Judge Thelton Henderson receives the 2013 Thurgood Marshall Award from the American Bar Association on Saturday, August 10th at the Westin St. Francisco Hotel in San Francisco. .. ()
SAN FRANCISCO — As U.S. District Judge Thelton Henderson prepares to retire Friday, his colleagues across the Northern District of California can expect their own dockets to grow as his 125-plus remaining cases are farmed out.
Before Henderson’s routine cases hit the wheel for redistribution, he made sure there was a smooth handoff for what he calls his four “institutional” cases—long-running matters involving special education in East Palo Alto’s Ravenswood City School District, racial profiling by the Oakland Police Department, inadequate health care in California’s state prisons, and the monitor the judge installed to ensure PG&E Corp. implements changes as a result of it criminal conviction before him last year.
Henderson recently sat down with The Recorder to discuss the work that went into handing off his cases, his plans for retirement, and worries he has about “a president who refers to us as ‘so-called judges’ and has so little respect for the third branch of our government.” The following transcript was edited for space and clarity.
The Recorder: How did you decide when your last day would be?
The way I selected that day is that I hire my law clerks for a year. I let them decide when their year is up. They got together and decided Friday, Aug. 11 is the last day they will work.
That’s my last official day, and I say it that way because I’ve got 37 years of things, you can see them around—pictures, awards, books, collections of things—and I suspect if I don’t have them out by Aug. 11, they’re not going to evict me.
So what do you have to do in the run-up to Friday?
I still have about 150 or 125 cases that are still assigned to me. I’m trying to wrap my cases up in the neatest little package I can for my colleagues.
I’m going to write a memo for each to say “Here’s where the case is. Here’s my view of the case. Here’s what I’ve tried to do and good luck with you, and if you have any questions you know where to reach me.”
Have some of them already gone out on the wheel? I feel like I’ve seen other judge’s names pop up on some of your cases.
For what I call my “institutional cases,” I convinced our assignment committee and chief judge to plan ahead. Like in my big prison case, the Plata case, which I’ve been on for 14 years or something.
That’s not a case where you can give a little memo and say, “Here’s what’s going on.” That one and the other three, I asked the chief to randomly assign those early so that I could start meeting with those judges. It’s going to take a little while for them to get up to snuff on it.
Jon Tigar has the prison case and he sat in with me on some case management conferences. Judge Bill Orrick Jr. has my Oakland police case, the Allen case, and he sat in on a case management conference.
The other two are the special education case out of East Palo Alto, the Ravenswood School District, and the PG&E case, which is almost finished. There’s a monitor that I’ve assigned whose job is to make sure PG&E does the things they’re required to do in the probation report.
And Judge William Alsup has the PG&E case?
Yes, Judge Alsup has the PG&E case and we’ve met on that. After the monitor was selected jointly by PG&E and the prosecutor, the monitor contacted me to meet and I said, “I’m not going to be the judge, I’m not going to work with you.”
So I haven’t met with him. Judge Alsup will meet with him. And they’ll set the course for how the monitor goes about his job.
I’m so happy for the litigators on those cases. One thing that the judges are going to do is bring a new energy to those cases.
I was talking to Judge Vince Chhabria, one of the judges, and he said, young fellow that he is, “Do you think it would be proper, Thelton, if I went out and visited the Ravenswood School District?”
I’m wheelchair-bound now and it’s a major effort to visit schools the way I used to. I think the way you manage cases is that you go out on the scene and let them know you’re there.
It’s interesting. When I announced my retirement, many of my colleagues were wishing to get one of my cases because I seem to get these extremely controversial ones.
Well, you’re also not shy about getting your hands dirty in these cases.
No, I’m not.
I don’t know if judges who’ve come to the court since you joined are afraid of being labeled “judicial activist.” You’re handing off four monitorships. Could we find four monitorships in the rest of the court?
I don’t know for sure, but I doubt it. I just came to this court with a belief that when you find something being done that’s unconstitutional, your job as a judge is to make it right—to stop the unconstitutional behavior.
To take the prison case for example, I was shocked when I was new to the case and told by experts—and the state did not deny it—that a prisoner was dying on average every six days because of inadequate medical care.
