The judge who hates CCRI
REES, MATTHEW
The Judge Who Hates CCRI by Matthew Rees At his Senate confirmation hearing for a federal judgeship in June 1980, Thelton E. Henderson promised to recuse himself "for some period of time" from...
...When those two groups, along with others, challenged the constitutionality of the California Civil Rights Initiative (CCRI), the initiative newly banning the state's use of racial preferences, Henderson chose to hear the case...
...Henderson has issued other equally dubious decisions...
...But the message from Henderson is unmistakable: Califor-nians shouldn't expect CCRI to get a sympathetic hearing in his courtroom until well into the 21st century...
...Indeed, he exploited his position as chief judge of the U.S...
...Indeed, Henderson says he opposes CCRI because its implementation would result in "an immediate possibility of irreparable harm" to women and racial minorities...
...In January 1992 he ordered new restrictions on imports of yellowfin tuna from countries doing business with countries using "dolphin-killer" fishing nets...
...Seeing King's car in disrepair, Henderson lent King his rental...
...in Selma that resulted in Henderson's leaving the department...
...Embarrassed by the incident, Henderson resigned...
...But the conviction was appealed, and in 1982 Henderson overturned it, ruling that Spain had not received a fair trial...
...But that wasn't the end of Henderson's efforts on Spain's behalf...
...District Court in San Francisco to snatch the case away from the judge to whom it had been assigned, on the flimsy ground that he already had jurisdiction over a related matter...
...He attended the University of California at Berkeley and its Boalt Hall School of Law and in 1962 joined Robert F Kennedy's civil rights crusade as an attorney in the Justice Department...
...As for his judicial philosophy, Henderson told the Daily Journal in 1983: "I see my role as to interpret the law and rule on the merits and inject as little of my personal philosophy and biases as possible...
...Taylor Branch's Parting the Waters notes that "Wallace angrily denounced the federal government for subsidizing King's conspiracy against state laws...
...Born in 1933, he was raised in segregated Louisiana...
...The problem, says Robert Corry, an attorney at the Pacific Legal Foundation in Sacramento and a pro-CCRI litigant, is Henderson's Orwellian reading of the Fourteenth Amendment...
...The same logic would have sunk the 1964 Civil Rights Act, which, by opening up opportunities to blacks, inevitably entailed displacing a few whites...
...What are the chances that Henderson will come to see the merit of CCRI any time soon...
...To those familiar with his career, Henderson's tactics and rulings were predictable...
...And just this year he ruled against a new federal law accelerating court reviews of death penalty appeals and held a press conference to encourage lawyers to bring forward bias complaints...
...The most noteworthy is undoubtedly his campaign on behalf of convicted murderer Johnny Spain...
...Spain appealed the San Quentin murder conviction once more, claiming he had been denied a fair trial owing to his being shackled during court appearances...
...Henderson's sympathy for government-mandated racial preferences is likely a function of his own experience with racial discrimination...
...of course, the passage of time alone does not result in the recognition of the wrong, but it does seem essential in convincing a mass of people that an injustice exists and must be corrected...
...George Wallace discovered it belonged to a federal employee...
...His anachronistic approach to race-based litigation will cause abundant problems for CCRI proponents in coming months...
...After the board twice denied parole, his lawyer filed another appeal with Henderson, who again ruled in Spain's favor...
...In 1987 he ordered the now-defunct Pan Am to end its policy dictating a maximum allowable weight for flight attendants, resulting in a $2.35 million settlement...
...In September 1986, Henderson again ruled in Spain's favor, writing that the defendant was "so preoccupied by the chains that he was unable to cooperate with his attorney during the trial...
...But while King was using the car, aides to Gov...
...With 54 percent of Californians having voted in favor of CCRI, the "mass of people" has spoken...
...According to a profile in the Los Angeles Daily Journal, as King was preparing to leave his hotel one day in October 1963, Henderson arrived...
...That remarkable conclusion was followed by Henderson's demand that the state parole board review whether Spain, serving time at that point only for a 1966 murder, should be freed...
...He has ruled against numerous challenges to minority set-aside programs, declaring in December 1992 that a Bay Area mass transit agency's race-based contracting served a "compelling state interest" and therefore should continue...
...In a case against State Farm Insurance Co., found guilty of sex discrimination in April 1985, he approved a consent decree mandating that at least 50 percent of all new agents hired by State Farm for ten years be women...
...In a May 1982 speech at the law school of Cleveland State University, he noted that "cures for civil rights deprivations are rarely achieved in a short period of time...
...Spain's involvement in the "uprising"—he was an associate of black revolutionary George Jackson and a leader in the Black Panther prison movement—led to a new murder conviction in 1976...
...Spain was an inmate at California's maximum-security prison, San Quentin, at the time of the August 1971 riot that left two guards dead...
...During the 16 years since Jimmy Carter named him to the bench, he has been a loyal ally to litigious liberal forces in his district...
...It was a chance encounter with Martin Luther King, Jr...
...He worked on voting rights cases in Mississippi, Louisiana, and Alabama...
...And, beyond race, his rulings over the last decade reflexively support the usual liberal suspects, including prisoners, women, the overweight, homosexuals, dolphins, and squirrels...
...Thus, when the advocacy groups went shopping for a judge to hear their challenge to CCRI, they naturally chose Henderson...
...In the current instance, he went against the wishes of the state attorney general's office and brushed aside that other judge, conservative Bush appointee Vaughn Walker, to guarantee that CCRI would not be implemented...
...A retrial was scheduled, but before it began the U.S...
...This episode is hardly a stain on his record, but it helps explain why 33 years later he still places great faith in the federal government—and little trust in people—to promote racial equality...
...In addition to once serving on the boards of Equal Rights Advocates and the ACLU, he was until April 1992 on the board of a left-wing Berkeley outfit called the Meiklejohn Civil Liberties Institute, which has described itself as "a unique center for peace law and human rights...
...Before society recognizes and remedies inequities, at least two or three decades must pass...
...Neither Henderson's breathtaking activism nor his questionable judicial ethics comes as a surprise...
...The Judge Who Hates CCRI by Matthew Rees At his Senate confirmation hearing for a federal judgeship in June 1980, Thelton E. Henderson promised to recuse himself "for some period of time" from cases involving groups he had belonged to, notably the American Civil Liberties Union and an organization called Equal Rights Advocates...
...But the CCRI ruling is not the only example of his failure to abide by this ethic...
...Supreme Court reversed Henderson's decision...
...In the end, a Los Angeles Superior Court judge ruled in March 1988 that Spain had served enough time for the original murder, and he was freed...
...Appropriately, it was Henderson who ordered him released on $350,000 bail...
...He will hold another hearing on December 16 on a preliminary injunction and is expected to grant it...
...But that was then...
...His interpretation of the equal protection clause mandates unequal protection," says Corry...
...This cleared the way for him to rule, on November 27, that there is a "strong probability" that CCRI violates the equal protection clause of the Fourteenth Amendment...
...In January 1995 he ordered California's Department of Corrections to amend some of its practices at the maximum-security Pelican Bay prison, saying they constituted cruel and unusual punishment...
Vol. 2 • December 1996 • No. 14
