STANFORD — A San Francisco newspaper, writing about State Supreme Court Chief Justice Rose Elizabeth Bird last week, stated that "the voting public seems hell-bent on ousting her." This set me to reflecting on the virulent force of the campaign and what seems a public resistence to reason.
The same polls that show the chief justice far behind in the election also show that people think she is qualified and performs her job with integrity. Perhaps the public resents having to take on faith that her opinions are well-researched and reasoned, that from a scholarly viewpoint even the worst of them is competent and a good many are excellent.
It is unfortunate that the law's complexity requires voters to take the word of experts on the quality of Bird's work. It is also unfortunate that some lawyers and law professors have used their positions as experts to write misleading and inaccurate accounts of the court's opinions. A group of Stanford law professors has responded to some of the partisan arguments in a pamphlet, "Campaign of Deceit," which will be available soon to inform voters about the intellectual quality issue.
Yet these academic matters are not really central because the campaign against Bird has focused on a single issue: the death penalty. The chief justice has not voted to affirm the death penalty in any case in which it has been imposed.
Bird's opponents portray her as standing between Californians and the enforcement of the death penalty. But for a conviction to be reversed, other justices must join the chief justice. Ultimately, she--or even she together with justices Joseph R. Grodin and Cruz Reynoso, who have also been targeted in this election--cannot prevent an execution. It requires a majority of the seven justices sitting on the court.
More important, the chief justice's opinions in death penalty cases, like her other opinions, are legally creditable. Her main concern has been that no one should be executed if the conviction or death penalty was the result of a serious malfunction in the judicial process. Her opponents cannot deny that procedural malfunctions have taken place. Rather, they may be willing to tolerate errors given the heinous crimes involved. Bird follows a long-standing tradition of state appellate courts and the U.S. Supreme Court in demanding the highest procedural standards for death penalty cases.
California is not, moreover, unique in being scrupulous before imposing the death penalty. Twenty-five of the 38 states with death penalty laws have executed no one since 1972. And as the Stanford pamphlet points out, "virtually all the executions have occurred in a few Southern states--states whose systems of criminal justice Californians might well not wish to emulate."
"So if we don't agree with her analysis why shouldn't we remove her?" voters might ask. The response should be: But it's not her analysis that you disagree with, it's the result--i.e., that some executions may be delayed or perhaps never take place if her vote leads a majority. If you ask the public whether a criminally accused person should have a competent defense lawyer, or whether prospective jurors should be carefully questioned about their attitudes toward the death penalty, most would readily say yes. Yet it is on such principles that Bird's analyses rest.
The purpose of a retention election is not to rid the bench of justices whose results the majority of people don't like. Rather, as I teach my students in civil procedure, the historical reason for the California election is to allow removal of a justice who has abused the position--for example, by writing mendacious opinions. Even the chief justice's most vitriolic critics have usually stopped short of such an accusation.
Acceding to the desires of the majority on a case-by-case basis is not one of the functions of the judicial branch. In our scheme of separated powers, the independence of the judiciary from changing public will is as central as responsiveness to that will by the executive and legislative branches.
Nor do we generally demand that our judges be popularly engaging. Yet a great deal of the public and private discussion during the campaign has been about Bird's work habits, her social life, even her hair style. I believe that this has occurred because she is a woman in a position of power. Her opponents play on the submerged and inarticulate belief that it is not quite right for a woman to be chief justice of one of the nation's greatest courts. And to mask the sexism, they say, in effect, "See what an odd and peculiar woman she is."
To test whether I am indulging in prickly feminist sensitivity, the reader might think about the difference in emotional level and content of the campaign had the chief justice been a man with all the same legal views. Certainly nobody would consider unfavorable a reserved demeanor, an ascetic life style or an improved appearance.
With all the resources devoted to their cause, Bird's opponents have not produced anything that shows bad character. She is sober, hard working and honest. In any case, her personal attributes are not the issue here. Nor should the issue be the current unpopularity of her opinions--which has become the level of this campaign. The proper question should be: Is Rose Bird a solid and capable chief justice? If the public's answer is yes, then her repudiation would be a tragedy to the people of California, who, history would show, were manipulated into misapprehending the nature of judicial work and the purposes of this election.