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For a career spent defending the underdog, Henderson receives Bernard Witkin Medal

By Diane Curtis

If one is judged by the company he does and doesn’t keep, U.S. District Judge Thelton Henderson believes he has a right to be proud.

Judge Thelton Henderson
Judge Henderson

“I consider it a badge of honor to have the enemies I have,” said Henderson, who didn’t name names in a recent interview but who was well known as one of House Majority Leader Tom DeLay’s impeachment targets in the late 1990s. The Texas Republican was incensed that Henderson, whom DeLay has derided as an “activist judge,” declared Proposition 209, the anti-affirmative action initiative approved by California voters in 1996, unconstitutional.

On the other side, Henderson’s more friendly acquaintances have included the late Bernard E. Witkin, for whom the State Bar of California’s top honor recognizing “those legal giants among us who have altered the landscape of California jurisprudence” is named. As the 2004 recipient of the Bernard E. Witkin Medal, Henderson said the prize is all the sweeter because he so admired the man for whom it is named.

“He’s a hero and an idol of mine,” said Henderson. “I admired his brilliance. The idea of getting this award is outstanding . . . I’m overwhelmed and certainly thrilled.”

The medal is conferred on those who, “through a career of extraordinary service, have made significant contributions to the quality of justice and legal scholarship in our state.”

Henderson, 70, has been in the thick of important legal issues during his 42 years in law, 24 of those on the federal bench, where he achieved one of his many “firsts” — first African American chief judge for the Northern District of California from 1990 to 1997. “He’s the prototype of the courageous judge,” said Stephen R. Barnett, Elizabeth Josselyn Boalt Professor of Law, emeritus. “If enforcing constitutional rights is activism, then he’s an activist.”

Henderson said he has no regrets about his decision on Proposition 209. “I truly believe that opinion stated the law as enunciated by the Supreme Court. . . I thought the Supreme Court would reverse itself but not me.” As a result of the decision, Henderson received hate mail and death threats. “It was a personally scarring experience for me. I couldn’t have imagined that one could have been so vilified,” he said.

If anything characterized his most important decisions, Henderson said, it was that they protected the underdog. “It was about the little guy,” he said of the opinions for which he received the most praise from his colleagues. He also tried to set a welcoming tone in court that included rare use of the gavel and no outbursts. “I like (people in my courtroom) to know I’m listening to them, whether their case involves an insult they received at work or $15 million they lost in the stock market and they think they were defrauded. . . I certainly try to act in a way that, even if they lose, they feel they’ve been listened to on the merits.”

Henderson grew up in Los Angeles’ Watts neighborhood with a janitor father and a domestic worker mother whom he credits with giving him the resources to work to meet his potential. “She insisted that I study hard, get a good education and make something of myself,” he has said. After graduation from the University of California at Berkeley in 1956, he spent two years in the Army and then returned to Berkeley to attend Boalt Hall School of Law, where he was one of two blacks. While there was no overt racism, he said, it was “cold and lonely.”

After law school, Henderson headed to Washington, D.C., to become the first black lawyer in the Civil Rights Division of the Department of Justice. There, he was mentored by “a great man,” John Doar, who went on to national renown as counsel in the Watergate hearings. During his time in the South working on civil rights cases, he met Martin Luther King Jr., who played a role in Henderson’s return to California. Henderson loaned King his car to get to an event, a gesture that outraged Alabama Gov. George Wallace and others who said it illustrated the federal government’s support of the civil rights movement.

Henderson lost his job and returned to the West Coast. He practiced law, and, from 1969 to 1976, served as assistant dean at Stanford University School of Law.

The civil rights movement is “a part of me,” said the veteran jurist, adding that he is not happy about the current trend making it more difficult to enforce civil rights laws. “The Supreme Court just raised the standard in terms of the way you can prove discrimination.”

He also said he doubted if he would be confirmed if he were nominated for a federal judgeship today rather than in 1980 when President Carter made the appointment. “One noted attorney didn’t get an appointment here a few years ago because early in his career he had done some work to abolish the death penalty. . . The conservatives aren’t letting people with civil rights, public interest backgrounds, through. I would not get approved.”

Like many, Henderson is disheartened that the promise of what he considers the most important civil rights decision to date — Brown v. Board of Education — has not been realized. “We must concede that our public schools are more segregated than ever. . . In recent years, Supreme Court decisions have dramatically changed the landscape for citizens and lawyers seeking to enforce civil rights or environmental laws,” he said in a 2003 speech on public interest law. But despite disheartening results, the importance of the decision should not be underestimated, he said.

“Even if very little in day-to-day life changes and there is just the expectation of some material betterment, the knowledge that one’s experience finds vindication in the eyes of the law is a good bit of what empowerment means.” He predicted that the courts “will ultimately sort out the parameters of our civil rights and liberties.”

Henderson admits he has sparked controversy for his opinions, but he says the conservatives throw out the “activist judge” charge when they don’t agree with a decision. “Who is an activist depends on whose ox is being gored,” he said. In his public interest speech, he elaborated: There is a growing trend, he said, “to label decisions upholding or expanding civil rights as the product of judicial activism, with the pejorative implication that such decisions represent an attempt by judges to improperly disregard legal precedent or to thwart the will of the legislature or the will of the people. Conversely, decisions that are consistent with a more politically conservative outlook are typically portrayed as products of judicial restraint.”

Henderson has most recently been in the news for objecting to Gov. Arnold Schwarzenegger’s  renegotiation of contracts that he says give the prison guards too much power. A decade ago, he ruled in favor of some of the state’s toughest prisoners, those at Pelican Bay, who charged that they were denied medical care and suffered a pattern of brutality by guards. Other notable decisions include upholding adequate clean air standards for the San Francisco Bay Area; ruling against contractors who said minority set-aside programs did not serve a compelling interest of remedying effects of discrimination; making it easier for Agent Orange victims to receive disability benefits; and ruling that the Department of Defense violated equal protection rights of lesbians and gay men, who were subjected to greater scrutiny for secret clearances.

“I think he’s tackled some very difficult issues in his career,” said San Francisco attorney Raymond Marshall, who chaired the five-member panel that selected Henderson for what Marshall called his “lifetime achievement.”

“He’s a principled man, a man of conviction who decides cases on merits, not on popular whim or what is politically correct at any point in time. He’s a great role model for the profession in terms of doing the right thing,” said Marsall.

Anthony Capozzi, former president of the State Bar, said Henderson’s courtesy, kindness and collegiality “belie the magnitude of his contributions to the people and the legal profession. . . (His) lifelong commitment and outstanding contributions toward the advancement of equality and justice, his dedication to his profession, his work for the protection of the public, diversity and equality in the profession, and the preservation and improvement of our social and justice systems, is greatly admired and respected” by everyone from opposing counsel to other judges and staff.

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