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Monday, November 10, 2008


Page 7



Younger Makes Wrong Call in Voting to Confirm Rose Bird




Seventy-Eighth in a Series


Evelle J. Younger’s most controversial action—out of the multitude of actions he took as a judge, district attorney, and state attorney general—was voting to confirm Rose Bird as chief justice of California. It happened March 11, 1977.

There are those who are enraged to this day over that call. Democratic Gov. Jerry Brown wanted to appoint a woman as chief justice, and there were several sitting female judges to choose from, fully credentialed for the post and of like political persuasion to Brown’s. Yet, on Feb. 12, 1977, he announced that he had picked Bird. A political crony of his, she was serving as secretary of the State Agriculture and Services Agency (agriculture being a field in which she had no background). Bird had attained no higher post as a lawyer than deputy public defender in Santa Clara County, and she had taught some courses at Stanford School of Law in a clinical legal education program.

Younger had a say in the matter of whether Bird would sit because, as attorney general, he was a member of the three-person Commission on Judicial Appointments which confirms—or rejects—the governor’s nominees to the Court of Appeal or the Supreme Court. The members always include the chief justice and the attorney general, and, when it comes to judging the fitness of a nominee to the California Supreme Court, the state’s seniormost presiding justice of a court of appeal. (As to Court of Appeal nominees, the seniormost presiding justice in the nominee’s own district participates.)

The panel passing on Gov. Jerry Brown’s nomination of Bird was comprised, aside from Younger, of Acting Chief Justice Mathew O. Tobriner—Chief Justice Donald Wright had retired—and Court of Appeal Presiding Justice Parker Wood of this district’s Div. One.

How Tobriner and Wood would vote was believed to be known in advance of the March 11 hearing. In fact, the information was in print before Brown announced his selection. A front-page story in the Los Angeles Times on Feb. 12 reveals that Brown had “lobbied members of the Commission on Judicial Appointments to give advance approval to his appointment of California Secretary of Agriculture Rose Elizabeth Bird as chief justice of the state Supreme Court,” and discloses:

“Sources said that Tobriner gave Brown a commitment to vote for Ms. Bird but Wood turned him down.”

The article notes that Younger could not be reached for comment.

It did not seem likely that Wood—who had worked his way up from the post of justice of the peace of Los Angeles Township—would sanction Brown’s effort to catapult a person unaccomplished in law to the top spot in the state’s judiciary. It was, therefore probable that Younger held the swing vote.

An Associated Press dispatch carried in newspapers Feb. 13 —the day after Brown announced he was appointing Bird as chief justice and Alameda Superior Court Judge Wiley Manuel as an associate justice—quotes Younger as saying:

“Manuel is a good appointment, but not the other one.”

The dispatch goes on to relate:

“Younger told reporters he would consider only whether the appointee was qualified, not whether the best person was appointed or not.”

Younger, an unannounced candidate for the 1978 GOP gubernatorial nomination, was under pressure from his party to kill the nomination. An AP story on Friday, Feb. 18 begins: “Nineteen of the Assembly’s 23 Republicans urged Atty. Gen. Evelle Younger Thursday to vote against confirming Rose Bird as chief justice of the State Supreme Court.”

It goes on to say:

“Opposition to Ms. Bird…also has been expressed by two of Younger’s likely opponents for the GOP nomination for governor next year, San Diego Mayor Pete Wilson and Los Angeles Police Chief Ed Davis....

“Even if the letter doesn’t influence Younger—whose office says he has received hundreds of letters running heavily against confirmation—the Republican legislative opposition to Ms. Bird indicates a vote for confirmation might hurt Younger in next year’s primary.

“Davis said last weekend that Younger’s vote could be an issue.”

There was a countervailing consideration. “A lot of people said he would lose the women’s vote if he voted against her,” former Los Angeles County District Attorney Robert H. Philibosian recounts.

The theme of women’s groups was that Bird was being subjected to heightened scrutiny because of her gender, and charges of bias would inevitably have been leveled at Younger had he voted no.

The March 11 issue of the Modesto Bee carries an article by its political editor, Martin Smith, commenting:

“Whatever action the State Commission on Judicial Appointments takes on Gov. Brown’s nomination of Rose Bird as California chief justice, the events set in motion by that nomination are adding up to a political disaster for Attorney General Evelle Younger.”

Smith notes that Wilson and Davis “immediately sensed that Ms. Bird’s nomination put Younger in an unusually vulnerable position” and “have made the most of it.” He comments:

“Right now it appears that no matter how the attorney general votes on the Bird appointment he will be hurt politically.”

In an edition bearing the date of Feb. 25 but released before then, a newsletter called “The Political Animal” reveals that the commission “received a devastating letter re Bird from Roger Mahony, the liberal Catholic bishop of Fresno and former chairman of the state Agricultural Labor Relations Board when the chief-justice-designate was the cabinet secretary liaison.” The newsletter, penned by Joseph Scott (now director of communications for District Attorney Steve Cooley) says:

“Mahony’s communique reportedly criticized Bird’s arrogance and inability to communicate and suggested the panel query ex-Brown staffers who left the administration because of her for verification.”

The Times’ Feb. 24 edition credits The Political Animal with having broken the story as to the existence of the letter. It quotes Mahony (now a cardinal) as insisting the missive was intended for the eyes only of commission members, but relates that Younger responded: “I can’t conceive of any letter being kept confidential and it will be released.” On March 3, he provided reporters with copies.