I was aghast. People are dying because of this behavior. I don’t know how many times I’ve said this to the lawyers involved in meetings and on the phone, “I’m not going away. Don’t drag your feet. I’m here to stay.”
Well, I am going away now on Aug. 11. But for years, I said, “Until you fix this right …”
We’re almost there by the way. Last year, my wife and I visited San Quentin and we saw this wonderful state-of-the-art medical facility. It’s like what you would find outside the prison setting.
And that’s what it should be. If you put someone in prison, the Constitution says you owe them a duty to take care of them medically. And it shouldn’t be the kind of medical care that prisoners get. It should be the kind of medical care human beings get—that every American deserves.
Institutions don’t like federal judges coming in and telling them what to do. That’s the problem. It’s not that it takes 14 years. It’s not that it takes the Oakland Police Department all of these years to not racially profile.
It’s that they don’t want to do it. It’s that they dig in their heels and I come to them with my stick and say, “You’re going to do it, by God.” And that’s my view of the job.
Was there any hesitation to leaving the bench now, given that these cases are long-running and complex?
There was some hesitation, but there has been for a few years. And I just decided that it’s time to go on to the next phase of my life, whatever that may be. I speak of it in terms of, “I’m going to start doing whatever it is that retired people do.”
And that’s something that’s in the works. My wife, who is a professor at San Jose State, will retire in a year-and-a-half when she reaches her 30-year maximum and maxs out her retirement.
We want to travel. We love car trips. We call them “family trips.” Me, my wife and Missy, the little dog that barked at you when you came in. We love to do that.
But I want to stay involved. I recently thought I want to maybe do some work, not appear in court or anything, but work on some asylum cases and advise people with public-interest-type organizations.
And recently, I got an email from Dean Erwin Chemerinsky at Berkeley School of Law inviting me to be a visiting … what did he call it? “Visiting dignitary” or “visiting muck-a-muck” at the law school next year, and I’ve tentatively accepted that. I love working with young people.
They’ll give me some office space and some things to do: teaching assignments, co-teach or visit classes and be around.
So why leave the bench now? When we talked about your decision back in January you said you were “starting to feel the grind” and that you didn’t want to play a season too long?
Yeah and that’s true. I’d started feeling the grind and I’d been thinking about it. The PG&E case was really tough and as I started to drag through that case for the first time, I think, you know I’m kind of an old guy. I’m getting old.
It made me think that maybe this was the time, because there will always be another three-month trial coming up. And I thought I might not be up for that.
Was it just the dregs of trial?
That was a particularly tough trial. It was particularly hard-fought. And at the start of the trial, we were getting motions it seemed in the middle of the night.
My law clerk, Michelle, did a marvelous job. It wore her out too, and she’s 24 years old. We were both tired.
I call it a case where for PG&E, it was a bet-the-company case and PG&E said, “Do what you have to do.” And the law firm did what it could to not get convicted. That was part of it, but not all of it.
So what concerns or worries do you have about our courts as you prepare to leave the bench?
Well, one worry is having a president who refers to us as “so-called judges” and has so little respect for the third branch of our government.
That’s worrisome, but that’s a personal worry and a personal concern that we’re referred to in that manner, and as if we’re an afterthought in the function of our government. I think the judiciary plays a very important role now—in the travel ban cases, in all sorts of important cases.
They’re playing an increasingly important role in the environment cases being brought. I think the judiciary is here to stay and I have no worry about my colleagues that I’m leaving behind. I think they will be doing roughly what I started doing 37 years ago. It won’t be that different.
Is there anything about this particular political moment that gave you pause about leaving the bench?
I wouldn’t say “pause about leaving,” but yeah, I remember thinking, “Oh boy, this is really something.”
One, it’s exciting. Two, there’s really a fight going on here and I love a good fight and I was thinking, “I’d like to be in that and have my voice in there.”
I’ve participated in some controversial and important cases and thought, you know, it might be fun to do that. Not to the point where I was ready to withdraw my resignation. No, I did have that slight pause and regret, but I know it’s time to move on and I’m not going to change that.
Ross Todd is bureau chief of The Recorder in San Francisco. He writes about litigation in the Bay Area and around California. Contact Ross at firstname.lastname@example.org. On Twitter: @Ross_Todd.