Conversation with Thelton Henderson

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

Photo by S. Beth Atkin

Page 6 of 8

Being a Judge

Bringing the civil rights back around to your work now, what temperament does it take to be a judge?

One of the terms they ask you though confirmation, they're always talking about it, is the "judicial temperament." I now understand that. I've always been deemed to be a fairly mellow kind of person, easy going. But judging is very difficult, it's very frustrating. It's stressful. A lot of judges that I know stress out and they don't have a judicial temperament. They get very short tempered. They get frustrated. And very often attorneys see their job as frustrating the judge. So it takes a temperament where you can sit back and understand that two sides are advocating. One side is pushing the law as far as they ethically can this way, and the other that way. And you're sort of in the middle trying to take this in and come out with a just ruling. It's stressful, it isn't easy. I think it takes someone who is patient, ideally; I don't think I've always been as patient as I should -- none of us have been. But patient, willing to learn, willing to listen, and willing to work hard, because very often you have to take things under submission and then go back with your law clerks and actually figure out a complicated area of law.

So it's a combination of things. It's your own personal experience. It's how that experience helps you understand the facts of the case, the two arguments before you, weighing the two arguments, but also I guess in the context of precedent.

It has to be in the context of precedent. And that's why I gave the example. The attorneys are pushing the precedent as far as they can in their direction. They're saying, "This case stands for this principle." And it doesn't quite, but they're pushing it over. The other side is saying, "No, that's not the case. This other case is the one you should follow, and it stands for this principle." And you have to decipher all that, read the cases yourself, see which case applies, and then apply the law. As a judge you're doing exactly what a jury does. I'm in a jury trial right now, and I will instruct the jury that they find out what the facts are, they will decide what witnesses they believe, and then I, the judge, will tell them what the law is. They put the law and the facts together to come up with a just ruling. But when you don't have a jury that's exactly what the judge does, you put the facts and the law, but you have to follow the law.

In a particular case there might be disappointment on the part of one community or communities because of the verdict. But I guess your long-term view, and we could relate this to the civil rights experience, is that there's hope that the system will work its way to justice over time.

That's right. There is that hope. And the other important thing about our system, and I tell this to each jury after we finish, because they're usually drained on a tough case and they've been through the same thing that judges go through, and I tell them that the key isn't whether you've made everybody happy, because you can't, and I tell them that the only thing that I, as a judge, make everyone happy on is when I do a wedding or when I do an immigration swearing-in. And everyone's happy. Everything else I do, at least half of the people are unhappy because I'm ruling for someone and I'm therefore ruling against someone. What makes our system works so well, though, is to have one's day in court; the fact that that person presented the case, the jury listened to it, they had a chance to put on their case. That's what sustains our system, having one's day in court, feeling you were heard. And even though you don't agree with the ruling, you feel you've been through a fair process.

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