COVER

CAUGHT IN A BACKLASH

JANE O’HARA November 17 1986
COVER

CAUGHT IN A BACKLASH

JANE O’HARA November 17 1986

CAUGHT IN A BACKLASH

COVER

In testing the volatile winds of American political change, there is no better weather vane than the state of California.

Always a breeding ground for social and political change, the populous and populist West Coast state gave President Ronald Reagan his political start as governor in 1966. It also launched Proposition 13, landlord association director Howard Jarvis’s socalled “tax revolt” campaign in 1978 that marked the first time that citizens had given themselves a tax cut-in that case a 60-percent reduction in property taxes. Last week, as part of the U.S. midterm elections, Californians went to the polls to face a dizzying array of controversial issues that ranged from the question of making English the official state language to whether AIDS victims should be quarantined. But the result that could herald the most far-reaching consequences was the defeat of Rose Elizabeth Bird, the chief justice of California’s Supreme Court, who was dismissed by voters in a backlash against her record of liberal judicial decisions, especially her refusal to impose the death penalty.

Vivacious: When the voters did not reconfirm the appointment of the vivacious 50-year-old Democrat, Bird became the first judge to lose such a vote since California’s system of electoral confirmation began in 1934. Her loss was unprecedented, but predictable. The first woman ever named to California’s highest court, when Democratic Gov. Jerry Brown appointed her in 1977, Bird become a lightning rod for statewide dissatisfaction with liberal courts. Her opponents, a well-funded coalition of big business, political conservatives and supporters of capital punishment, called themselves “Bird hunters” and referred to her legal decisions as “Bird droppings.”

Over nine years, Bird voted to overturn all 61 of the death sentences imposed by lower courts. She also took liberal stands on environmental issues and other causes, including the rights of tenants, women and organized labor. As a result, some legal observers regarded Bird’s defeat as a troubling precedent. Said Laurence Tribe, an ex-

pert in constitutional law at Harvard Law School: “California may be a bellwether. If people around the country observe that a concerted effort to attack a judge—not necessarily for principled reasons, but politically— can succeed, the independence of judges around the country may be jeopardized.”

Slayings: The campaign against

Bird began in earnest two years ago, when a group of conservatives set up a committee called Crime Victims for Court Reform and launched a directmail campaign that, along with the efforts of other groups, raised more than $6 million. Some of the mailed literature contained descriptions of brutal slayings and concluded by claiming that Bird had “let the killers go free.”

But that was not true. Although Bird never approved an execution, all the murderers whose cases she reviewed

remained in prison, most of them serving life terms with no possibility of parole. The committee also paid for a series of emotionally charged television commercials. In one, the grieving mother of a 12year-old girl said: “My

daughter, Robin, never got to her ballet lesson. But the man who kidnapped and killed her is still alive.” The final message: “Vote no to Chief Justice Rose Bird.”

Cry: During the campaign, Bird’s name became a rallying cry for Republicans. The anti-Bird sentiment was so strong that Democrats were reluctant to defend her, especially because newspaper polls reported that more than 80 per cent of the California voters favored the death penalty. But there may have been other reasons for Bird’s stunning defeat. Said Betty Medsger, who wrote the 1983 book Framed: The New Right Attack on Chief Justice Rose Bird and the Courts'. “She was controversial even before she got to the office.” When Brown appointed Bird chief justice in 1977, she had just stepped down after two years as state secretary of agriculture. A lawyer who graduated from Berkeley Law School in 1965, Bird had not served on the bench before her appointment. She described her emergence on the court as “the equivalent of making a nun the Pope.” And Bird angered conservatives by insisting on calling herself “chairperson” of the Judicial Council instead of chairman. Said Medsger: “Put all those

things together and the ingredients

make her a pretty good lightning rod.” Bird’s cause was not helped by her own inexplicable failure to mount a strong campaign to counteract her detractors. Although film star Warren Beatty and other Hollywood luminaries rallied to her cause and raised $1 million in campaign funds, Bird refused to fight. Rejecting support from the National Organization for Women, the California Trial Lawyers Associa• tion and the Bar Association of California, she acted as her own campaign chairman and even wrote the scripts for her low-budget television commercials. Bird, who is single, insisted on taking what she called “the high road” in one of the toughest campaigns in state history. Said Bird: “If I truly wanted to have an image that would be useful to me, I’d take you home, I’d have my nieces and nephews there, I’d be baking cookies, I’d have my 82-yearold mother there telling wonderful anecdotes about me as a child. That’s what works in this society now.”

While Bird served as a focus for right-wing resentments, California’s liberals rallied to defeat a hotly debated issue, one of 13 statewide propositions dealing with issues from tax increases

to ceilings on the salaries of state employees. Proposition 64, which Virginiabased political extremist Lyndon Larouche advanced, urged that anyone suffering from AIDS or carrying the virus should be quarantined in detention centres. Larouche, who says that AIDS is “an even greater threat than nuclear war,” insisted—in defiance of available medical evidence—that AIDS is spread by casual contact, insects and airborne particles. His opponents raised $2.3 million to fight and defeat Proposition 64 by a margin of almost 3 to 1. At the “No on 64” offices in San Francisco, the mainly homosexual staff was keenly aware of the latest grim statistics on the spread of AIDS. As of October, there were 1,442 reported deaths from the disease in San Francisco this year. Despite

that, opposition to Proposition 64 included every major medical association in the state and a cross section of politicians including incumbent Republican Gov. George Deukmejian. Said his opponent, Los Angeles mayor Tom Bradley: “The Larouche initiative is a throwback to the Dark Ages.”

Cancer: Hollywood traditionally plays a major role in California politics, and last week was no exception. Actress Jane Fonda and her husband, State Assemblyman Tom Hayden, celebrated his re-election and the success

of Proposition 65, an antipollution measure that passed overwhelmingly. The law, which will go into effect on Jan. 1, will make it illegal to dump cancer-causing chemicals where they could contaminate drinking water. Supporters said that it will be the environmental equivalent of tax-cutting Proposition 13, which was imitated across the country.

Anger: For California’s immigrant community, the passing of Proposition 63, making English the sole official language of the heavily Hispanic state, caused anger and confusion. The measure was the brainchild of Samuel Hayakawa—a Canadian-born former Republican senator who is of Japanese descent—and who failed to persuade Congress to adopt English as the only

official U.S. language. Proponents intended that the measure would encourage immigrants to learn English and prevent the state from being divided along linguistic lines. Hayakawa said that Canada was proof that bilingualism did not work. Spanish-speakers now make up 20 per cent of California’s 26 million population, and some Hispanic community leaders argued that the proposition was simply a means of eliminating government bilingual programs and emergency services.

In the wake of the election, specula-

tion centred on the vacancies created by Bird and two other liberal judges who were not reconfirmed. Many political and media pundits predicted that Deukmejian, who swung his support behind the liberal opponents of Proposition 64, would let his conservative instincts prevail in his choice of Bird’s successor. He was expected to name his former law partner and the most conservative member of the court, Justice Malcolm Lucas, to the position of chief justice. The prospect saddened Bird, whose term ends on Jan. 5. “I think,” she predicted, “we will see executions in California based not on the law but on political expediency.”

—JANE O’HARA in San Francisco with ANNE GREGOR in Los Angeles

ANNE GREGOR