SJK - Book Review of The Case of Rose Bird: Gender, Politics, and the California Courts

The Case of Rose Bird Gender, Politics, and the California Courts Kathleen A. Cairns (Lincoln: University of Nebraska Press, 2016. x, 328 pp. Illustrations, notes, bibliography, index. $36.95) 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 accounts were incomplete and either ignored gender (Judging Judges [1981] by the law professor Preble Stolz) or failed to fully explain the context of judicial doctrine and politics (Framed [1983) by the journalist Betty Medsger). Finding the right mix of personal biography, legal doctrine, judicial politics, and lessons on gender and leadership to generate a biography of a woman judge is difficult, and The Case of Rose Bird is exemplary.

Just as we now understand the bombing of Guernica to be the warmup 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, O. J. 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 to reveal a judiciary 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 is out of the bottle. Bob Woodward and Scott Armstrong’s Brethren (1979), Edward Lazarus’s Closed Chambers (1998), Jeffrey Toobin’s Nine (2007), the Senate’s refusal to consider Merrick Garland, and Trump’s presidential campaign are all points of no return—we have awakened from the noble dream.

Cairns painstakingly mines the historical record for an examination of gender, from Bird’s early disavowal of feminism to her speculation on the role gender played 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 progressive doctrinal path her male predecessors on the California Supreme Court had set, presaging Supreme Court decisions in Loving v. Virginia, Mapp v. Ohio, equal protection doctrine (Sail’er Inn, Inc. v. Kirby), and more.

Cairns carefully shows how Governor George Deukmejian and other conservatives created symbolic Rose Bird (much as tort “reformers” created symbolic Stella, the woman who sued McDonalds for burns from spilled coffee) 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’s playbook could have come straight from California. Hillary Clinton’s hecklers’ shouts of “iron my shirts” or Trump supporters’ screams to “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 was the first woman chief justice in Iowa (p. 243); Linda Neuman was the first woman justice in Iowa. More important, 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 choosing not to campaign and by failing utterly to cultivate positive relationships with the press.

Contemporaries who refused to aggressively answer negative campaigns, such as the supreme court justice Penny White in Tennessee, fell; those who countered, like the supreme court justices Rosalie Wahl in Minnesota, Dana Farbe 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 on women and leadership such as Sylvia Hewlett’s 2013 (Forget a Mentor) Find a Sponsor or Robin Ely’s (In the Harvard Business Review). Women who are groomed by men, whether they are attorney fathers (Lorna Lockwood, Arizona; Susie Sharp, North Carolina) or bosses (Sheryl Sandberg, Larry Summers may stand a better chance of finding their way through what psychologists Alice H. Eagly and Linda L. Carli call “the labyrinth of leadership” (Through the Labyrinth [2007]).

But I would also have liked her to delve more deeply into 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 raging hotter than ever.

Sally J. Kenney Tulane University