My turn: Recalling Jerry Brown’s first Supreme Court choice as his final pick faces confirmation

By Kathleen A. Cairns

Kathleen A. Cairns teaches history and women’s studies at Cal Poly, San Luis Obispo, and is the author of “The Case of Rose Bird: Gender and Politics in the California Courts,” kcairns@calpoly.edu. She wrote this commentary for CALmatters.

Jerry Brown was 38 years old and two years into his initial term as California’s governor when, in March 1977, he appointed his first two California Supreme Court justices.

Forty-one years later, at the age of 80, with only weeks left in his final term, his last justice is about to be confirmed.

In his unprecedented four terms, he has now appointed 11 high court justices, three more than his father, Pat Brown, who served two gubernatorial terms in the late 1950s and 1960s.

Befitting a governor who came to office wanting to shake things up, his first two appointments to a court consisting entirely of white men went to a woman and an African American.

Rose Elizabeth Bird, the court’s first woman, remains Brown’s most consequential judicial appointment. Largely forgotten today, for a decade Bird was deemed the most controversial woman in California. In fact, it is possible to date the rise of today’s bare-knuckled judicial politics to her tenure atop the state’s highest court.

Brown and Bird had been friends at UC Berkeley. She had volunteered for his 1974 gubernatorial campaign. When he eked out a victory, he appointed Bird as his agriculture secretary, making her the first female cabinet secretary in California history.  When Chief Justice Donald Wright retired in 1977, Brown tapped the 40-year-old Bird as his replacement.

Before Bird’s appointment, few Californians could name a single state high court justice, despite the fact that, over a 30-year period, the court had issued pioneering rulings on everything from civil damages to interracial marriage, search and seizure laws and the death penalty.

Bird’s arrival represented a sea change. Virtually everyone in the state, and far beyond, could soon summon the name of at least one justice—the woman who sat atop the so-called “Bird court.”

Conservatives had long simmered over liberal court rulings and quickly pounced. Ordinarily a pro forma affair, her March 1977 confirmation hearing drew 1,000 letters and dozens of witnesses. Barely confirmed, she immediately faced a firestorm of opposition from high-powered political operatives, such as Ronald Reagan acolyte Edwin Meese. They made removing Bird from the court a top priority.

All of Bird’s predecessors had been part of a longstanding and exclusive “men’s club,” an “insider” network that began in law school and continued long afterward in legal circles and academia. Bird had never been part of the “club.” Plus, she represented Jerry Brown, the conservatives’ bete noir.

She had never been a judge. She had been a defense attorney and could be framed as overly sympathetic to criminals at a time when hysteria about crime was at a fever pitch. Her professional success could be construed as threatening.

Though she was reluctant to call herself a feminist, critics capitalized on the fears of “ordinary” people who saw Second Wave feminism as part of a zero-sum game that denied men good jobs. Her personality also helped fan the flames; she was intense, prickly and not inclined to suffer fools gladly.

Bird had six colleagues, but was the public face of the court. Throughout her ordeal, she found little overt support from the man who had appointed her. The brutal 1986 campaign that ended her judicial career included emotional TV ads featuring parents of murdered children who blamed Bird for the deaths. By this point, Brown had completed his second term and was no longer governor. George Deukmejian, a Republican lawmaker and attorney general from Long Beach, had ridden antipathy to Bird into the governor’s corner office.

In the end, the long and unrelenting campaign brought down not only Rose Bird, but two other Jerry Brown appointees. They included Cruz Reynoso, the court’s only Latino. The defeat gave Deukmejian three vacancies; he filled them with conservative jurists—all white men.

Bird may have been gone, but the larger battle over the judiciary was just beginning. Next to fall was Robert Bork, denied a seat on the U.S. Supreme Court the year after Bird’s defeat.

Bork and Bird soon joined forces in a series of lectures decrying the politicization of the courts. Then came Clarence Thomas and allegations of sexual harassment. The fight soon moved back to the states, where high court justices, targeted for unpopular rulings, lost their seats. Judicial elections had become big money affairs—nearly $400 million spent between 2000 and 2010.

In his final two terms, Jerry Brown has appointed four justices, a majority of the seven-member court. None has ever been a judge. Three are people of color—Goodwin Liu, Mariano Florentino Cuellar, and Leondra Kruger. They join three appointees of Republican governors, two of whom also are non-white. Brown’s most recent appointee, Joshua Groban, will be the only white male justice when he is confirmed, a virtual certainty, on Friday.

Today’s court again is led by a woman, Chief Justice Tani Cantil-Sakauye. The court’s rulings rarely resonate beyond legal circles. Few Californians can recall the name of even a single justice. Diversity is now a given. The war on the judiciary continues.