Berkeley Talks transcript: Thelton Henderson on the bravery to do what’s right

Savala Trepczynski: This is Be the Change, a summer podcast series from the Thelton Henderson Center for Social Justice at UC Berkeley School of Law. I’m Savala Trepczynski and I direct the Henderson Center, the social justice center at the law school. I wanted to find a way for us to stay in community over the summer and to have fun conversations with people who in their life and then their work are the change that we need to see in the world.

My guest today is Judge Thelton E. Henderson. He sits on the Northern District of California and he’s going to be retiring after 37 years on the bench. His last day in the courtroom will be this August. He’s a Berkeley Law graduate. He’s the namesake of the social justice center at Berkeley Law. And he is a true icon. He’s made decisions on the bench that literally no one else has ever made, such as deciding that gay and lesbian Americans have equal protection of the law under the Fourteenth Amendment.

He has made decisions that impact everything from sexual harassment, victims rights, to environmental rights, to the California prison system. He is humane. He’s funny. He’s brilliant. And he brings all of these qualities to his position of power in service of the very, very best ideals of our constitution. I can’t think of anyone more worthy of praise for a young lawyer than Judge Henderson. He’s here with me today to talk about his adventures in social justice on and off the bench. Judge Henderson, welcome to Be the Change.

Thelton Henderson: Thank you. My pleasure to be here.

Savala Trepczynski: It’s so exciting. I pinch myself in this job every day and this is one of those moments where I can’t believe my luck.

Thelton Henderson: Thank you. I’ve been looking forward to this discussion with you.

Savala Trepczynski: I want to start our conversation the same place that I’m starting all of these conversations for Be the Change, which is by asking you to describe one of the first times, maybe as a child, that you experienced social justice. Meaning that you saw or you felt or understood that there were patterns of inequality in the world or that there were people who were fighting to change them.

Thelton Henderson: Well, that’s interesting. That’s a fairly complicated question for one who grew up in South Central LA, an all-black community because in my view by definition, you’re living, that’s the creation of a discriminatory society or government, or whatever you have. So, you’re experiencing it every day, but it’s the norm. And I want to make that distinction. So, I grew up there and you don’t think about the fact that you’re living in the projects and somehow that’s not fair.

It’s not like other people who don’t live there. But apart from that, the first time I could remember a dramatic discrimination or unjust situation was when I was just starting junior high school. I must’ve been 11 or 12, I’m guessing. And my mother insisted that I go across town to a primarily white school. And so it was the first time I was really doing things outside of South Central LA.

And they had an organization in LA that was called the DAPs — D-A-P-S — and that stood for Deputy Auxiliary Police corps and the police were going around to the schools, not in my neighborhood, but in this neighborhood that I was going across town to school, and encouraging kids to join the DAPs and be good citizens and go to meetings and have policemen visit them, and you get a little badge. And some of my friends who were white went down to the police station, as the principal told us to do, to sign up for the DAPs. And we went down and the guy at the desk, when we told him what he wanted, he sort of looked at me and said, “Well, let’s see, you need to go to your neighborhood to the police station in your neighborhood to join the DAPs.”

And there were no DAPs in my neighborhood. And as it went along, the other kids actually step forward and say, “Why can’t he be with us? We go to the same school,” I realized that there was something more than just what neighborhoods you lived in. And that this policeman didn’t want me joining the DAPs, that they didn’t have any black kids in that division. I remember that deeply. And all three of us, the kids, all four of us, me and three others talked about it. And I really felt the injustice of it and the unfairness of it. That’s my first memory of something sort of institutional like that.

Savala Trepczynski: Did you talk to your mom about it or the principal, teachers?

Thelton Henderson: I didn’t, I didn’t. I just sort of didn’t know what to do. I sulked for a bit. The kids, my friends did, they were more used to this. I just had no experience with that. They mentioned it to the teachers. They mentioned it to the others. And there was some talk about doing something, but nothing ever came of it. I just didn’t join the DAPs.

Savala Trepczynski: In 1962, just after finishing law school, you were in the Deep South as the first black attorney in the DOJ Civil Rights Division, which deserves a round of applause in and of itself, of course. And while you were there, you were investigating local law enforcement and abuses of people’s rights alongside Dr. King and other activists and people who would come to be understood as luminaries for the Civil Rights Movement. Are there certain sense memories of that time that you carry with you? Sounds, tastes, smells, things that you saw, textures of that moment, that to me must have been incredibly rich that have never left you.

