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July 01, 2013 Waymaker

An Interview with Judge Thelton Henderson

By Judge Mary-Margaret Anderson

I had the honor and the pleasure of talking with Judge Thelton Henderson on two occasions in January 2013. As he approaches his 80th birthday, it is clear that he is in a reflective mood. He was anxious to emphasize the point that he makes to young people aspiring to a legal career: essentially, if he can do it, they can too. On that point, however, he is not entirely persuasive. Judge Henderson works very hard and has an uncommon strength of character, humility, and commitment to the public interest. At a time when public servants are not only underappreciated, but sometimes blamed outright for societal ills, he shines like the brightest of stars.

The fact that Judge Henderson’s life story would make a fascinating novel about the intersection of American jurisprudence with African-American history circa 1933 to the present has not escaped notice. A documentary entitled Soul of Justice: Thelton Henderson’s American Journey was released in 2005. And the fact that Boalt Hall, his alma mater, established the Thelton E. Henderson Center for Social Justice reflects his iconic standing in the Northern California legal community. He is the recipient of the 2013 Thurgood Marshall Award from the Section of ABA Individual Rights and Responsibilities and will be honored at a dinner at the ABA Annual Meeting in San Francisco in August 2013.

Yesterday, on Martin Luther King Day, Barack Obama was inaugurated for a second term as president. It occurred to me, Judge Henderson, that the event might have given you special cause to reflect.

It did. I had ample cause to reflect yesterday. Of course, I watched the inauguration ceremony, and it was a very special day for me, as it was a special day four years ago. But this one, coming on the Martin Luther King holiday, was even more so in a way. I found myself telling the friends I was watching the inauguration with that there were so many aspects of it I never thought I would see in my lifetime. I never thought I would see a black president of the United States, although I thought in my son’s lifetime and certainly my grandson’s lifetime it might happen. But with Dr. King so prominent in the event, I found myself yesterday wondering what he would have made of all of it. I thought it would have been beyond his wildest dreams, although, of course, I can’t speak for Dr. King. But I just imagined if back in the ’60s I had said to him, you know, what will be the state of racial progress in the 2000s? I don’t think he would have predicted what happened yesterday.

You grew up in Los Angeles; is that right?

Well, I was born in Shreveport, Louisiana, and when I was three years old, my family—my mother, my grandmother, and some other members of my matriarchal family—decided to come to California for a better way of life. My grandmother had nine children. And they all came to California sort of like the Joads in the Grapes of Wrath—in a truck and a couple of trailing cars—and settled in South Central L.A., known as Watts.

I imagine that lots of hopes and dreams attached to you as an only child.

They were primarily my mother’s hopes and dreams. I credit her with much of what I’ve done in life. She wasn’t an educated woman. She cleaned houses to support us. But as I grew up, it was clear that she had a dream for me of going to college, of making something of myself. She used to say, “I want you to be somebody.” And she meant a doctor or a lawyer, really. And so I grew up thinking that. When I went to Cal, I still thought, I’m going to be a doctor or a lawyer. And then I took a lab course at Cal and I knew I wasn’t going to be a doctor! And so I pursued law.

You had the good fortune to go to my alma mater, UC Berkeley.

Yes—I got there on a football scholarship.

What was Boalt like at that time, in the late ’50s?

Boalt was like all the stories of the old way of teaching, like the movie Paper Chase. The dean at that time was William Prosser. And the first day of school, orientation, we were sitting in the auditorium and he said, “Look to your left, look to your right, one of you won’t be here next year.” And, unfortunately, one of my very best friends was sitting on my right and, sure enough, he wasn’t there the next semester. It was rigorous. I did almost nothing but study. And while I did okay, it was a real challenge and I didn’t feel I had the mastery of law that some of my classmates seemed to have. It was pretty hard for me.

Well, I don’t think that’s an uncommon experience. It certainly was my experience! (Laughter.) I understand that the story of how you got your first job as a lawyer is a good one.

Yes. Luck. And I talk to young people a lot, hoping to share my experiences with them and help them, particularly those students who see a judge like you are or like I am and they sort of think we’re endowed with special powers and have something they don’t have. And I try to say, no, no, no, I struggled just as you’re struggling now and that’s part of the thing. Don’t let it worry you; it’s part of life.

