Conversation with Thelton Henderson

Thelton Henderson Interview: Conversations with History; Institute of International Studies, UC Berkeley

Photo by S. Beth Atkin

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Civil Rights Lawyers

The role of the Civil Rights Movement was very clear in this period. Once, through the efforts of President Johnson, you got a Voter's Rights Bill, you got the Civil Rights Act, the role of the civil rights lawyer had to change. And you were really a part of that. What work did you undertake in the civil rights field once you left the Justice Department and came back to California?

Well, we got some legislation, Title 7 and other things like that, so I undertook the role of enforcing the anti-discrimination laws like Title 7 which says you cannot discriminate in employment. And I was essentially a Title 7 lawyer; I filed a lot of law suits against a lot of companies that discriminated. And interestingly enough, following it on to the present day where I sit on these kinds of cases as a judge. It was a good time to be a lawyer because the discrimination was much more blatant. And it was fairly easy to find people who had been discriminated against. It's not as easy now. You've seen a progression. It's much harder to be a civil rights lawyer now because the discrimination that still exists in our country is much more subtle. There are very few people in any area ... back then I could go look for a place to live and they would say "We don't rent to blacks." They don't say that anymore. They say, "Gee, we just rented it to someone else." And so it's harder. And the same in employment. They rarely say "we don't hire blacks," as they did then.

How does your role in the Civil Rights Movement in this earlier period affect your work and your thinking as a judge today?

I think it affects it, and that's why I think it's good to have diversity on the bench. A story I often tell is that I have some colleagues on the court whom I admire greatly and are good friends of mine. We come from different backgrounds. The difference between me and another colleague who comes from a more privileged background and a more sheltered background, growing up in the suburbs and maybe never even having gone to school with a black, is that one of them will get a case, and I'll give you an example of an actual conversation. This judge came into the judges' lunchroom and said, "Gee, I'm in this trial and this black worker at this factory says that he goes to the locker room where he has his locker and they have a sign on there that says 'N----- Go Home!' and they hung a gorilla on his picture. And gee, I just don't believe that." And the difference is that I believe that. And that's what diversity brings to the bench. That's what my experiences bring. I hear things and I can say, "Yes, I've even experienced it. I believe that happens." And then of course you have different outcomes because these cases are fact-intensive, where you have to get two testimonies. Judges are able to determine what the facts are of a case. And I'm not saying I discriminate, I'm saying I bring an experience where I recognize certain things that my colleagues, well meaning, don't recognize.

We look back at the example of Martin Luther King and Andrew Young and others -- one of the most amazing things is their respect for the law as they violated unconstitutional and evil laws. How does that affect you today, that example, in the sense that in your work it's really necessary to make a distinction of being obedient to the law but understanding that through political action sometimes laws need to be changed?

I think the key to what they did (and there's a difference now), they respected the law but they understood that something had to be done, and in order to get the law to change they had to violate what was an evil law. And I've talked to them about that, and the key for them was not that they were law-breakers, but that they were willing to pay the penalty for it. So they recognized that they were breaking the law, and King went to jail. And Andy Young went to jail. And most of the civil rights leaders went to jail. I would love to have a statistic, I guess we'll never have it, of the amount of bail money that the Civil Rights Movement put up to make the points they were making in the '60s. So they were willing to pay the price, and it was a large price, to get the attention of the country and our lawmakers so they would change these laws that they thought were not good laws.

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