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Is a Rose Bird redux in the cards?

December 5, 2008 |  6:00 am

Rose_birdCalifornia legislators can be a fearful lot. They're fearful of doing anything to mess with Proposition 13 -- remember how fast Arnold Schwarzenegger shut down billionaire Warren Buffett for saying that maybe it should be recalibrated?

And since the recall of Governor Gray Davis, they've been alert to the threat that that nearly century-old instrument of voter wrath and righteousness might be unleashed at any time.

California judges have reason to fear the recall, too -- and maybe to fear it a lot. Two words: Proposition 8. Two more words: Rose Bird.

In 1986, Bird, the state Supreme Court chief justice, was thrown off the bench in a recall by voters who were angry that she had never upheld a death sentence for a California prison inmate. As I wrote of her when she died in 1999, ''if only Bird's vote had counted, death row would have hung out a vacancy sign.''

It's a curious hybrid system that has judges and justices appointed by a governor, but then requires them to stand before voters just like politicians, but without party affiliation or drum-beating campaigns.

Nine recall attempts were launched against Bird -- six of them in 1982 alone. In 1986, the tenth try -- funded by millions of dollars and fueled by voter disgust -- succeeded. She and two other justices were recalled by voters.

The sleeping giant of recall had been roused. A year or so before Bird died, anti-abortion groups tried but failed to take down two justices, both Republican appointees, who had voted to overturn a state law mandating parental consent for teenagers' abortions.

As the opponents of Proposition 8 say they'll go back to the ballot to reverse the ban, the supporters of Proposition 8, the anti-gay marriage initiative, are promising that they'll go after the hides of any state Supreme Court justices who vote to undo Proposition 8.

So on some Election Day not too far away, there may not only be an initiative on your ballot asking whether you want to undo Proposition 8 -- you may also be asked whether you want to recall some state Supreme Court justices.

Otto Kaus, one of the justices recalled along with Bird, once admitted that while impartiality comes first, last and in between for justices, it was hard to get the threat of a recall out of his mind. ``It was like finding a crocodile in your bathtub when you go to shave in the morning. You know it's there, and you try not to think about it, but it's hard to think about much else while you're shaving.''

This Supreme Court has already ruled that banning gay marriage via statute is unconstitutional. Whatever it rules about the change Proposition 8 made to the state constitution, it's in for a very close shave.

The photo of Rose Bird is from the Times' archives.

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