Thelton Henderson: I think so, yeah. There were memories that will stay with me forever and I think also have influenced my own subsequent behavior in life. One of the things I remember most was just the sheer bravery of the people who were demonstrating down South in Birmingham and Jackson and Selma. And I was really impressed with that. I’d see kids come to Birmingham and they would have their toothbrush and toothpaste wrapped in a face towel and put it in their little jacket ready to go to jail, expecting to go to jail. And that was brave because Bull Connor had police dogs and fire hoses and cattle prods, and they were treated pretty poorly.

And I was very impressed with the bravery that I saw at every stop when I was covering these demonstrations for the Civil Rights Division. And I actually developed a sense of guilt, because although I was black and I got arrested a number of times when the local police didn’t know I was a member of the justice department, I had an ID that was pretty impressive looking, and I could pull that out and they would let me go.

And I started talking to Dr. King and he would tell me only half jokingly, “You know, Thelton, the best thing you could do for the movement was to get arrested and show that any black is subject to this discrimination and this behavior.” And even then he would sort of chuckled and said, “It’d be even better if they hit you all up alongside your head.” And he used that phrase while he did it. I knew he would really like to see me do that and make a part of his movement and make the statement that would be heard about the treatment of blacks.

And I got arrested several times, but never got brutalized. Because a couple of times I actually ended up pulling out my ID. But that is the searing memory I have of just the sheer bravery of these people in Selma. I saw on a big voting rights day there, I was monitoring that along with another attorney from the department and they had slowed down the voting and it was a searing hot day. And I saw some young kids and the sheriff told the people in line that, “If you got out of line, you lost your place.”

And it would slow down the registration process. So, people were standing literally hours here without drink and some had to go to the bathroom and I saw some kids get some crates that would hold soda water bottles. And they put cups of cold water and Kool-Aid and things like that in there to take them across to the voters and the sheriff had said you couldn’t approach the voters — because we had gotten an injunction against interfering with the voters, and the sheriff had interpreted that no one could come up and talk to them.

And I saw these kids get instructions from the head of SNCC about how to protect themselves, because they knew they were going to get beat up. There were some deputies that people, that rednecks had been deputized and they were standing across the street. And I saw these kids walk across there with these crates. And we actually, I got the FBI to film this and it was one of my first insights into the way the FBI was treating civil rights in those days. And when I looked at the film afterward, we saw the kids walk across the street. We saw them approach these deputized people. We saw them step forward and I actually saw it, but I’m now looking at the film.

I saw them raise their hands and then the camera went off and lost them and started looking up on the building, at windows in the building and it just wasn’t filmed. And that was intentional. But anyway, the point I’m making is just that bravery to do that, it stays with me and in many times when I’ve had a situation involving justice, I think of that bravery, it stiffens my spine a little, even to this day.

Savala Trepczynski: I have to ask, did the people who were waiting in line get the water? Were the children able to actually deliver the water?

Thelton Henderson: No, they didn’t. No, the water was spilled. The crates, they were knocked out of their hands, they fell to the ground and they didn’t get their water.

Savala Trepczynski: What were your impressions of Dr. King as a person?

Thelton Henderson: An amazing man. Again, inspirational man. And one story I like to tell — we all know him, that voice and the way he can inspire you and his articulateness. But I saw another side of him that told me how hard his task really was. We were in Birmingham. And you may or may not know that in Birmingham was the only place a black could stay, a public place. It was the A.G. Gaston Motel and we both stayed there. And very often on a slow day, we might hang out together. We’d talk out in the courtyard or have a coffee in the restaurant or I’d go to his room.

And on this particular day, got a big press conference coming up, the New York Times, the press from all over the country was there. He had a big announcement and we were in his room and he was in his undershirt and he was dead tired. He was perspiring. He had had a late night and a tough day the day before. And I could tell he was just dragging. And finally Andy Young came into the room and said, okay, “Mike,” he called him Mike. “Okay Mike, it’s time to go.” And we were on the second floor and he was going to speak from that balcony. And he sort of pulled himself up and he went into the bathroom, which was right next to the bed we were sitting on and splashed some cold water on his face and wiped it off and freshened up, put on a shirt and then went out there, and then he became Martin Luther King.

That one you always see, but I’ve seen the other one right there and I still remember that. I mean, a brave man and he got out there with that voice, that resonance in his voice and gave the press conference and the speech. And another thing about him, as a number of times, when you look at the newsreels about him, there’s one where he made this great speech and he said, “I may not get there with you.” He said that a number of times in public, not those words, but just again, I’m convinced that he knew he wasn’t going to live a long time. And I know he cared, but he was willing to do what he was doing and take the consequences to free his people. And it’s just an incredibly brave man with the leadership that I wish we had today that I think is missing.

