ABA Thurgood Marshall Award Remarks by Judge Thelton E. Henderson

Thank you, Mr. Schickman, for that wonderful and more than generous introduction.
 
Thanks, also, to filmaker Abby Ginzberg, for so ably filming my life and career in a way that I could hardly have imagined.
 
And thanks as well to the Bar Association of San Francisco, its past presidents, its past executive director, my good friend, Dru Ramey, as well as Jim Finberg, Kelly Dermody, Ed Kalgren and everyone else who so vigorously championed my cause.
 
And, of course, thanks to Jim Brosnahan, he of the silver tongue, who has shown us locals, once again, what a real keynote address sounds like. I can think of no other person with whom I’d rather share the podium on a night like this.
 
This evening is quite special for me. Here tonight are people from all parts of my life, including two tables of my esteemed colleagues from the Northern District bench, and I am delighted – and astounded, and humbled – that so many of you have come here tonight to share this occasion with me.
 
And I would be seriously remiss if I didn’t thank my 33 generations of law clerks and staff, many of whom are here tonight, four tables strong. I can tell you, right here and now, that without these bright, wonderful and completely dedicated people, willing at all times to work as hard and as long as the occasion required, always being up to the task at crunch time – of which there were many – I would not be standing up here tonight.
I am going to ask them all to stand and receive the applause they so richly deserve.
 
I have here tonight former colleagues from my Civil Rights Division days in the 1960s. We trodded the back roads of Louisiana – where I was born – and the back streets of Alabama – where I came of age as a new lawyer, as we prepared voting rights cases and – in doing so – unwittingly helped to pave the way for a two-year-old toddler in Hawaii to some day become President of the United States. It’s from these colleagues, and especially our boss, John Doar, that I learned the true meaning of total commitment and dedication to a noble cause.
 
As many of my friends here tonight know, last year I declared emphatically that I was not going to accept another award, and that was because I really do feel an embarrassment of riches. But, when Mark called telling me I had won the Thurgood Marshall Award, it wasn’t within me to turn this one down. An award named after Thurgood Marshall, an award from the ABA’s section of individual rights and responsibilities, so aptly called “the conscience of the ABA.” An award that would put me in the company of so many of my personal heroes (and sheroes) was just too much to pass up.
 
It would be a bit of a stretch to say that Thurgood Marshall was a role model of mine as I was growing up. Truth be told, in my early years, I really had little exposure to social justice issues, beyond family tales of their encounters with racism and Jim Crowism. My idea of a lawyer was someone who drove around South Central Los Angeles in a nice car, wearing a nice suit, and whose main job seemed to be getting people either out of jail or out of marriages. But once I started learning more about the civil rights movement, and especially as I began studying law, Thurgood Marshall emerged as a hero. He was one of the very few public role models available for a young African-American wannabe lawyer, and I was deeply inspired by the things he had accomplished at the Legal Defense Fund – achievements that reverberate throughout this room tonight.
 

My appreciation of this honor tonight runs even deeper when I look at the prior recipients of the Thurgood Marshall Award. Everyone on the list is remarkable, and I certainly hope that the old saying is true, that we are known by the company we keep, because, tonight, I keep some very distinguished company.
 
Indeed, I know that my dear grandmother is looking down upon us and saying, “My Thelton is chopping in the high cotton tonight.”
 
Here I am, receiving an award that has been previously given to such beacons of excellence as Ruth Bader Ginsburg; such beacons of judicial courage as Judges William Wayne Justice, Frank Johnson, and Matthew Perry; and people such as our own Dale Minami, the Inc. Fund’s Elaine Jones, former Attorney General Janet Reno, and, of course, Thurgood Marshall himself, who was the first recipient of this award.
 
In a way, it seems even more amazing to find myself standing up here at all, given the uncertain future awaiting me out of law school. The legal landscape of 1962 was vastly different from today’s. Most law firms did not interview black law students. Nor did they usually interview women, including my classmate, Kay Werdegar, who graduated first in our class and could not get an interview. Ironically, Kay also went to the Justice Department, and she now works across the street from me, as a Justice of the California Supreme Court. So I suppose things do have a way of working out in the long run.
 
My game plan in those days was to first decide whether I was going to remain in the San Francisco Bay Area or return home to South Central Los Angeles. Once that was determined, the task was to find a successful black lawyer, who had some extra space and needed some help, and handle whatever overflow work there was available and gradually build my own practice. That’s the way it was done.
 