Mahony’s letter, written the same day Brown announced his selection, says, in part:

“After careful reflection, I am writing to offer my vigorous opposition to her appointment as chief justice, and my qualified opposition to her appointment as a justice of the court.

“My opposition to her appointment as chief justice centers on her questionable emotional stability and her vindictive approach to dealing with persons under her authority.

“I experienced personally her vindictiveness on many occasions when the ALRB. an independent state agency, chose to pursue a course other than that desired by Ms. Bird.”

The letter also says:

“I am gravely concerned that the future chief justice be a person of balanced emotional stability, of judicial temperament, and of corresponsible collaboration with the other justices.

“In my experience and opinion. Ms. Bird fits none of these requirements.”

In providing the press with Mahony’s letter, Younger also distributed copies of her letter to Bird asking for a response to the bishop’s allegations, and posing 14 queries as to her views and background, such as: “Did you ever write any opinions or law review articles published under your own name?” Younger’s letter was termed in some newspapers a “job application.”

At the first session of the commission on March 8, Manuel was speedily confirmed and Bird was grilled by Younger. At the second sitting on March 11, Younger halted proceedings, with witnesses yet to be heard, to announce:

“I’m prepared to vote to confirm Rose Bird. I’ll do so reluctantly because I believe many California justices are better qualified to assume this position, but it’s the governor’s opinion that matters, not mine.”

He noted that the “law does not require that he appoint as a judge the best qualified or even a well-qualified person,” and declared:

“My limited responsibility requires only that I determine if Rose Bird is qualified. Absent any significant evidence to the contrary, I am compelled to find that she is.”

That depends, of course, on how you define “qualified.” If the inquiry is restricted to whether a nominee meets the state constitutional qualifications—that is, 10 years of membership in the State Bar—it would hardly be necessary to assemble the chief justice, attorney general, and seniormost Court of Appeal presiding justice to determine that. A clerk in the State Bar office could certify the nominee.

Obviously, “qualified” means “fit,” and a determination of that requires an exercise of judgment. It is difficult to imagine that any lawyer—male or female—who has had no bench experience and has not compensated for the lack of it through legal experience of a highly impressive nature could conceivably be said to be fit to hold the highest judicial position in the state.

The State Bar Commission on Judicial Nominees Evaluation did not exist then. If it had, a finding of “qualified” would have been improbable.

There were various theories as to why Younger voted to confirm.

The day following the confirmation, the Times ran an analysis by political writer Richard Bergholz suggesting that one reason might have been Younger’s desire to appear consistent. On March 3, 1973, he had voted—as did Wood—in favor of confirmation of an ally of Republican Gov. Ronald Reagan to the high court…with Wright casting a negative vote. The nominee, William P. Clark Jr., had flunked out of law school, taken a correspondence course, and passed the bar exam on his second try. The fact remains that Clark, though only marginally qualified, had been a Los Angeles Superior Court judge for two years and a Court of Appeal justice for 18 months.

The nomination of Clark, like that of Bird, was obviously for political reasons; there was no effort by the governor in either instance to make a “merit” appointment. But Wood was not a hypocrite in voting against Bird while having given a nod to Clark in light of the salient factor that Clark did have judicial experience, though scant, and Bird did not. Younger, had he dinged Bird, would likewise not have emerged as inconsistent.

In retrospect, it might well be that Younger and Wood erred in voting to confirm Clark. That was a call in 1973, and whatever decision either made then could not reasonably be said to have compelled or even impacted the decision each was to make in 1977 with respect to Bird. New nominee. New call.

Another theory is set forth in Martin Smith’s March 11 analysis. Smith says Republican legislators believed that Younger agreed to vote for Bird if Manuel—who had been in the AG’s Office for 23 years—were appointed by Brown as an associate justice. That was nothing but wild speculation.

Bird was a disaster as chief justice. She was result-oriented,  and voted to upset death sentences in all of the capital cases that came before her. She was disputatious and, as Mahony warned, vindictive. She brought turmoil to the judiciary. Voters rejected her 1988 bid for retention, also denying election to two other Brown Jr. appointees.

Los Angeles District Attorney Steve Cooley (whose wife, Jana, is a first cousin once removed to Younger) is of the same view as many in saying of Younger:

“He was a good attorney general. He made one huge mistake in my view, and that was not voting against Rose Bird in her confirmation hearing.”

Recalling that there was one negative vote, he says: “Evelle could have said ‘no’ and that would have been the end of Rose Bird.” Cooley continues:

“I think that that failure to just pull the trigger on her was the probably biggest mistake that he made because it caused grief for law enforcement, prosecutors, for the next two decades. We’re still experiencing the fallout from some of the Rose Bird opinions....”

The AG’s son, retired Los Angeles Superior Court Judge Eric Younger, says of his father voting to confirm Bird:

“He didn’t like it much when he did it. Rose Bird is somebody he would never have appointed.”

He relates that his father felt bound to vote as he did by virtue of positions he had taken in the past. Eric Younger brings to mind his father’s vote in favor of confirming his own chief assistant attorney general, Herbert L. Ashby, as a member of the Court of Appeal.

Nominated by Reagan in 1972, he drew a negative vote fromWright in light of his lack of judicial experience. Joining Younger in granting approval was Wood.

As with Clark, however, there was a distinction. Ashby was appointed to the Court of Appeal; Bird was named chief justice of the state. Ashby held the No. Two spot in the Attorney General’s Office and had been the county counsel in Ventura; Bird had been a deputy public defender.

As Cooley puts it:

“She clearly wasn’t qualified, and [Evelle Younger] could have said that.”

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