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Retired Judge Wants to Write the 'Great American Novel'

May 13, 1988

Retired Orange County Judge Robert Gardner is still--at the age of 77--handing down verdicts as pithy and acerbic as those that were quoted frequently during his four decades on Superior Court and appellate court benches. Only now they tend to come out more frequently in conversation than as legal opinions.

In a Corona del Mar restaurant a few blocks from his Shore Cliffs home last week ("Hell, I can walk there"), he took a bemused look at his present work with a private arbitration and mediation service designed to ease caseloads by settling cases out of court. "The young lawyers don't know me," he said without rancor. "I've been gone from the local bench since 1969, so they pick other judges they know."

He manages to keep busy, however, mostly by writing. "Retirement is a fate worse than death if you wake up with nothing to do. We don't use old people in this society very productively. I'm just glad I have an opportunity at my age to be productive. I'd be terribly frustrated if I didn't."

So how could we deal more intelligently with our elderly citizens?

"Well, we could just kill 'em off. During the three years I was chief justice in American Samoa, I learned about that system. You see, the main cause of death in the islands is fish poisoning. They get most of their food from the sea, but they never know what the fish have just eaten, and sometimes it's poisonous. So before we took over, they'd try out the fish on the oldest person in the village. If he keeled over, then it was poisonous and the younger people didn't eat it. That controlled the population nicely. Now they try it on wild dogs that they didn't have until we introduced dogs to the islands. And the average life expectancy has jumped from 40 to 60."

Whether the story is apocryphal or not, it is vintage Gardner, known among his appellate court peers as "No Way" Gardner because he tended to react in his opinions to tortured legal arguments by simply commenting, "No way." This enabled him to dispose of cases about three times as fast as his associates. "That's why as presiding judge," he explained, "I took all the junk cases. My associates tended to treat them all as blockbusters."

Also vintage Gardner are his querulous bushy eyebrows and his lean, weather-beaten face, earned by countless hours of body surfing. Both are still very much in evidence, along with a remarkable amount of physical and intellectual energy that tends to attack waves and ideas both frontally. A lot of his observations have been made before--mostly in Gardner's own writings--but he has the vitality to make them all sound fresh.

Gardner was born in Washington state, brought to Orange County when he was nine months old and then taken to Wyoming several years later when his railroad worker father was transferred there. During the railroad strike of 1922, he was sent to Balboa to live with a sister--and never moved away from Orange County again. He seems to know most of the early pioneers by name, from bartenders to cops to movie stars.

Although he said he never knew John Wayne well, he did meet Wayne when the actor's name was Marion Michael Morrison. "This loudmouth came through Balboa one Saturday night with a friend who looked as big as a barn and played football at USC. The smaller guy was telling everybody that his man could whip anybody in town. So we got out our local champion, and people formed a ring around these two guys. All the locals were betting on our champ, and the big talker was covering the bets. Well, our man lasted one punch. When he came to, I was the only one left, and I helped him home. A few days later, Morrison--or Wayne--broke his shoulder body surfing. That ended his football and started his acting career."

Gardner launched his career at USC too. He got a law degree there in 1935 and took the bar exam that summer. He was so sure he had blown it that he shipped out on a freighter to China. He found out in mid-Pacific that he had passed, but it took him a year to get back and set up a law practice in Newport Beach. His performance as a defense counsel got him an appointment to the district attorney's staff two years later. He also served as a part-time municipal judge until 1941 when he enlisted in the Navy, was assigned to Intelligence and ended up on the staff of Adm. Chester Nimitz. Oddly enough, that's where he gained his greatest impetus to write.

Gardner's original interest in writing came as a student of the fabled Frank Baxter at USC. But in the midst of World War II, he shared an office for six months on Saipan with an Air Force public relations officer named St. Clair McElway, whose work appeared for many years in the New Yorker magazine. "His dispatches were beautiful," Gardner recalled, "and I wanted to write like him. He told me to do it persistently for 10 years, and then I'd be a writer. I've been doing it for 40 years and haven't got there yet. Before I die, I want to sell some fiction."

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