Thirty years ago, on November 4, 1986, California voters ousted Rose Bird, chief justice of the California Supreme Court, by a margin of 67 to 33 percent. This landslide vote confirmed that, contrary to current rhetoric, a bipartisan ruling class out of touch with the people is not a new development.
Bird had been the first female public defender in Santa Clara County before serving as campaign chauffeur for Jerry Brown during his run for governor in 1974. Brown, son of former Gov. Edmund G. “Pat” Brown, won the election and appointed Bird secretary of agriculture, the state’s first woman cabinet member.
In 1977 Bird was only 40 years old and without judicial experience. Even so, Gov. Brown, a Democrat, appointed his former chauffeur chief justice of the California Supreme Court. A key confirmation vote came from Evelle Younger, the state’s Republican attorney general.
Bird was the first female justice of California’s high court and thus the first female chief justice. She seemed to view the appointment as a promotion to aristocratic status, demanding that associate justices make appointments if they wanted to see her. Bird also proved that, like men, women are fully capable of elevating their own ideology above the law.
In 10 years as California’s chief justice, Bird heard 64 capital cases and never voted to uphold a death sentence. Even for staunch death-penalty opponents, including those on the court, it defied belief to think that every case was unfounded. The cases included that of Theodore Frank, duly convicted of kidnaping, torturing, raping, murdering and mutilating two-year-old Amy Sue Seitz in 1978.
Bird had also been an enemy of big farmers and property-tax reformers, but as Patrick K. Brown wrote in “The Rise and Fall of Rose Bird,” the voters cared only that she “did not care about victims of crime.” She also had struck down a law, endorsed by Jerry Brown, requiring a prison term in any crime committed with a gun.
On November 4, 1986, as one headline put it, voters “flipped the Bird” by a two-to-one margin. The first woman to serve on the state Supreme Court became the only chief justice in state history to be removed by a vote of the people, who did not stop there.
California voters also ousted Justices Cruz Reynoso and Joseph Grodin, both Jerry Brown appointees, who sided with Bird on the death-penalty cases. Justice Stanley Mosk remained on the court because, as he explained, “I took an oath to support the law as it is and not as I might prefer it to be.”
For all but the willfully blind the lessons here should be obvious. The people care about victims of crime, and the people dislike judges who elevate their social vision above the law. Judges who do that are out of touch with the people, and so are the politicians who appoint and confirm them.
In November 2016 the bipartisan ruling class is more out of touch than ever, and justices of the U.S. Supreme Court are appointed for life. They remain on the court even if they elevate their own social vision above the law, in the manner of Bird, Reynoso and Grodin.
Assigning justices of the U.S. Supreme Court a fixed term and giving the people a say in reconfirmation are reforms worth considering. As California’s 1986 vote confirms, when the people wield reconfirmation power they can achieve the meaningful change that politicians fail to deliver.
|K. Lloyd Billingsley is a Policy Fellow at the Independent Institute and author of the Independent Briefing, Cross-Currents in California Water: A Case Study of Bureaucracy Versus Tradable, Private Water Rights.|