BOOKS: ​“The Case of Rose Bird,” and the Continuing Power of Money in Judicial Elections

In 1986, California voters removed Rose Bird, the state’s first female supreme court chief justice, from office after conservative groups spent more than $10 million in a recall effort that portrayed her as “soft on crime,” emphasizing her court opinions overturning death sentences that had been unconstitutionally imposed. Ten years later, Tennessee Supreme Court Justice Penny White lost a retention election after death penalty proponents and other conservative groups targeted her for voting with the court majority in a 3-2 decision overturning a death sentence that had been imposed in a rape-murder case. Similar efforts to remove justices from state supreme courts in Kansas and Washington failed in the November 8, 2016 elections. As recent events illustrate the continuing power of money in judicial elections, a new book, The Case of Rose Bird: Gender, Politics, and the California Courts, chronicles Bird’s career and the repeated efforts to remove her from office. A recent report from the Brennan Center for Justice suggests that outside money continues to play an outsized role in judicial elections today. The Brennan Center found that this year, TV spending in state supreme court races set a record of $19.4 million. Seventeen of the 20 groups that spent money on such elections this cycle do not disclose their donors, making it difficult to identify the people and groups weighing in on judicial races. But in Kansas, four of the five justices facing reelection were targeted for their decision to overturn the death sentences of Reginald and Jonathan Carr, and in the Washington Supreme Court retention election, business interests attempted to portray Justice Charlie Wiggins as “enabling predators.” Both efforts to remove the justices failed. In Kansas, outside groups spent approximately $1.7 million on TV ads, but while a group calling itself Kansans for Justice attempted to oust the justices, another group called Kansans for Fair Courts spent almost equal amounts supporting retention. All five justices were reelected, but the four who were targeted by ads averaged about 56% support, as compared to 71% of the vote for the fifth justice, who was not the focus of TV ads. Alicia Bannon, Senior Counsel at the Brennan Center’s Democracy’s Program, said, “This unprecedented flood of spending from outside special interests and secretive donors is undermining faith in the fairness of our courts and the promise of equal justice for all.”

(K. Cairns, “The Case of Rose Bird: Gender, Politics, and the California Courts,” University of Nebraska Press, 2016; C. Thompson, “Outside Groups Set Spending Record in Judicial Races,” The Marshall Project, November 15, 2016; “Spending By Outside Groups in Judicial Races Hits Record High, Secret Money Dominates,” Brennan Center for Justice, November 15, 2016.) See Books.