Sometimes chance plays a big role in your life. In my last semester of law school, I honestly didn’t know what I was going to do. Kay Werdegar, who works across the street, was my classmate. [California Supreme Court Justice Kathryn Werdegar was appointed in 1994. The federal court building in San Francisco is across the street from the California state building.] She was number one in our class and we have lunch fairly frequently and talk about those old days often. She couldn’t get an interview because they didn’t interview women at the big firms and they didn’t interview African Americans either. The typical thing that someone like me did was to find a successful black lawyer who had a practice and work out an arrangement. Hopefully they had some space in their office and you would make an arrangement where you’d pay rent or you would do work for that lawyer while you built up your own practice. John Doar [Assistant Attorney General for Civil Rights], who was a Boalt graduate, was going around to government offices and saying, “Do you have any blacks working for you?” pushing that agenda for the government. My great fortune was that he called Dean Prosser and said, “Do you have any blacks graduating this year?” And there were two of us graduating and, for whatever reason, Dean Prosser recommended me and I got the job. And that changed the whole direction of my life.

Were you interested in civil rights before then?

I was abstractly interested in it because most of the discrimination that my family had experienced was in the South before we came to California. I knew there was segregation. I knew there were things that happened down South, but growing up in South Central L.A. in an all-black community, you didn’t meet it the same way. If you saw a “for rent” sign, you didn’t go unless you knew blacks lived there. And I didn’t go to restaurants that turned me away.

And there are other examples like that in my career. When I became a judge, if anyone asked me, “Are you interested in environmental law?” I would have said, “Mmm, I think so. I’m not quite sure what it is.” And, yet, some of my strongest rulings have been on environmental law. When confronted, I do what I think is right. And that’s what I’ve done on civil rights, but I don’t think I was a crusader in that sense.

So you were a witness to the movement.

I was a witness. I very often refer to myself, to my career, as being not unlike Forrest Gump. Kind of an ordinary guy who all these extraordinary things happened to just because I was there.

I remember, for example, when the church was bombed and the four little girls were killed in Birmingham [Alabama]. I was in Washington at that time on a hot summer day and I went to visit some friends in Maryland right outside D.C. and I walked up to their door, rang the doorbell. The screen door was open because it was hot and I could hear the radio and they were reporting the church being bombed. And my friends came to the door and I said, “I’m going to have to go.” And I got in my car, I drove back to my apartment, and, sure enough, there was a military jeep parked in front and they were there to take me to the airport. I grabbed some clothes, got into a military jet, and flew directly to Birmingham and got a briefing from the FBI. There was a general who was there conducting the military part of it because they thought that there might be wholesale rioting, that the black community would just rise up. So I flew there, spent a few days there, soothing people, investigating, talking to the black community, setting up meetings between Burke Marshall [Assistant U.S. Attorney for the Civil Rights Division] and the black community leaders and Dr. King.

Having grown up in California, as you described—it must have been extraordinary. What was that like when you actually saw firsthand what your relatives had described to you?

It was infuriating to see it. That’s why I said it was an abstraction for me at first.

I went into a doctor’s office, a white doctor’s office in Selma [Alabama], and on the tables, with the Saturday Evening Post magazine, was this literature that said, “Ask yourself this important question. What have I personally done to maintain segregation?” And I knew that this kind of thing was done, but I thought it was sort of underground. It was a shock to me. I felt naïve and that I didn’t really understand Jim Crow and segregation and all of these things. And I think that because I was so naïve I did some foolhardy things. I got into situations without knowing quite what I was doing and I’ve looked back on some of them and I’m probably lucky that nothing worse happened.

