"It wasn't hers to lose," I thought, as I watched lopsided returns come in on Chief Justice Rose Bird's confirmation. I had been more than a casual observer; our firm had managed her campaign from February to July, 1985.
The story of why she first chose and then rejected us, the kind of campaign she eventually managed herself and her resounding defeat speak volumes about the contradictory character of Rose Elizabeth Bird and the twisted political process that has become our electoral system.
Bird came to us because we have a reputation for effectively representing progressive candidates and because we are well-known for crafting highly emotional positive and negative commercials.
When we first met, Bird told us that she had reluctantly decided a full-blown political campaign would be necessary to win confirmation, that the cornerstone of the campaign would have to be television commercials and that she was prepared to fight fire with fire in terms of rousing public support with dramatic and emotional commercials.
It didn't take long to recognize several characteristics about the chief justice we found very appealing. To a degree rarely seen in a public official, Bird put the people's good before her private concerns, maintained absolute standards of honesty, of integrity and, contrary to her public image, was disarmingly open and personable.
We set to work. There were two immediate priorities: craft a message that would move voters and raise the money required to deliver it. We hired Linda Feldman to manage the day-to-day affairs of the campaign and launch a number of major fund-raising events that eventually brought in hundreds of thousands of dollars. We hired Ken Coplon to start a direct mail fund-raising effort which, if executed, could have produced money on the same scale. And we hired Patrick Caddell to conduct an in-depth survey of public opinion to give us the data we needed to develop a message.
That's when the trouble started. Caddell's findings underscored the central contradiction of the coming campaign. The California Constitution mandates that the judiciary not only remain independent of other branches of government, but that it reach decisions on the basis of law, without regard for political pressure and the changing tides of public opinion. The voters, on the other hand, by a margin of 68% to 24%, felt they had every right to reject sitting Supreme Court justices if they disagreed with their decisions.
To base a political campaign on the independence of the judiciary was to commit electoral suicide. Especially so when the survey also revealed effective offensive and defensive strategy. On the defensive side, there was ample evidence that the Bird court had been very tough on criminals in general, and public opinion could have been moved on this issue to blunt the attack of our opponents.
Offensively there were many possibilities. The public responded favorably to arguments that Gov. George Deukmejian was guilty of court-packing, that the Bird court had protected the public against infringements of rights held dear by a majority--including those having to do with abortion, clean air and water, labor and housing discrimination--and finally, that the drive to unseat the court was fueled by a combination of powerful corporate special interests and extreme right-wingers trying to shape decisions for their own benefit.
But Bird had decided to base her campaign solely on the independence of the judiciary--regardless of advice or data to the contrary. Furthermore, she objected to fund-raising events being organized by Feldman on the grounds that they positioned her as just another politician seeking reelection. Finally, when she saw the necessarily emotional tone of Coplon's fund-raising letters, even though she had agreed to such content in advance, Bird simply refused to go on.
At the same time, there were problems about speaking to the press. Most candidates and political consultants are wary of what they say to reporters. Yet most candidates and consultants do talk to the press even as they try to put a favorable "spin" on what they say. Not so the chief justice. Never have I encountered a public official or candidate so reluctant to be interviewed or so suspicious of the motivation of reporters.
Since she wouldn't talk, I had to. She had hired us early precisely because she wanted to signal her supporters that she was serious about winning, that she intended her television advertising to be as intense as that of her opponents. I said as much to the press, being careful not to reveal anything specific about her message for the campaign. Nonetheless she accused me of "revealing" her "strategy" and ordered me to have no further contact with the press.