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As for the allegation that the court is soft on crime, her backers claim it has sided with the prosecution 90% of the time. Then why has no execution yet taken place in California during her tenure? Bird blames the fuzzy language of the state's 1978 death-penalty initiative and argues that the California Supreme Court has been getting the wrinkles out of the law. Executions will be upheld more easily, she predicts, when trial courts begin applying the justices' guidelines in new cases. "The death penalty is alive and well in California," Bird insists.
Intricate court reasoning can be hard to defend in a 30-second television commercial, however, and Bird has scarcely tried. On Labor Day weekend, with seven death-penalty cases coming up for argument before her court, she began airing a $250,000 series of campaign commercials in which capital punishment is never mentioned. Instead, in language she wrote herself, she intones from a setting that resembles a law office, "Judges with a backbone are a California tradition worth keeping." An admirable sentiment but one unlikely to disarm her opponents.
To the despair of the Committee to Conserve the Courts, her campaign ( group, the chief is a highly reluctant warrior. Relying on just a small group of volunteers, she has already sacked two top campaign strategists because "they wanted me to send direct mail that said nasty things," she explains. "I don't feel comfortable with the political process."
Bird has never been completely comfortable, either, with the legal establishment. She has the formal backing of many lawyers but not the sort of fiery protective outrage her campaign badly needs. And judicial propriety makes it impossible for her to answer blow for blow.
Judicial elections have sometimes seemed like an antidote to the practice of dispensing judgeships as trophies of political patronage. But the fervent campaign against Bird points up a conundrum. While it is sensible to be able to recall judges for corruption or incompetence, is it desirable for them to have to worry about voters when they make their legal judgments? Courts were never intended to reflect the popular will in the manner of legislatures. In judicial elections, says Berkeley Law Professor Franklin Zimring, "you walk the tightrope between democratic accountability and popular passion. Everybody agrees that accountability is fine and passion stinks, but how do you tell the difference?"