One example is after John Doar asked me to drive from Birmingham to Greenville, Mississippi. There was a case they were working on there and I had a young man with me, Jim, who was also black, and who was a summer intern from Yale. We got into Mississippi and John had asked me to call him that evening and as it got dark, I thought, better be calling John soon. We stopped at a gas station that was on the side of the road and I pulled in. The gas station itself was closed. I went back about 15 yards to where the attendant stayed and the cash register was and all. And there was a phone booth there. Back in those days they didn’t have cell phones. (Laughter.) I called John Doar and we were talking. And then I sort of felt strange and I turned around and I looked and there were two guys standing outside of a car. Jim, the intern, told me later on he was scared to death when these guys stopped. And then I realized something just wasn’t good. This was Klan country. This town was Forest, Mississippi. And so I told John, “This doesn’t look very good, John; there are two guys there.” And he said, “Well, you hang on; I’m going to get on another phone and call the FBI.” I talked a little longer with John, and then he said, “Well, you better go and then you call me again when you get back to Greenville.” And I went out to the car and by then there were a couple of other guys. And I looked across the street and there was a little store. And I saw some people gathering over there. So I was smart enough, I’d been on the job long enough to know that they’ll arrest you for any little pretense and sometimes they don’t even make a pretense. So I drove down the road for a mile or so, just to get out of their view. And then I turned around safely and by the time I passed that spot it was teaming with people and I know that they had put out the word that there are a couple of black guys here. We drove on by and, whew . . . I think we escaped something bad, if not a lynching.

How long did you do that work?

I did this for a year and a half . . . actually until I was fired some months later.

The only place blacks could stay in Birmingham in those days was the A.G. Gaston Motel, which was owned by a black insurance executive. That’s where Dr. King stayed; that’s where the newspaper reporters from the North stayed. I had been out working in the field. It was getting dark and I was pulling into the motel. I was pulling in just as Reverend Burnham Smith, who was driving Dr. King to Selma that night, was pulling out and we stopped to talk through the car windows. At some point Dr. King said, “Well, what are you doing tonight?” I said, “Nothing. I’m tired; I’ve been out in the field all day. I’m going to go in and eat and go to bed.” And he said, “Well, mind if we use your car? Reverend Smith’s worried about his rear tire.” He had a bad tire. And my instant thought was that I knew they were going to Selma; it’s about 70 to 90 miles north from Birmingham to Selma. I thought, Dr. King gets a flat tire going on that road and the wrong people come upon him, he’s a dead man. So I didn’t hesitate to say, “Sure, use my car.” Well, we now know that the FBI and George Wallace’s state police were following King and tapping his line and all. So they were following him and they traced the license. This was because of a practice they had to discourage blacks, local blacks, from helping people like King, helping the civil rights movement. They would trace the license plates of people who drove King around, and they would punish them. They’d lose their job if they had a decent job. But this time the license plate was traced to a government attorney and that became a big issue, which they used politically to suggest that this proves that President Kennedy is secretly supporting the civil rights movement.

And helping Dr. King specifically?

And helping . . . exactly. And so, in the course of it, I lost my job. I stayed there a few months trying to write about that experience, about the whole year and a half, but I ran out of money. I sold my guitar and got some money and drove back to California in my little Volkswagen Bug and started all over again.

Such an amazing story. What did that feel like to have to do that?

Oh, it felt awful. It was a low point in my life. I came back to California with my tail between my legs. I felt a failure. I’d been fired from my first job out of law school and didn’t fully understand why. The high politics at the time were beyond me.

I was still trying to write a bit about this and I bumped into a fellow who was a year ahead of me in law school, a black fellow. At that time there were four blacks in the law school, and Don Warden was one of them. He was a very dynamic guy; he had a radio program. Very active, very smart. And he had a thriving neighborhood practice. I would bump into Don and he’d say, “Hey, I’ll give you $50 if you go over to the Courthouse in Richmond and make an appearance for me.” So I would do that and pick up a little extra money. And finally, when I decided, “I’m a poor writer; it isn’t coming,” I ended up practicing with Don for a while. I joined the firm and he welcomed the help. And then another fellow from Hastings [University of California, Hastings College of the Law], who was also black, Bill Holliman, came on and we started a firm called Henderson, Holliman and Warden, although the real rainmaker was Don.

