony is head shaking. If voters pass Prop 62 on Tuesday and repeal the death penalty, it will be 30 years, almost to the day, after California Supreme Court Chief Justice Rose Bird was ousted by voters because of her opposition to the death penalty. The vote wasn’t even close: 67-33 percent. She was the first, and last, chief justice to be removed from the state Supreme Court by voters.
“It was a really ugly political campaign,” says Kathleen Cairns, whose book, The Case of Rose Bird: Gender, Politics, and the California Courts, has just been released. Cairns says what happened to Bird, and the two associate justices, Cruz Reynoso and Joseph Grodin, who were also ousted, “set the stage for all that is going on now with judges. Rule in favor of gay rights, or plaintiffs, or even Obamacare, and your head is on the chopping block [when you’re up for election].”
Bird had been appointed to the Supreme Court in 1977 by then-Governor Jerry Brown, after she had served in his cabinet as Secretary of Agriculture. She was the first woman justice ever appointed to the court, and from the beginning she was controversial. She was considered aloof and reserved, and didn’t reach out to the other justices or to the press. She had never been a judge, and her appointment took everyone by surprise. “She had a lot of strikes against her that were not her fault,” says Cairns. “It wouldn’t have been as bad if she had been appointed an associate justice. But chief justice, she catapulted over all these men, and she was a newcomer.”
And then there was the death penalty. Capital punishment in California was reinstated by the Legislature in 1977, after it overrode a veto by Gov. Brown. One year later, that bill was replaced by the Briggs Initiative, which increased the penalties for murder, and added the number of special circumstances under which a death sentence would apply.
“The death penalty laws were really in flux,” during this time, says Cairns, “and here’s her [Bird] court coming together, looking at cases with these new laws.” In the 61 capital cases that came before the Supreme Court during her tenure, Bird never voted to uphold a death sentence. And in 1982, in a 6-1 decision, the court found that the Briggs Initiative’s jury instruction was a violation of due process. “And the drumbeat of opposition got louder and louder,” says Cairns. “People were so angry that no one was getting executed. It was a weird time in California politics.”
Chief among her opponents were George Deukmejian, while he was attorney general and then governor, and Anthony Rackauckas, who was then a deputy district attorney in the Orange County District Attorney’s office (and is now in his fourth term as DA). After heading up two failed recall campaigns, Rackauckas led a third attempt, in 1986, in what the Washington Post described at the time as “one of the longest, bitterest, most explicitly political campaigns ever aimed at an American judge.” This time they were successful, and Bird was not reconfirmed. The New York Times quoted pollsters as saying the ouster of Bird, as well as Reynoso and Grodin, was at least partly due to “the effectiveness of television commercials in which the parents of slain children assailed the court for setting aside the death sentences of their children’s killers.”
Cairns says the campaign against Bird was unprecedented in the “viciousness with which the political establishment went after her.” And while “the death penalty was the issue that got her,” the money that financed the campaign against her came from “corporations and insurance companies who believed [Deukmejian] would appoint replacements who were friendlier to their business interests.” Cairns adds that, “while only three death sentences were upheld during her tenure, nobody got off death row because she overturned death sentences; the cases were just thrown back to the trial courts.”
In her concession speech, the Times reported that “Bird urged voters to resist what she predicted would be efforts to turn the court into a ‘house of death’ because of ‘the insatiable appetite of ambitious politicians.’ ”
But with Bird, Reynoso, and Grodin off the court, Deukmejian was able to elevate his friend and law partner, Malcolm M. Lucas, from associate justice to chief justice, and appoint three additional justices, “heralding the end of a decade of liberal dominance of the court.”
