In 1986, Rose Bird declined to be interviewed by the Los Angeles Times, saying she was not giving any press interviews.  It then came to light that she had been interviewed by a vegetarian newspaper.  When this inconsistency was brought to light, she agreed to be interviewed by the LA Times.  In that interview, she refused to give a direct answer to the question whether she would vote to affirm a death penalty conviction and sentence if she were persuaded that there had been no legal errors of any sort in the trial.  Because of her position, I think the argument between Mark Scarberry and Jim Lacy over "soft on crime" versus "unwillingness to follow the law" is somewhat artificial.

         I voted for Rose Bird's retention solely because I believe in personal loyalty and because in my personal dealings with her she was unfailingly courteous and cooperative.  But the injustice in that election, in my opinion, was not the defeat of Bird, but that Cruz Reynoso and Joseph Grodin went down with them.  Reynoso and Grodin were too activist for my taste, but I believe they were intellectually honest.

         I do not believe, pace Trevor Potter, that consistency requires favoring or opposing judicial elections at both the federal and state levels.  I favor elections for state judges but not for federal judges.  But I believe the proper remedy at the federal level would be for widespread agreement on the position taken by President Jefferson, Jackson, and Lincoln, that Supreme Court constitutional rulings are conclusive in the particular litigation but not binding on the other branches, to the extent they disagree.

             Best,

             Daniel H. Lowenstein
             Director, Center for the Liberal Arts and Free Institutions (CLAFI)
             UCLA Law School
             405 Hilgard
             Los Angeles, California 90095-1476
             310-825-5148


________________________________
From: election-law-bounces@mailman.lls.edu [election-law-bounces@mailman.lls.edu] On Behalf Of WewerLacy@aol.com [WewerLacy@aol.com]
Sent: Tuesday, November 02, 2010 8:49 AM
To: Mark.Scarberry@pepperdine.edu; election-law@mailman.lls.edu
Subject: Re: [EL] more news II 11/1/10

Mark, you are making a mistake that academics who are not into the real world nitty gritty of election campaigns sometimes make.   Your are judging an outcome of an election by substituting your academic perceptions for the voters perceptions, and therefore, your conclusion is wrong.  Maybe your perception is that Rose Bird failed because she was unwilling to follow the constitution (even though Bird famously once stated that her "role is to do what's right under the Constitution.   And if that's politically unpopular, so be it.").   However, that was definitely not the voters principal perception in 1986.  Voters are smart, but not so smart that they understand constitutional principles the way you do.  The "reasoning voter" works off of campaign advertising and other clues extant during the election campaign.  And what voters actually understood as the reason to reject Rose Bird was not a generalized perception that she did not follow the constitution.  Instead, it was und!
 erstanding obtained from the advertising and other clues they received during the retention election, and that was all about Rose Bird's poor record on the death penalty and overturning convictions of criminals.

The tenor of the campaign against her in 1986, lead by Judge Tony Raukaukas, now the DA of Orange County, was all about her position on crime, and themes about constitutionalism, if they could even be grasped by voters beyond that issue of her failure to employ the death penalty law, were very secondary.  Though opposed by Governor Jerry Brown, California reinstated the death penalty in 1977, and Rose Bird (who at one time actually was Jerry Brown's campaign driver) came to the bench systematically voted to overturn 64 death penalty sentences that came before her.  Bird perceived her judgments in these 64 cases as nevertheless constitutional.  Those actions however were the center piece of her retention election and the reason why she lost her seat, because as translated to and by the majority of voters who rejected her, she was perceived as "soft on crime."

-Jim Lacy


Read more: Rose Elizabeth Bird - Court, California, Law, Public, Office, and Supreme http://law.jrank.org/pages/4764/Bird-Rose-Elizabeth.html#ixzz148iQBx9T

In a message dated 11/1/2010 10:25:19 P.M. Pacific Daylight Time, Mark.Scarberry@pepperdine.edu writes:
Rightly or wrongly, the perception of Chief Justice Bird was that she was unwilling to follow the clear mandates of the California Constitution. It was not primarily a matter of a perception that she was "soft on crime."

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