And we had a very thriving little law practice. Neighborhood people would come in on Wednesday—this was typical—and say, “Gee, I’ve got to be in court next Monday or next Tuesday,” and we’d say, “What are you charged with?” And you’re too young to remember this, no doubt, but in those days the Bar had a little book of fees. You’d thumb through the book and they would have the fee. You didn’t have to do it, but that was a guide and you’d say, okay, that’s going to be $250. And the person would go in their wallet and pull out old 1s and 10s and 20s and say, oh, see, all I have is $218. And you’d say, “I’ll take it.” And you went and represented them.

One day I bumped into Rod Duncan [Judge Roderic Duncan, Alameda County Superior Court, retired], who was practicing in Oakland [California] with Fitzsimmons and Petris. I told him I was not really doing what I wanted to do and he said, “You know, I’m trying to get them to hire a black. Are you interested?” I went down and interviewed and they offered me a job. So I essentially left my own firm, but I gave notice and didn’t take any interest in it.

I was kind of a wandering soul, looking back on it. I liked the work, but after a couple of years, I got a call from a New York Times reporter I had met who had covered the civil rights beat. I had gotten to know him quite well and dropped little tips, like, if you keep your eyes open, I think there’s going to be a meeting tonight. So we were buddies. It turns out he was a recruiter for the Peace Corps.

About what year was this?

I’m guessing about 1965. And he said, “Hey, Thelton, you ever thought about joining the Peace Corps?” And I hadn’t really thought about it, but I was drawn to public interest work. I know that now. He said, “We’ll pay for you to fly back for an interview.” I flew back to Washington, had an interview, and took a language aptitude test. They offered me a job to head the Peace Corps in the Cameroons. The Peace Corps was really happening then. A lot of talk about it, Sargent Shriver, and a lot of excitement. I came back, gave notice to Fitzsimmons and Petris, and I waited. And I waited and I waited. And finally I called the friend and said, “I’m running out of money.” Well, he checked and found out that they were concerned. They did a background check and found I’d been fired from the federal government. And that was holding it up. The system had taken over.

But I’d already given notice and I also realized I wanted to do something like the Peace Corps and that is when Rod [Judge Duncan], again, played a really important part in my life. He said, “You know, I bumped into a guy who is the head of the Legal Aid Society in San Mateo County and he’s looking for good lawyers. Why don’t you call him?” So I called Sy Rosenthal, who was the head of it, and he said, “Oh, yeah, we want a director in East Palo Alto. We’re opening up the first Legal Aid Office for East Palo Alto,” which at the time was a predominantly black community. I interviewed and got the job and I opened the Legal Aid Office in East Palo Alto on Willow and Newbridge.

I did that for two years and loved it. We’re now at 1968 and I had about a half-dozen Stanford students working for me. And one of them said one day, “Gee, isn’t that neat? Sallyanne Payton [now a professor at the University of Michigan Law School] is graduating and she’ll be the first black in the history of Stanford Law School.” And I thought, that’s preposterous. I know Boalt hadn’t graduated that many, but how could Stanford never have graduated a black? About that time Stanford was thinking the same thing. (Laughter.)

They ended up offering me a job to set up a minority program for them. And because I was interested in that happening, I took it on a half-time basis and then went half-time at Legal Aid. And I immediately learned a lifelong lesson—that there’s no such thing as two half-time jobs. You know, I was killing myself trying to do them both. So I went over to Stanford full time to start their minority program.

What was your position there?

Assistant Dean for Student Affairs. So in addition to recruiting minority students, I handled student organizations. And it was very interesting because they also had never had a black professor at Stanford and it ended up being a back door into teaching. My initial thought was to set up the program and then maybe go back into a law practice.

I had everything I needed and the program was hugely successful. But then I realized how institutions worked, that if I left right then, there was no guarantee. The commitment was to me and I worried that the program would dwindle back down because by then 22 percent of the entering class was minority—black, what we called Chicano then, and Native American. So I stayed on to institutionalize the program. I ended up staying eight years. And then I started thinking about what to do next.

