Cairns: The Case of Rose Bird

The Case of Rose Bird book cover

Kathleen Cairns, journalist turned professor of women’s studies and history has not just produced the definitive biography of Rose Bird, California’s first woman supreme court justice, but also written a powerful analysis of gender and judicial politics relevant today.  Cairns’s snappy writing has created a readable, thorough, and comprehensive narrative of the California voters’ decision not to retain Bird as Chief Justice in 1986.  Previous attempts were incomplete and either ignored gender (law professor Preble Stolz[1]) or failed to fully explain the context of judicial doctrine and politics (journalist Betty Medsger).[2]  Finding the right mix of personal biography, legal doctrine, judicial politics, and lessons on gender and leadership to create a biography of a woman judge is difficult,[3] and The Case of Rose Bird is exemplary.

Just as we now understand the bombing of Guernica to be the warm up for the Nazi genocide, fascism, and World War II, we should see Bird’s ouster as round one of the gender and judicial politics wars that included Robert Bork, Anita Hill, OJ Simpson, and most starkly, Donald Trump’s presidential campaign against Hillary Clinton.  The public scrutiny Bird’s nomination received, the televised commission hearings of the allegation that her court had delayed death penalty decisions, and the multiple campaigns to remove her from office pulled back the curtain on the judiciary to reveal a human institution rife with petty personal rivalries, corruption, incompetence, and resistance to change, most notably, its profound resistance to women leaders. The book ends before the 2016 election, and Cairns muses about how quiet judicial politics is now in California, but I would argue the genie out of the bottle. The Brethren,[4] Closed Chambers,[5] The Nine,[6] the Senate’s refusal to consider Merrick Garland, and Trump’s presidential campaign can never be returned—we have awakened from the noble dream.[7]

Cairns painstakingly mines the historical record for an examination of gender, from Bird’s early disavowal of feminism (p. 55) to her speculation on the role of gender in her case to her many comments on gender and her coverage in the feminist press. Cairns also uncovers many more examples of the double standards that demonstrate gender bias.  Other jurists, such as Earl Warren, ascended to the bench with no previous judicial experience.  Bird merely continued down the path of the California Supreme Court leading a progressive trajectory of doctrine that her male predecessors had begun, presaging Loving v. Virginia,[8] Mapp v. Ohio,[9] equal protection doctrine (Sail’er Inn v. Kirby)[10] and more.

Cairns carefully shows how Governor Deukkmejian and other conservatives created symbolic Rose Bird (much as tort ‘reformers’ created symbolic Stella, the woman who sued McDonalds for burns from spilled coffee)[11] using gender rage and discomfort over women’s power and expertise to effectively counter the power of trial lawyers, workers, criminal defendants, and progressives more generally.  Donald Trump could have drawn the playbook from California; campaign cries of “iron my shirts” and “lock her up” were echoes of the intensely personal campaigns against Bird—Democrats, feminists, and jurists ran for cover.

For all her painstaking accuracy about Bird, however, Cairns makes several mistakes.  Shirley Abrahamson was on the Wisconsin not Minnesota Supreme Court (p.90).  Marsha Ternus is the first woman chief justice in Iowa (p.243); Linda Neuman (1986-203) was the first woman justice. More importantly, I would have liked Cairns to develop both the gender argument and the judicial politics more fully.  She persuades me that Bird made serious missteps by not choosing to campaign and by failing utterly to cultivate positive relationships with the press.  Contemporaries who froze, such as Supreme Court Justice Penny White in Tennessee, fell; those who countered, like supreme court justices Rosalie Wahl in Minnesota, Dana Farber in Alaska and Barbara Pariente in Florida retained their seats.  More intriguing is Cairns’s speculation that the fatherless Bird lacked men mentors to advise her in dealing with the media and navigating the internal politics of the Court. I would have liked her to develop this argument more fully, drawing on works in women and leadership such as Sylvia Hewlett’s[12] or Robin Ely’s.  Women who are groomed by men, whether they are attorney fathers (Lorna Lockwood, Arizona; Susie Sharp, North Carolina) or bosses (Sheryl Sandberg, Larry Sommers) may stand a better chance and finding their way through what Eagly and Carli call “the labyrinth of leadership.”[13]  But I would also would have liked her to delve more deeply about the intersection of gender and likeability.  California’s second woman chief justice, Tani Cantil-Sakauye, may not face the same hostility Bird endured but the 2016 presidential election proves that the gender and judicial wars are waging hotter than ever.

Kathleen A. Cairns.   The Case of Rose Bird: Gender, Politics, and the California Courts.  Lincoln, NB: University of Nebraska Press, 2016.

[1] Stolz, Preble.  1981.  Judging Judges: The Investigation of Rose Bird and the California Supreme Court.  New York: Free Press.

[2] Medsger, Betty.  1983.  Framed: The New Right Attack on Chief Justice Rose Bird and the Courts.  New York: Pilgrim Press.

[3] For another good example, see Linda Hirshman.  2015. Sisters in Law: How Sandra Day O’Connor and Ruth Bader Ginsburg went to the Supreme Court and Changed the World.  New York: Harper.  Sanger, Carol, “Curriculum Vitae (Feminae): Biography and Early American Women Lawyers.” Stanford Law Review, Vol. 46, p. 1245, 1993; Columbia Public Law Research Paper No. 06-132. Available at SSRN: https://ssrn.com/abstract=952029.  See also Sally J. Kenney. 2013. Gender and Justice: Why Women in the Judiciary Really Matter.  New York: Routledge.

[4] Bob Woodward and Scott Armstrong, New York: Simon and Schuster, 1979.

[5] Edward Lazarus New York: Penguin, 1998.

[6] Jeffrey Toobin, New York: Anchor Books, 2007.

[7] Kenney, Sally J. (2016) “Toward a Feminist Political Theory of Judging: Neither the Nightmare nor the Noble Dream,” Nevada Law Journal: Vol. 17 : Iss. 3 , Article 3. Available at: http://scholars.law.unlv.edu/nlj/vol17/iss3/3.

[8] 388 U.S. 1 (1967).

[9] 367 U.S. 643 (1961).

[10] 5 Cal.3d 1 (1971).

[11] William Haltom and Michale McCann, Distorting the Law: Politics, Media, and the Litigation Crisis.  Chicago: University of Chicago Press, 2004.

[12] Sylvia Ann Hewlett.  2013.   Forget a Mentor, Find a Sponsor.  Cambridge: Harvard Business School.

[13] Alice H. Eagly and Linda L. Carli.  2007. Through the Labyrinth: The Truth about how Women Become Leaders.  Cambridge: Harvard Business Press.

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