Fortunately for me, fate had a much better game plan. John Doar, who happened to be a Boalt Hall alum, called his alma mater to see if any black students were graduating that year because the department, under Bobby Kennedy, was looking to diversify its ranks of attorneys. And so began the most wonderful job that I ever could have imagined.

And, I almost immediately found myself at the very eye of the civil rights hurricane. I am sure I am not alone in remembering all of the significant events that happened back in 1963: Martin Luther King, Jr.’s brilliant “Letter from a Birmingham Jail”; Bull Connor’s use of fire hoses, cattle prods, and police dogs to quell the Birmingham demonstrations; the murder of Medgar Evers; the death of four little girls in the Sixteenth Street Baptist Church bombing; and, of course, the March on Washington, the 50th anniversary of which many organizations across the nation are preparing to celebrate later this month.
 
And there I was, smack dab in the middle of it all. It was a heady and daunting job for someone just out of law school. It was at times a very scary and dangerous job, but it was one that I’ll never forget, and certainly do not regret. In many ways, it formed me to be who I am today, as much as it informed me about the systematic mistreatment that can be inflicted on our fellow human beings, even as public officials look the other way, and it shaped my vision of what is just and fair in our society. I can’t possibly imagine a better way to have started my legal career, or a job that could have more deeply affected the rest of my life. I am truly blessed.
 
One of my former colleagues on the bench, Bill Orrick, used to come down the hall to talk, and we’d reminisce about our days at the Justice Department, he a Kennedy general, who headed the antitrust division, and I, a young private in the trenches. I truly treasured that time together. We agreed that serving in the Kennedy Department of Justice was a highlight for both of us. We would end each and every meeting with him banging his hand on my desk and declaring, “Thelton, we’ve got the best job in the world.” One of the things he was most proud of was the injunction he obtained for the Department from Judge Frank Johnson – who was the second recipient of the Thurgood Marshall Award. It was an injunction that allowed more than 3,000 civil rights demonstrators to march across the Edmund Pettis Bridge, on their way from Selma to Montgomery, to demand the right to vote. And less than five months after this historic march, President Lyndon Johnson signed the Voting Rights Act of 1965. And here we are, almost 50 years later, seeing that act under siege.
 
I had left the Justice Department by the time of that march – and we shan’t discuss the reason for that – but I well knew what it meant for that march to take place, and I well understood the measure of courage it took for a judge from the deep south to issue the ruling that allowed civil rights history to proceed on course.
 
I also eventually came to realize that the willingness of Judge Johnson and of another southern federal judge and past recipient of this award, Judge William Wayne Justice of Texas – to do what they did – to “do the right thing,” as it were – in the tumultuous times and in the angry places that they did it, made my most controversial decisions pale by any comparison made on a scale that might measure courage. After all, none of my rulings has been made in a “segregation forever” Montgomery, Alabama, or a “massively resistant” Tyler, Texas. Instead, mine have been made right here in good ol’ let-it-all-hang-out San Francisco, where I can see the golden dome of City Hall out of my chambers window, and where I can look out and often see one or two protests a day. These protests deal with a myriad of issues from the right to sit on the sidewalks of San Francisco to the abolishment of the death penalty. To me, it speaks volumes that I have not yet seen a demonstration to advocate prisoners’ rights to decent facilities and treatment. In my view, prisoners are probably the most marginalized group in our society.
 

As fate would have it – little did I know, when I was assigned a prison case in 1990 – prison litigation would come to define this final lap of my judicial career. One of the things that is most striking to me about prison litigation is what it reveals about our society.
 
In many ways, this issue goes to the heart of our social fabric, for it has been said that, “if a test of civilization be sought, none can be so sure as the condition of that part of society over which the other part has power.”
 
More than one person in the legislative or executive branch of government has told me of their reluctance to take on the horrendous prison conditions that I tell them about, because it would be seen as “soft on crime” or make them seem to “hug a thug” . . . And they are no doubt correct . . . And isn’t that a sad statement about our society . . . that punishes those who might seek to come to the aid of those who cannot help themselves?
 
