The following contribution comes from Kathleen A. Cairns, author of The Case of Rose Bird: Gender, Politics, and the California Courts (Bison Books, 2016). Cairns is a lecturer of history and women’s studies at California Polytechnic University, San Luis Obispo. She is the author of several books, including Proof of Guilt: Barbara Graham and the Politics of Executing Women in America (Nebraska, 2013).
Her book is currently on sale in honor of Women’s History Month.
For many feminists, Hillary Clinton’s defeat last November seemed unfathomable.They had come so far, and the presidency had been so close. Even though the campaign on both sides had seemed unprecedented in its bitterness, feminists clung to the notion that their time had finally come. Many bought pantsuits to celebrate what surely would cap off five decades of activism and hard work.
They might have been less optimistic had they recalled another election exactly thirty years earlier in California. It, too, featured a “first” woman embraced by the feminist movement. Like Clinton’s, the campaign against Rose Elizabeth Bird had been brutal, focused on hot-button cultural issues designed to appeal to an electorate much more conservative than the state’s current voters. And the election ended in ignominious defeat for Bird.
By November 1986, Bird had spent nearly a decade as the first female chief justice of the California Supreme Court, the nation’s most prestigious state judiciary. Her 1977 appointment by Gov. Jerry Brown—yep, that Jerry Brown—had drawn praise, but also criticism and outrage: She was a crony of Brown, her UC Berkeley classmate, thus she had not earned her high-powered job. She had never been a judge. She had, however, been a public defender and, as such, could be framed as sympathetic to hardened criminals, and unsympathetic to crime victims.
Virtually no one mentioned gender, but the notion of an “uppity” woman catapulted into a “male” job, clearly played a role in the troubles that would plague Bird throughout her tenure.
The California Supreme Court had long been the bete noir of conservatives, who disliked its liberal rulings. But it was considered off-limits politically because of the elite status of its white, male justices. Bird’s appointment offered a whole new world of possibilities to those who longed to turn back the clock to a time when women didn’t strive for “equality” and politicians didn’t cater to civil rights activists.
Rose Bird joined the court in late March 1977 and opponents didn’t wait long to pounce. California, like the majority of other states, requires appellate justices to periodically face voters in order to retain their seats. Bird’s first challenge came in November 1978. Historically, judicial elections drew yawns and low turnout, but anti-Bird forces saw the potential for success via campaign tactics then gaining traction on the right: pinpointing single issues designed to elicit passionate voter responses, sending direct mail solicitations to targeted voters, and crafting 30-second attack ads to reinforce their message. Such tactics have since become a staple of campaigns on both sides of the political aisle.
To defeat Bird, opponents honed in on the notion that she had abetted the rise of violent crime; specifically murder and rape. The latter category seemed designed to remind voters of Bird’s gender without actually mentioning it. Campaign consultants culled selective quotes from her ruling in a particularly high-profile rape case. They crafted a TV ad depicting a sobbing rape victim fleeing an elevator. The subtext: feminists won’t protect you from rapists.
In the end, Bird prevailed, but narrowly, winning less than fifty-two percent of the vote.
Their near-success emboldened opponents. Her next confirmation election would come in 1986, and conservatives embarked on an unrelenting campaign designed to turn even the most ambivalent voters against her. They ramped up images and newspaper stories bannering Bird’s “pro-criminal” rulings. Ads featured relatives of dead children, murdered by recidivist sex offenders. Bird didn’t care about murdered children, critics implied, since she had never married and had spent her life focused on her career.
Left unmentioned were the businesses that underwrote the campaign against Bird. Among her judicial rulings were those favoring plaintiffs—renters, employees, union activists.
Bird, like Hillary Clinton in 2016, sometimes unwittingly played into her opponents’ hands and gave them ammunition to use against her. For example, she voted to overturn every death sentence that came before the court. Her explanations raised valid points—laws were contradictory and unclear—but they often bore hints of disdain and moral superiority. And, like Cllinton, Bird possessed some personal traits that harmed rather than humanized her. She was defensive, untrusting, and obsessed with privacy.
In the end, it wasn’t close. More than sixty percent of voters chose not to retain her as chief justice. She lived only thirteen more years after her defeat, dying of breast cancer in 1999.
Despite the similarities, a lot has changed in thirty years. The notion of “first woman” for anything but the White House generally has gone by the boards. Every state has had at least one female state Supreme Court justice. California currently has four women on its seven-member court, including Chief Justice Tani Cantil Sakauye. California also has two female United States senators, as do New Hampshire and Washington.
And feminism is enjoying a resurgence of sorts, particularly among millennials. During Bird’s heyday when Hillary Clinton was beginning her career, feminists were framed as prim, judgmental, white women who looked down on or ignored more traditional women, and women of color. Today, women of every ethnicity and age embrace and celebrate the term.
Feminists still carry some baggage from the earlier era, but the good news is that every woman who reaches for the brass ring, even if she fails to grasp it, makes is slightly easier for those who come after.