Thelton’s Orders

On the eve of his retirement, the federal judge who reshaped the state’s prison system and the Oakland Police Department speaks on his role in the civil rights movement and the future of justice in the Trump era.


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CC Abbie Rowe, National Park Service/John Fitzgerald Kennedy Library, Boston

Henderson served as a liaison between the Rev. Martin Luther King Jr. and Robert Kennedy in the 1960s.

When he was jailed in Birmingham in April 1963, the Rev. Martin Luther King Jr. wrote, “Birmingham is probably the most thoroughly segregated city in the United States. Its ugly record of brutality is widely known. Negroes have experienced grossly unjust treatment in the courts. There have been more unsolved bombings of Negro homes and churches in Birmingham than in any other city in the nation.”

Henderson met King and other civil rights leaders in Birmingham as a result of segregation: The A.G. Gaston Motel was the only place in town they could stay. At first, King and his colleagues were skeptical of the young DOJ attorney. While they were happy to see a black man working in the Justice Department, they weren’t sure whether he was there to help or to infiltrate and undermine their efforts.

“We were standing outside [the motel] talking, and I said, ‘You know you really shouldn’t tell me anything that you don’t want Bobby Kennedy to know,’” Henderson recalled. “They said, ‘Ah, he’s straight with us.’ And after that we had no problem and got along well.”

Shortly after protests ended, the Ku Klux Klan descended on the city for a rally. On May 12, 1963, bombs went off at the home of King’s brother, the Rev. A. D. King, and at the A. G. Gaston Motel. Though the Klan was apparently targeting King, Henderson had been staying near the bomb blast site as well. Luckily, he had checked out earlier that day.

Henderson returned to Birmingham that September after the Klan bombed the 16th Street Baptist Church, killing four girls. He had been visiting friends in Washington, D.C., at the time of the church bombing, and when he returned home, he found a military jeep waiting for him outside his apartment. They rushed him to the FBI headquarters in Birmingham.

He was told to contact King immediately. By the time Henderson headed out, it was dark, and the FBI agents warned him that violence was breaking out along racial lines. As Henderson left the white area in downtown Birmingham, he was careful to keep his lights off for fear of someone recognizing he was black, hearing scattered gunshots as he drove across town.

But the relationship Henderson cultivated with the civil rights leaders eventually cost him his job. On Oct. 15, 1963, King was going to address an integration rally but was concerned about one of the tires on his car, so he asked Henderson if they could use his. Some of the rural areas King would be driving through could be particularly hostile to a black civil rights leader.

Fearing King could be killed if he got a flat tire, Henderson didn’t hesitate to lend him the car.

Agents for then Gov. Wallace were tailing King that night. They took his license number and noticed the car had been rented by a Justice Department attorney. Wallace seized on the opportunity, arguing that it showed the Kennedy Administration was secretly siding with the civil rights movement. Henderson was portrayed as a high-ranking government official and even a personal friend of the president.

“They were playing it for all it was worth and they argued that this is what [the Justice Department was] really doing down there—they’re not enforcing civil rights; they’re encouraging demonstrations,” Henderson said.

The DOJ quickly fired Henderson, but the hard lessons he learned in the Deep South would later serve him well in private practice and on the bench.

In a way, Henderson’s job as a U.S. District Court judge wasn’t so different from when he first started out in the Justice Department, looking for “patterns and practices” in voter rolls. In the early ’60s, he and other DOJ attorneys would notice that few black people were registered to vote and would investigate to find out why, uncovering practices like requiring would-be black voters to pass difficult written tests.

“We were honors graduates from law school … and we couldn’t answer a lot of those questions they were giving, so we knew that the white farmer who had a third-grade education wasn’t answering them and yet he was a registered voter,” Henderson recalled. “You had to look around and see what was really going on.”

Henderson kept an eye out for what’s going on under the surface throughout his career. After leaving the Justice Department, he worked as a defense attorney in Oakland. Then in 1966, he helped open a small legal aid office in the mostly black community of East Palo Alto.

He found the community there was skeptical of his staff of white law students from nearby Stanford University. In 1968, he found out that Stanford Law School was just graduating its first black student, a fact that raised questions in Henderson’s mind about why Stanford was so far behind Berkeley.

“I was young and rambunctious enough in those days to go over and ask for a meeting with the dean,” Henderson said. He was told that Stanford would accept any black student as long as his or her grades and test scores were high enough. But Henderson questioned whether the school’s legacy admissions—the sons and daughters of alumni—were held to that same criteria and asked to examine the admission records. Soon, he was working for the law school recruiting minority students.

“I learned that kind of analysis—the way things are done—from my experience with the Justice Department,” Henderson said. “See what they’re really doing, not what they say they’re doing.”

Henderson briefly went back into private practice in the late 1970s before applying for an opening in the U.S. District Court, Northern District of California. He was recommended for the bench by then Sen. Alan Cranston, D-Calif., and nominated in 1980 by President Jimmy Carter, who was looking to appoint more women and minorities to the judiciary.

As a judge, Henderson’s objectivity has been challenged at times because of his race. When he blocked enforcement of Proposition 209, a 1996 ballot measure that effectively outlawed affirmative action for governmental institutions in California, he relied on his typically detailed analysis of the facts but was still widely accused of bias.

He predicted that enrollment of black students at universities would be halved by eliminating affirmative action. In his ruling, Henderson found that Prop 209 conflicted with constitutional protections for women and minorities by prohibiting programs necessary to break down historic patterns of exclusion. But the 9th U.S. Circuit Court of Appeals overturned Henderson’s decision, finding that affirmative action programs were not constitutionally protected. Henderson’s decision drew calls for his impeachment and even death threats.

While there remains intense disagreement over the exact effects of Proposition 209, after affirmative action was eliminated in the University of California, there was an immediate decline in African-American enrollment. The admissions rate for black students at Berkeley plummeted from nearly 50 percent in 1997 to only about 20 percent in 1998. Black students remain underrepresented at Berkeley, comprising only 3.3 percent of undergraduate students in 2016.

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