I had the urge to go back and practice law. By then I had bumped into two friends, Joe Remcho, who was an ACLU lawyer, and Sandy Rosen, who was the head MALDEF [Mexican American Legal Defense and Education Fund] lawyer. So we started talking and we decided what we wanted to do was start what he called a “good guys” firm. We would do public interest work; we would do civil rights; we would do employment discrimination. So we opened up the firm of Rosen Remcho and Henderson in San Francisco.

How did your appointment to the bench come about?

A couple of years later, I was opening my mail at my desk, and there’s a form letter in there that started Dear Counselor—but somebody’s crossed out Counselor and written Thelton. And the letter said, “Your name has come to our attention as the kind of person Senator Alan Cranston is thinking of appointing to the Federal Judiciary. If you’re interested, here’s an application.” I had never thought about a federal judgeship. I never thought I was qualified or even knew how one became a federal judge.

Our firm practiced in federal court. And I was in awe of the judges and all of that and never thought I could do that. So with that counsel, I put in my application and through whatever miracle was working, I got the judgeship.

What surprised you most when you first took the bench?

I think what surprised me most was realizing how difficult it is to sit up there in between the two advocates and listen. I was totally taken aback by being the one in the middle, by having to be, as one of my judicial friends said, the “professional fair person.” I remember some of my first motions, hearing someone argue and thinking, “why are we even sitting here; of course you’re right.” And then hearing the other one and thinking, “oh, wait; you sound right.” Having to sort all that out was a new experience for me. It was an interesting experience.

The other interesting experience was that until then I had been involved with civil rights, voting, public interest kinds of things. And all of a sudden there are 17 categories in federal court. I had to learn admiralty law; I had to learn antitrust. I had to learn patent law, criminal law. I’m learning all this and, you know, learning how to work with my smart law clerks. You couldn’t do it without them. It’s unlike state court—at least the way state court was then, where you’d go into the Criminal Department, the Law and Motion Department, the Juvenile Court. Here you have all of these things and I had never done most of them.

I recall that you were made chief judge fairly early on in your tenure. Isn’t it based on seniority?

In about 1980, they decided to have term limits. So now the federal chief judges’ term is seven years. So the opportunity for me to have that position came along fairly early on. And it was another chance or Forrest Gump situation. When Bob Peckham stepped down [Chief Judge Robert F. Peckham took senior status], Bill Schwarzer [William W. Schwarzer] was a senior active judge and he was going to become chief. In fact, he had his stationery all printed up and was ready to move. But he got appointed to head the Federal Judicial Center back in Washington and he preferred that. It was a great honor. The next senior was Bob Aguilar, who was in trouble, if you recall, and he graciously stepped aside and I got it. [Robert P. Aguilar was convicted of obstruction of justice. The conviction was overturned, and he retired in 1996.] I was the chief from 1990, I believe it was, to 1997.

Please tell me about the dolphin cases. [See one of the cases, Earth Island Inst. v. Evans, 2004 WL 1774221 (N.D. Cal.), for an overview, and Earth Island Inst. v. Hogarth, 494 F.3d 757 (9th Cir. 2007).] You said that you were kind of surprised about your involvement in environmental issues.

If anyone had asked me when I first took the bench, “how will you be on environmental cases?” I would have said, “I have no idea; I’ve never been involved in an environmental case; I’m not an environmentalist.” But, interestingly enough, I’ve had a lot of fairly important environmental cases and I think I might be viewed as favorable to preserving the environment and friendly to those who litigate those issues. The dolphin case, I will say, also was my most popular case. I still, all of these years later, get packages and letters from school children. A teacher will come upon the case and talk about it and how many dolphins were saved by the ruling and then say, “Let’s, as a class project, write Judge Henderson and thank him for saving the dolphins.”

Let’s talk next about a case where you weren’t upheld: Proposition 209. [This initiative, passed by the California electorate in 1997, banned affirmative action in public contracts, hiring, and college admissions.] Was that a big surprise?

I got reversed on that for sure. You know, I think we have a wonderful system, the United States does, and I get a lot of comfort out of the fact that when I’m in trial or working on a hot motion, and I have to decide right then and there on the bench, the Ninth Circuit is there and they’ve got much more time to look at it. And if I make a mistake, they’ll correct me and I welcome that. But Prop. 209 is one of the cases that I haven’t taken graciously. I still think to this day that I ruled on the basis of the law, that I applied the law of the land as it existed at that time. I filed it the next day. I’m not sure I’ve ever worked on a motion as consistently hard as that one, putting in long hours, trying to get it out right away.