And I found myself thinking: If only some of these people could summon the courage to follow the example of Frank Johnson and Wayne Justice, and simply “do the right thing” out of their own humanity, and for their fellow human beings, even though it be unpopular, and isn’t that what the Thurgood Marshall Award is all about?
One of the most vivid things I have ever experienced on the bench – the pictures of which I will never forget – took place in that prison trial. A mentally ill inmate smeared himself with his own feces, which I should hasten to add was itself a manifestation of his mental illness, and not at all uncommon in a prison setting. The exasperated guards sought to make an example of him by putting him in a special infirmary tub designed for therapeutic purposes. The tub had a gauge that could turn the water up unusually hot, much hotter than a regular shower or bathtub could get. They put the temperature to its highest setting, and they lowered the inmate in there, despite his screams, in order to, quote, “cleanse him.” The water was so hot that it caused the inmate’s skin to start peeling and his flesh to hang in large clumps around his legs, much like cooked meat. What really struck me was that some of the guards seemed to think that there was nothing wrong with this inhumane treatment; to them, after all, it was just a prisoner who needed to be taught a lesson. Those photos remain a vivid and horrific image that I shall never forget.
 
Another startling fact that has stayed with me is that eight years ago, it was uncontested by the state defendants that, on average, one prisoner was dying unnecessarily every six to seven days due to medical neglect or incompetency.
 
Based on these untenable conditions, it became necessary to appoint a receiver to take over the system until it returned to constitutional compliance. A few years ago, the Receiver went to address the citizens of a northern California town where he hoped to build a much needed new prison medical facility. He was there to assure them that the new jobs created by the facility would go primarily to the locals in this economically depressed community.

To stress the urgency of building the facility as quickly as possible, the Receiver mentioned the dreaded statistic – a prisoner had been dying every six to seven days due to inadequate medical care. He was shocked, as was I, when a substantial portion of the audience laughed and applauded.
 
This issue – how we treat those over whom we have power – I think goes to the very soul of who we profess to be as a nation, and is becoming an increasingly vital issue for us to address as our inmate population continues to remain disturbingly high.
 
Justice Marshall was fully aware of the court’s obligation to provide decent living conditions to those citizens whom the state must punish, and he believed that all persons, including prisoners, are entitled to the court’s protection of their basic rights.
 
As he once said, “The goal of a true democracy such as ours, explained simply, is that any baby born in these United States, even if he is born to the blackest, most illiterate, most unprivileged Negro in Mississippi, is, merely by being born and drawing his first breath in this democracy endowed with the exact same rights as a child born to a Rockefeller.”
 
He continued, “Of course it’s not true. Of course it never will be true. But I challenge anybody to tell me that it isn’t the type of goal we should try to get to as fast as we can.”
 
I certainly agree with Justice Marshall, who seemed to believe that perhaps true equality might never be attained – or, at best, would be a long time coming – but that it should always be what we, as a society, strive for and insist upon. A society where it would not be remarkable to have someone other than a white Protestant male as our president, or where the race of a victim and his or her assailant would not be front-page news. It is our moral obligation to strive for a society where everyone would have confidence that the criminal justice system actually does provide justice. A society where we would no longer count “firsts” – the first black person to achieve this, the first woman, the first Latina, the first gay to achieve that – because so many have come behind that we have lost count.
 
That’s the type of society that Thurgood fought for all his life, and to which I hope we will evolve – not in my lifetime, and perhaps not in my son’s, but hopefully my grandson will experience it. And it is the type of society that this section of the ABA fights for every day.
 
Not everyone can devote an entire career to fighting for justice, as Marshall did, but we can all contribute. I urge all of you here tonight to leave here and strive to contribute . . . to make a difference. Go out there and “do justice.” “Do the right thing,” whether you be in a comfortable setting or a stressful environment such as the ones in which Frank Johnson and Wayne Justice found themselves. That’s how civilization moves forward.
 
That’s always what I had hoped to do as a lawyer, and it continues to be my driving force as a judge. And, as I look back on my career, which is rounding third and headed for home, I know that life has been very good to me, and that I have played a part, albeit a very small one, in our society’s struggle for equality. I have learned from some of the very best – such as John Doar – and Leon Higginbotham, and Tony Amsterdam, and Cecil Poole – and I only hope that I have done them all justice. 
 

I also hope that I will live up to the tremendous honor you have bestowed upon me tonight, and to the example set for all of us by Thurgood Marshall. Once again, I thank you, so very much.