Savala Trepczynski: What you say about Dr. King is remarkable to me because it is indeed true that he was a singular human being. He was irreplaceable and yet he was a human being, as you described. He was someone who was tired and splashed water on his face and wore an undershirt on a hot day, which in a way it means none of us are allowed to simply opt out because we don’t think that we’re exceptional enough to complete the task ahead of us.

You’ve been on the bench for almost 40 years. What have you concluded about human nature from all of the people that have come through your courtroom?

Thelton Henderson: Well, it’s interesting. I’ve had two views of human nature — just the human condition, the way people behave under pressure or otherwise. I have criminal cases and I have civil cases. In the civil cases, I see entirely different kinds of people and the message I get from that, people can be incredibly greedy and selfish and egotistical and unfair to each other and combative. Although there are memorable people who are charitable and good human beings that are engaged in civil litigation.

The greater impression I get is from my criminal cases where I see a huge capacity for redemption from people. Most of the criminal defendants are from lower economic groups, underprivileged groups, racial groups, and they show a remarkable capacity for redemption if given a chance. That’s why I’ve been quoted many times as saying, “We need more rehabilitation rather than punishment.” And I’ve participated in a number of diversion programs where people have been arrested for a felony, but given a chance to mend their ways in what’s usually an 18-month program, so that if they don’t have an education, they dropped out and they were scuffling and they started selling drugs or whatever, they’re made to get out of this program, to get an education, whether it’s a GED or continue to graduate from high school or even community college. If they need a job, if that’s their problem, we had connections that would get them a job to work and it works wonders.

And I’ve seen some of these people who’ve completed these 18-month programs, at which point when they graduate successfully, the felony is eliminated from their record and they go on to make something of themselves. And it’s just been really remarkable how people have really had a disadvantaged life, can right themselves and go on to have a fulfilling life. And it’s been very inspiring for me. And that’s why I’ve been such a supporter of these kinds of programs.

Savala Trepczynski: I think when I interviewed for the position as executive director, you and I talked a little bit about my dad who was incarcerated for many years. As I’m saying this, I’m wondering why on Earth I brought that up in a job interview. But probably I would only do that with you, Judge Henderson. He was incarcerated for many years and what I feel most when I think about that hole in his life is the absolute crushing of human potential. It’s just squandered.

And I wonder, if you have had to kind of buttress yourself against feeling weighed down by that, as you have seen so many people sort of be caught up in the jaws of the criminal justice system over the last four decades.

Thelton Henderson: I have and indeed it really got to me. I came to resent my criminal case load at a point where they changed the law bid and they had what they call sentencing guidelines, which made judges give mandatory minimum sentences for certain kinds of crimes and it really sickened me. I found myself sending young kids to prison or young people to prison for a minimum of 10 years for some drug offenses. And so, I actually got out of the sentencing when I became 65 and became a senior judge.

At that point, a federal judge can never decide what cases you want. You get the ones that are assigned. But when you become a senior judge, you can decide what cases you don’t want. And so, I got out of the criminal calendar because I got tired of what I thought were much too severe punishments for people who needed that chance, that chance of redemption. The straw that broke the camel’s back for me were two cases.

Two young kids lived up north in what’s marijuana country up around Eureka. And they were going away to college, they had no record. They decided to grow some marijuana on their parents’ property. And it was adjacent to a federal forest land was just adjacent and they were growing it in there and the ranger stumbled upon it and they were charged. And this was their first offense, but because of the quantity of the drugs, I had to give them a mandatory 10-year sentencing, and I just thought, “That’s unjust.”

And I got out of the criminal calendar for a number of years and then the Supreme Court started interpreting these guidelines and giving judges much more leeway, again, like it was. And so I’m now back in, I got in about five or six years ago and I’m back in now because they’re fairer, in my view, although not as fair as I would like them to be. But yeah, it’s crushing to see people that I know are smart and have had a bad break and have had bad judgment, let’s admit that, too, and they’ve done some damnable things even. But I’ve seen so many of them, if given the chance, right their ship and go on to have a productive life.

Savala Trepczynski: Is there a part of the constitution that captures your imagination, that just ignites you, that you just want to read and highlight every other day, the way I do about the constitution sometimes.

Thelton Henderson: There are many parts of it, but I’m here talking as a judge. And so, I’m going to do that part, talk about that part of the constitution that excites me as a judge. And it sounds a little selfish, but Article III is a wonderful part of the constitution because it says that federal judges will serve for life during good behavior and it’s called lifetime tenure. And it excites me because it means that on those tough cases that I’ve had over the years, I can rule according to my conscience and following the law without worrying that I’m going to be thrown out of office, because somebody doesn’t like my ruling.