I thought that I would probably be sustained by the Ninth Circuit if for no other reason than it’s the Ninth Circuit. And I thought that maybe I would be reversed by the Supreme Court. But I thought it was more likely that the Supreme Court would say—because I think I called the law right—that this is no longer good law. But there was a fluke at the Ninth Circuit. Normally a panel is drawn who gets the case, but this one went to a motions panel. I didn’t realize back then that just as in my court, if tomorrow I don’t go to work and somebody has an important case that’s my case and they need an order from me or a hearing and I’m not there, we have a duty judge who is there and can do what I can’t do. The Ninth Circuit has a similar system, but it’s a three-judge panel. The appellants were very, very fine appellate lawyers. They knew that and they took it to that panel. It never got to the regular process of assignment at the Ninth Circuit. The motions panel is the one that reversed me, and there you have it.

But you’ve had many, many more successes. I’m really interested to hear about the prison cases, particularly about how they all got started.

I drew the Pelican Bay case. I was chief judge at the time, and one of the things you do is you watch the workload. All of a sudden the filings went way up in prison cases and most of the pleadings were on yellow legal pads in longhand from a place I had never heard of—Pelican Bay. I did a little checking and learned that it was a new prison up near the Oregon border. The idea behind Pelican Bay was that gangs corrupt and pollute the prison system. The concept was to take gang members out of 32 of the 33 prisons and put them all in Pelican Bay. Put the worst of the worst in Pelican Bay.

The warden came down to the court and met with a group of the judges that I’d gathered, the senior judges. There were about five of us, I believe, in my chambers. And he was describing the situation there, with great emphasis on the worst of the worst and, boy, we find this many weapons each day in there and these guys are really vicious.

The first time I visited, they took me in a room that’s probably as big as my dining room and all the way up to here with tables on them and this was probably for my benefit. I know they don’t do that all the time. They had all of the confiscated weapons—literally hundreds of weapons. One of the sad things about prisons in my view is that a lot of these guys are really smart and if they would turn that smartness to something constructive, they’d be successes in life. I mean, they showed me some weapons that can kill someone made out of toilet paper. And the prison is built in such a way where they don’t have fans and things where you can unscrew them and get metal. The toilets are specially made so that you don’t have these pieces of metal there and they still find metal and things to stab each other. It’s quite amazing. But anyway, the warden was very forthcoming in saying, “Here’s the way we treat them,” and started telling us stories of how they handled things, and I remember the judges, as he was talking, we were sort of looking at each other. You can’t do that, we’re thinking. Later on, a suit was filed by the Prison Law Office. And I drew the case. I ended up trying it and finding a lot of abuses. I think there were five constitutional violations that I found and one that I said there was not sufficient evidence. And the case was over and I was very gratified that the government didn’t appeal my ruling.

While the Pelican Bay case was in the remedial phase, the same plaintiffs’ counsel filed a medical case [originally Plata v. Davis, now Plata v. Brown, Case No. C00-1351]. The case was randomly assigned to a different judge. But, at the same time that they filed the complaint, the plaintiffs filed a notice explaining why they thought Plata was related to Madrid [the Pelican Bay case]. I wasn’t sure the two cases were truly related since Madrid was about excessive force and a lot of other issues, and not just medical care, but the government didn’t oppose the motion.

I ended up talking to some other judges, and a couple said, “Well, it’s within the spirit of the law. You could relate it and I think nobody would say anything. Or you could not relate it and it’s close.” So I decided that, at the very least, no one could accuse me of grabbing cases that didn’t belong to me. My law clerk and I took a close look at the allegations in the Plata complaint, and I ultimately decided to relate it. So that’s how the case got assigned to me.

