Rose Bird's trial by ballot fascinates US. California chief justice is in vortex of national debate on death penalty

Next week's judicial elections in California will give voters more than a chance to express their sentiments about Rose Elizabeth Bird, the controversial chief justice of the state Supreme Court. Their verdict will also help shape the laws of the nation's largest state into the next century.

And if Rose Bird and two associate justices who have been targeted for defeat by political conservatives and other groups are unseated, many analysts expect this to spur similar drives elsewhere.

If, on the other hand, the three justices retain their seats, or if only Chief Justice Bird is removed, most expect the impact to be largely limited to California.

``Conservatives, if they knock off one or more, will be emboldened to do similar things'' in other states, says Prof. Roy Schotland of the Georgetown University Law Center, an expert on judicial elections.

The California election is considered one of the most extraordinary in American judicial history. One reason is the amount of money being spent -- close to $7 million by Bird foes and some $1.5 million in support of the chief justice, a record even in this era of increasingly contentious and costly court campaigns.

The California campaign has also been unusually long and divisive. It has occupied voter attention for almost two years, sharply divided the state's legal community, and injected itself into almost every other major race in the state.

The campaign to unseat Bird and Associate Justices Joseph Grodin and Cruz Reynoso, all of whom were appointed by former Democratic Gov. Edmund G. Brown Jr., centers on both the death penalty and the politics and personality of the chief justice, the first woman to sit on the high tribunal. Critics contend that the liberal justices have tried to expand the rights of criminal defendants and have systematically thwarted the carrying out of the death penalty, despite overwhelming public support for capital punishment. Some prosecutors, business leaders, and others have joined conservatives in trying to unseat the justices.

During Bird's nine-year tenure, the court has reversed all but three of the 55 death-penalty sentences that have come before it. The chief justice has voted against every one of them.

Bird backers blame the murky language of the state's 1978 death-penalty initiative. They say the law has been extremely vulnerable to constitutional challenge.

The chief justice accuses her opponents of trying to ``politicize'' the court by setting up a ``house of puppets.''

In recent weeks, the reluctant ``candidate'' has stepped out of the cloister of the court to campaign aggressively. She accused Republican Gov. George Deukmejian, a strong opponent, of wanting a ``house of death'' to advance his political career.

But most analysts consider Bird's new activism far too little and too late. Polls show the top jurist will have to overcome almost 2-to-1 odds to win a 12-year term.

``I'm not convinced she could have won'' if she had come out sooner, says Larry Berg, a political science professor at the University of Southern California. ``But an effective campaign would have at least given her a fighting chance.''

The big mystery is what will happen to Justices Reynoso and Grodin, who have tried to distance themselves from the chief justice. The results of an opinion survey, published this week by Teichner Associates, showed more voters in favor of removing the two justices than retaining them. But more than half were undecided.

What happens to Grodin and Reynoso will help determine the ideological balance on one of the most prominent state supreme courts in the land. A loss by either, along with Bird, would give the next governor the opportunity to erase the liberal majority that has guided the tribunal's decisions since the end of World War II.

Such a historic realignment would seem likely if Mr. Deukmejian, a Republican, were reelected. His only two appointments to the bench have been moderate conservatives. Deukmejian is leading his Democratic challenger, Mayor Tom Bradley of Los Angeles.

Even if only Rose Bird goes down, though, there will be repercussions. She would be the first Supreme Court justice to lose a reconfirmation vote in California. The chief justice assigns cases on the court and is instrumental in laying out administrative guidelines for the state's lower courts. Some legal experts think Bird's removal would send a warning to the other justices that they can't stray too far from the public will. Many scholars believe that, carried to extremes, this could lead to a court that makes rulings based on voter whim instead of legal principle. Others argue that some accountability is needed.

``I hope some of the extremes are corrected,'' says Phillip Johnson, a University of California at Berkeley law professor and Bird critic.

The Bird situation may be unusual enough that her removal alone would not encourage moves in other states to ``target'' judges for removal. But there is some evidence that it already has had an impact. In North Carolina, a conservative group is battling to defeat a longtime justice running for chief justice of the that state's Supreme Court, and organizers have indicated that they were inspired by the anti-Bird drive. Conservatives are also trying to unseat a criminal appeals court judge in Oklahoma.

``I think what will happen out of this is that it will make some very good people think twice about accepting judgeships,'' says Michael Wald, a Stanford University law professor and Bird supporter.

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