I think it’s given me the spine to do what I think is right. And I don’t mind being reversed if a court says “You got it wrong, Thelton.” That’s fine. That’s the way our system works. We have a correction for trial judges like myself at the 9th Circuit. And if you don’t like their decision, the Supreme Court will give it another look. And that’s a wonderful system because I do miss point sometimes and get it wrong.

But the fact that I can do it the way I think it ought to be done without fear of being impeached — and I’ve been threatened with impeachment a number of times — but I don’t worry about it because they can’t really do it for doing my job. That’s the part of the constitution that I think is a very important one to have our system of justice.

Savala Trepczynski: Yeah, that’s legit. I can totally get behind your faith in Article III. Though you have had to deal with threats around some of your decisions to your personal safety, which happens to many judges. How do you metabolize that?

Thelton Henderson: What you do, I mean, I sometimes jokingly say depending upon who it is making the threats, and very often they let themselves be known. The message I get from it is, “Well, I must be doing something right. If they don’t like me, I’m probably doing my job right.” That’s sometimes the message I get from it. Other times it’s a sheer ignorance. And it doesn’t even have to be a big case. I’ll sometimes get a letter from people who just don’t even understand what I’ve done. Either they don’t understand the law or the paper got it wrong, but…

Savala Trepczynski: You don’t respond, do you?

Thelton Henderson: I don’t respond. No, I’ve never responded. What I’ve done with some of the threatening letters, the marshal has a service, and in certain cases, when you’re going to get a lot of letters, they ask my secretary who opens the mail to wear gloves so you don’t put fingerprints on it, and they look at them to see if they’re a legitimate threat. And there have been a couple of times when the nature of the threats were such that they’ve posted marshals outside my home for a period of time in the evening to make sure nothing happens or a bomb’s not thrown through the window or whatever they fear might happen.

Savala Trepczynski: Oprah Winfrey said something that reminds me of this conversation. She said, I’m paraphrasing a little bit, but she said, “If you’re not ready for people to talk about you, then you’re not ready for success.” Now, a threat is more than talking bad about you, but I’m struck that you have some of that chutzpah, right? You’ve got a little bit of that willingness, maybe a lot of bit of that willingness, to step outside the line and have people disagree, whether it’s a higher court or the citizens.

Do you think you were like that as a child or is this something that you’ve developed like a muscle over the years?

Thelton Henderson: I think it’s developed. And again, it goes back to one of the earlier questions. I think that part of that development was seeing the bravery down South and seeing what a racial injustice really was all about. And that even takes us back to the first question when I talked about growing up in South Central LA. I didn’t really know discrimination and racism there.

People might treat you impolitely and tell you that you couldn’t rent a house or you couldn’t rent a room here and couldn’t eat there and do things. But it was a giant step beyond when I went down South and saw real segregation and white supremacy, Jim Crow laws at work. And it was a real eye-opener for me. I think it’s carried over into my commitment to do something about that and to express those views in my writings.

Savala Trepczynski: Was there a part of you when you were in the South that just could not wait to get back to LA?

Thelton Henderson: Not, really. No, I was caught up in the fight there and I think it’s interesting. I don’t know how long I would have stayed there on that job had I not been asked to leave.

Savala Trepczynski: I wasn’t going to ask you about that.

Thelton Henderson: Oh, that’s okay. That’s a part of my history for lending the car to Dr. King, that ended my career in the Civil Rights Division. I would have stayed because it was a wonderful fight and it was wonderful to find myself hanging out with people like Dr. King and Andrew Young and John Lewis. No, it was a highlight of my life at that time.

Savala Trepczynski: Were there women that you remember from that time as being incredibly strong or brave? One of the criticisms of the way we talk about the Civil Rights Movement is that it’s very focused on the work and the accomplishments of men, of which there were many, many, many. But that women, their role, is sort of erased in our sort of national memory about that time.

Thelton Henderson: The one that comes to mind foremost is Fannie Lou Hamer — fantastic woman, great leader, every bit as great and in a different way as Martin Luther King in the sense that she had oratorical skills. She could lead you. She could get you to get up and go march for that cause, was incredibly brave. She was beat up and rose to go out again, incredible. I’m having a senior moment. Diane Nash was a wonderful leader. And again, brave. She started as a student and got involved in it. Was wonderfully brave.

