EXCERPT: The Case of Rose Bird

The following is excerpted from The Case of Rose Bird: Gender, Politics, and the California Courts by Kahleen A. Cairns (Bison Books, November).

From Chapter Five: Hail to the Chief

Rose Bird wove in and out of San Francisco traffic before easing her Dodge Dart to the curb in a loading zone. As the car sat idling, an aide jumped out, clutching a newspaper classified ad section. He entered a phone booth, closed the door, and made a call. His boss was looking for an apartment to rent during the work week; he wanted to know if the advertised unit was still available. He returned to the car to inform Bird that the owner wanted references before showing the place. She laughed, then quipped: “They let anyone on the court these days.”

It was April 1977 and Bird had been on the job for two weeks. She had agreed to let Los Angeles Times reporter Betty Liddick accompany her as she went about her daily tasks; as the writer noted, her subject was “uneasy,” “guarded,” and extraordinarily reluctant to talk about herself. “If I was dull before, I’m boring now,” Bird insisted. Explaining her reticence, she referenced her tenure as agriculture secretary. “I guess it was partly a result of seeing what I thought was a misplaced value in political life—trying to find out as much as you could about the person, almost to the extent of what kind of bed they slept in, details of that sort that really have no relevance to what kind of job they do in terms of governing the state.”1

Asked how the controversy over her appointment had affected her, Bird said: “I suppose as an individual when you’re personally attacked, it’s not easy, but it’s a part of political and public life. If you let yourself become hurt every time it happens, you’re going to be bruised all the time.” She added: “I think the question involving prior judicial experience was a legitimate one and probably healthy to have discussed out in the open. Some of the other parts of it I could have avoided.”2

Overnight, and to her dismay, Rose Bird had become an extraordinarily sought-after interview subject. From the moment she became chief justice, journalists began to telephone her office, and the calls “came in incessantly thereafter.”3 Despite her reluctance to divulge personal information, Times readers could glean some interesting information about California’s new chief justice.

For example, Bird drove a Dodge Dart; previous chief justices had utilized the services of drivers and limousines. She chose to sell the court’s limousine. “It didn’t fit; I couldn’t see myself in it,” she told reporter Liddick. Besides, she did not believe taxpayers should foot the bill for state employees’ personal luxuries.4 At the same time, Bird did utilize the services of an assistant to conduct personal business—she paid him out of her own funds when he was not working on court issues. In fact, an aide accompanied her at virtually all times, essentially enabling her to shield herself from uncomfortable situations. Most often the aide was Stephen Buehl, who moved with Bird from the Agriculture and Services Agency to the supreme court. Readers, therefore, might have come away with a mixed view of the new chief justice: frugal and principled but also possessing a sense of entitlement.5

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The latter trait might seem almost a given for a chief justice; certainly many, if not most, of her predecessors had believed themselves entitled to special attention and conveniences—hence the use of a court limousine and driver.6 But few people had cared about a long line of middle-aged white men who seemed blandly indistinguishable from one another. Bird was a different story, and it remained unclear in spring 1977 how many people both on and off the court felt inclined to cater to a woman who, according to some, had not earned her title.

How Bird expected to be treated and how she reacted to the way others chose to treat her would help determine her success as California’s first woman chief justice. Her introduction to the court did not bode well for the future. Associate Justice Stanley Mosk still seethed from being passed over as chief justice, and he let Bird know immediately where he stood. “I certainly cannot blame you for being here,” he told her by way of welcome, “but I blame Jerry Brown for putting you here.” Mosk later admitted that she “never let me forget that statement.”7

He refused to let go of his anger, taking umbrage at every comment and action that he found irritating or offensive. For example, justices’ offices spanned the fourth floor of the court building in San Francisco. Once Bird made an offhand comment about leaving work so late that her colleagues’ chambers had all been dark. She knew this because the office doors featured windows above transoms. Mosk interpreted the remark as criticism of his work habits, so he hired a carpenter to cover his window with wood, making it impossible for Bird to know if he was inside. Bird explained that she had meant nothing by the comment, but Mosk remained resentful and unconvinced.8

Of the other five justices, only Mathew Tobriner and Wiley Manuel befriended Bird in her early days as chief justice. William Clark and Frank Richardson, both Reagan appointees, largely ignored her. Marshall McComb was a nonfactor; in May 1977 the Commission on judicial Performance forced his resignation, due to advanced senility. Governor Brown soon appointed Bird’s law school professor Frank Newman to replace McComb, but Newman did not join the court for several months.

Relationships with her fellow justices would not entirely define Bird’s tenure on the court, however. As law professor Preble Stolz phrased it, “Some great judges in history were . . . despised by the bar and hated by at least some of their colleagues.”9 Two of these were mid-twentieth-century U.S. Supreme Court justices—William O. Douglas and Warren Burger.

Associate Justice Douglas had been appointed by President Franklin D. Roosevelt. He was a strong civil libertarian who liked “people” in the abstract but was rude and dismissive to his colleagues and almost everyone else.

Richard Nixon had appointed Burger as Earl Warren’s replacement in 1969. “In his seventeen years as chief, Burger . . . managed to alienate all of his colleagues,” wrote Jeffrey Toobin. One associate justice, Potter Stewart, became so incensed that he responded eagerly to an approach from author Bob Woodward . . . letting the journalist know that he would cooperate with an extended investigation of the Burger court.”10

As in every bureaucracy, the staff held the key to smooth operations, and many employees of the California Supreme Court awaited Bird’s arrival with trepidation. Former chief justice Donald Wright had wandered the halls in his stocking feet, dropping into offices unannounced for friendly chats. Bird’s no-nonsense reputation made such an approach seem unlikely. Her first actions did not allay fears. As one writer put it, somewhat acerbically, she “did not have the good grace, as an outsider, to settle in slowly.”11

Instead, she hit the ground running, sending in a “transition team”—four hand-picked young attorneys, all men—to analyze all aspects of the court. No prior chief justice had ever utilized the services of a transition team or conducted what employees widely viewed as an investigation. Within days, her brusque manner and take-charge attitude had alienated many staffers. She later explained that she had only two weeks after her confirmation to transition from the Agriculture and Services Agency to the court, giving her little time for niceties or leisurely conversations. She had to learn an entirely new bureaucracy from the ground up. The range of her duties must have seemed staggering even to a workaholic.