You don’t think of the United States as having prisons that are worse than some Third-World countries, but we really did. The most shocking statistic for me was the unopposed testimony by an expert that said that because of inadequate medical treatment in the state’s prisons, a prisoner dies on average every six or seven days because of want of adequate medical care. And I just thought, people are dying. I took the position that we talk about life, liberty, and the pursuit of happiness, but the most important thing in my view is life. And people were losing their lives because of policies. After we met and tried to change things and it wasn’t happening, I realized that we needed to take some extraordinary steps. And that’s why I appointed a receiver.

What was the tipping point for appointing a receiver?

I used to go to Sacramento. I was trying to be collaborative with Rod Hickman, the head of the Department of Corrections. Good man. He was really trying. And I’m still in touch with him. I admire him. He was doing his best, but the machinery wasn’t there. We were trying to figure how to raise doctors’ salaries because doctors wouldn’t work in the prisons. And I named some little thing that would help the situation. And he looked at one of his guys and said, “What do you think?” And he said, “Yeah, yeah, we can do that.” And I thought, we’re getting somewhere. So I said, “Okay, how long will that take?” And they said, “Oh, 9 to 12 months.” And I said, no, this is crazy. This is a bureaucracy that’s helpless. And it’s tied up in its own red tape and we need a receiver who can cut through that. That’s when I decided to appoint a receiver.

One of the advantages of a receiver is that you can cut through red tape. You can actually do things that aren’t consistent with California law. You can raise salaries without going through this slow bidding process that takes months and high bids. So we started moving and making changes and getting things done—and we’re still doing it.

So the good news is you think that care is getting better. Did it have a lot to do with hiring personnel or was it mostly about the population numbers?

It had to do with hiring of personnel, among other things, but after we did that, we found that progress started dragging again. So we did something that we think is unprecedented. We coordinated the cases. Where someone in my court has a case that has substantially similar issues, and some of the discovery is the same, I’ve consolidated for purposes of discovery. Or if there are multiple cases before different judges in the Northern District, we have a local rule that provides that the cases can be related and reassigned to a single judge. Both of those are done fairly often. But we had never seen where a case in one judicial district, the Northern District of California, was coordinated with one in another judicial district. But we did it.

One of the problems we’ve encountered is that every time we say something favorable, like, “Boy, they’ve made real progress,” somebody says, “See, you can close up, get out of here; we’re ready.” And that makes it difficult to have a dialogue. You know, they are making progress and I would be disingenuous if I didn’t say it. But they also have more progress to make. And I really think that what the state is saying is not that we’re up to constitutional snuff, but that we’re close enough. They’ve spent millions and millions of dollars. They now have a great facility at San Quentin. There are experts that just finished inspecting at San Quentin and we’re waiting for their report. We think they’re going to probably say San Quentin is up to constitutional snuff.

Let’s switch gears a little bit. I know that you’ve received many awards in your career. And the Center for Social Justice at Boalt Hall is named after you, which is an amazing tribute. I’m wondering which award or honor you’re most proud of.

I think the one I will be most proud of is the next one I’m going to receive, which is from the ABA—the Thurgood Marshall Award. I’m really excited about that. Thurgood Marshall is one of my heroes. He did things in a way that I would like to do things, and the award is from the ABA, a national organization.

That’s wonderful—I know the awards committee will be very pleased. As we conclude, do you have any words of wisdom to pass along to judges who are just starting out and are, perhaps, surprised? (Laughter.)

They will be surprised! I would say trust your instincts. I’ve done that. I think sometimes you’re afraid to do something, but don’t be. It’s a hard job; be prepared for that. Have pride in your work and enjoy it. My dear friend Bill Orrick [William Orrick Jr., Senior U.S. District Judge for the Northern District of California], who has passed on, was down at the other end of the hall. He had trouble walking; he had part of his foot amputated. And I still remember he would call me on the phone—he had this raspy voice—“So, you busy?” “Uh, no, Bill.” “Can I come down there?” “Yeah, but I’ll come down there” because then I didn’t have my mobility problems. But he would come down this long hall, come charging in, and he would sit down and the first thing he’d say was, “You know something? We’ve got the best job in the world.” And he really believed it and he convinced me. I think it’s a miracle that Thelton Henderson is a federal judge. And it is the best job in the world.