There are others. They’re quietly behind the scenes brave. And one of the things that is missed in terms of bravery, just anybody who supported Dr. King or SNCC or any group that came down South to work on voting or civil rights, anyone, a local person who supported it, was brave because they were taking names and taking photos. And when Dr. King or the group would leave on the Mississippi Summer, for example, when they cleared it out for the summer, those people faced retribution. They lost their jobs.

They were still there and the locals would get retribution for and punish them badly for that. So, untold bravery just in stepping up and doing those things. And it really, again, when I think about it, I sometimes want to cry at the cruelty that they got for their acts and the bravery that they showed.

Savala Trepczynski: There’s a funny thing about protests and movements and activism, which is that you don’t necessarily know when it’s happening, whether it’s a watershed moment, right? History tells us whether something was the inflection point. I think about the march in Selma — that was a group of people walking across a bridge. It was much, much more than that looking back.

It was one of the times that pricked the moral consciousness of the country. But at the time, there was no way for the people who were taking steps across the bridge to understand that 50 years later we would look back and think of that as one of the moments. Did you have a sense, or do you think that people around you had a sense, that they were in a real moment, a real inflection point? Or was it more just, “We have no choice but to do this fight and whether our contribution is small or huge, it’s up to history to say?”

Thelton Henderson: I think that the people, this is a guess, but I think that the people saw it and they were inspired. Dr. King is down here or whoever it was that was down there, they were inspired by that. “He’s going to be our leader and he’s going to get us out of this, so I’m now emboldened. I’m going to do what he says and I’m going to march with him.” I think it was just pure faith that this was a good thing to do, and that it was going to get them their freedom or their voting rights or whatever it was.

But I think the real genius of Dr. King was he knew after the Albany demonstrations, which were really not successful because the sheriff didn’t do anything to them. King saw right there that that doesn’t work, just blacks protesting. He had the genius to know and he was sort of hinting at it to me, that if the sheriff abused people, it would get on the front page of the New York Times.

Savala Trepczynski: Right. He recommended that you take a wallop up upside the head.

Thelton Henderson: And he knew that this was going to happen to these kids or to anybody who demonstrated, and that was going to make the success of the movement. So, I think the people they knew that might happen, but King knew it was necessary, but nonviolence, because just getting out there and fighting and throwing rocks and exchanging gunfire wasn’t going to do it.

But nonviolence, where you’re victimized and you demonstrate it, and it’s on the paper every other day as you do this, was what got the national conscience, got people throughout the country, coming. Got whites streaming to Birmingham and other cities to help the cause that made it successful. And King’s genius knew that was what would happen and what was needed.

Savala Trepczynski: We’ve got new leadership in Washington. Do you feel ready to leave the bench following the election?

Thelton Henderson: I feel ready. I’m reluctantly leaving. And I made the decision to leave the bench before the election. I had assumed, like most of the crowd I run with, that Hillary would be the president, but I feel ready to leave. And I feel that certainly on our court, on the bench, we have I think the numbers are 11 of the judges on our court in San Francisco, are a young, bright, dedicated Obama appointments. And they’ll bring energy probably to the cases they get that I might’ve gotten. So, it’s in good hands.

Savala Trepczynski: And we’ll have some Berkeley Law lawyers before them making eloquent arguments.

Thelton Henderson: Exactly.

Savala Trepczynski: Passionate. This, that and the other.

Thelton Henderson: Exactly. But I do intend to stay involved because I think there is much, much to fight about these days and I plan to do that. I’m thinking of doing some work in immigration or asylum work or other things. My former law partners have already approached me about participating in an Amicus brief before the Supreme Court on an important immigration matter. So, I will be involved in that way.

Savala Trepczynski: Yeah. It doesn’t sound much like retirement what you’re describing here.

Thelton Henderson: Yeah, no, no. It’s retirement because my wife and I, we love to travel and take car trips. We call them family trips with Maria and Missy, our dog and me. And we plan to do that. We’re already planning some of those trips, but not otherwise to become a couch potato and do nothing.

Savala Trepczynski: I don’t think you are constitutionally capable of being a couch potato, Judge Henderson.

Thelton Henderson: I hope that’s right. I hope you’re right.

Savala Trepczynski: Well, this has been so much fun. I feel so blessed to be talking with you. Thank you so much, Judge Henderson.

Thelton Henderson: Thank you, Savala. I’ve enjoyed it very much.

Savala Trepczynski: That was the Honorable Thelton E. Henderson. This is Be the Change. I’m Savala Trepczynski. Stay tuned for more conversations with social justice, thinkers and doers. Thanks for joining us.