Part One of Two
Are Jerry Brown’s judges a legitimate issue in this governor’s race? Some argue that no one remembers them; they were tossed of the Supreme Court 24 years ago; it is all ancient history. But Brown is running for re-election to the office he held for two terms. His record then is rightly an issue now, especially his record on judges.
Brown appointed seven Supreme Court justices between 1977 and 1982, and for most of his term his appointees formed a majority on the court. His most controversial appointee was Chief Justice Rose Bird, appointed in 1977 and removed from the court by the voters in 1986. Bird came to symbolize "Jerry’s Judges," and for good reason; she epitomized the Jerry Brown court: highly ideological, contemptuous of legal precedent, and openly partisan.
Right from the start Bird proved herself a terrible choice. Immediately upon taking office she picked fights with the court’s professional staff. This may not seem like much, but the Chief Justice is also chief administrator, and is responsible for assuring fair and impartial administration of the law. Bird ignored this. She forced out the court’s top lawyer, Donald Barnett, who had served four chief justices, even refusing to attend his retirement dinner. "She treated the staff of her predecessor as if they were agents of a foreign country," one former law clerk wrote.
Bird’s contempt for the public emerged in her first retention election in 1978. On Election Day, the Los Angeles Times reported that the court was sitting on a controversial opinion to gut the state’s popular "use a gun, go to jail" law. The public would not know of this decision before Bird and two other Brown justices were up for election. The decision did come out after the election. An investigation of the incident showed the petty infighting that was occurring among the justices on Bird’s court.
But it was a long series of rulings that placed the Brown court outside the judicial mainstream, especially in areas of criminal justice. One of their more bizarre rulings extended protection against unreasonable searches and seizures to a person’s garbage. "Even if you agree with the exclusionary rule, it’s gotten to the point where it is ridiculous," wrote a veteran trial judge about the Bird court. "I can understand the rationale of a person being safe in his home, but when you extend that to somebody’s garbage can, you wonder. Why garbage should be sanctified I’ll never understand."
The Bird court was a bonanza for trial lawyers, allowing every imaginable tort claim. One case became known as the "wrongful life" ruling. Here the Supreme Court permitted a child who claimed she should not have been born to sue her doctors for failing to diagnose a hereditary condition.
But the wreckage of the Supreme Court under Brown’s judges is best assessed by examining three separate matters, what I call the "three strikes" against Jerry’s Judges. That’s tomorrow.