Jerry Brown and the Rose Bird factor

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Jerry Brown hadn’t even formally announced that he was running for governor when the San Francisco Chronicle brought up the name of Rose Bird.

It’s fine to talk about where Brown is vulnerable, and there’s no shortage of material. The guy has a long public record; anyone who served two terms as governor in the 1970s and early 1980s, and two terms as mayor of Oakland, and one term as chair of the state Democratic Party, and did a couple of years as a KPFA talk show host, is going to have baggage. He’s also got a wealth of experience.

But the Rose Bird stuff is a cheap shot.

Here’s how the Chron describes it:

Rose Bird: As governor, Brown appointed Bird to be chief justice of the state Supreme Court. After she invalidated the death sentence of every case she reviewed, voters in 1986 made her and two others the first judges unseated from the court. To voters older than 45, Bird's name is shorthand for "liberal judges."

Actually, voters ousted her after a savage campaign funded by big business interests who were mad at her pro-labor and pro-free speech rulings. The death penalty was their weapon, and even then it was pretty bogus: The Bird Court consistently upheld the constitutionality of the death penalty.

But in the early 1980s, death-penalty law was unsettled in the United States; the U.S. Supreme Court had in 1977 ruled that executions were legal in America, but set strict standards for states to follow. Most states were struggling to sort out what the ruling meant and to figure out how to comply. By 1986, when Bird was under assault, 38 states had adopted death-penalty laws, but only 13 had actually executed anyone. In conservative states like Arkansas, Kentucky, Mississippi and Tennessee, judges were trying to determine if the laws fit the Supreme Court’s standards -- essentially what the Bird Court was doing in California.

And in California, the death-penalty statute had been written by John Briggs, the guy who wanted to keep gay people from teaching in the schools. The Briggs law was, by all accounts, poorly drafted, unclear and convoluted, and applying it under the federal standard was a challenge.

In other words, as we wrote at the time (In Defense of Rose Bird, Sept. 3, 1986):

The charge that the Bird court has refused to enforce the death penalty is simply inaccurate ... the California Supreme Court has simply been doing what most state and federal courts have done over the past ten years: carefully scrutinizing death sentences to ensure that they are valid under the federal and state constitutions and complex and ever-changing standards of the U.S. Supreme Court.

The real issue didn’t make the press. Again, from our cover story at the time:

For nine years, the California Supreme Court, headed by Chief Justice Bird, has led the nation in advancing the causes of free speech, civil liberties, environmental protection and the rights of tenants, senior citizens, women, minorities and organized labor.

 Big-business interests organized and funded a massive campaign to get rid of Bird -- not because of the death penalty but for purely economic reasons.

The Chronicle got it wrong back then, and is getting it wrong again today.

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