Judge Hears Arguments on Prop. 209

A federal judge who was asked to block enforcement of Proposition 209 assured lawyers Monday that he will base his decision on constitutional issues, not on the merits of affirmative action.

U.S. District Judge Thelton E. Henderson, a former civil rights lawyer, promised a ruling “very soon” after closely questioning lawyers at a hearing that lasted more than three hours.

“This case is not about whether affirmative action is right or wrong,” said Henderson, a liberal who was appointed by a Democrat and who has been asked by Gov. Pete Wilson to step aside to allow a state court to rule first.

Henderson said he will examine only constitutional questions “to determine whether it is appropriate to continue the preelection status quo.”

Lawyers representing a coalition of Proposition 209 opponents argued that the ballot measure that seeks to end government preferences denies equal protection to women and minorities because they will no longer be able to ask for state programs to address discrimination.

The lawyers also contended that the measure improperly usurps federal antidiscrimination policies.

But lawyers for the state retorted that the proposition simply bars all discrimination and pointed to a provision that would allow state agencies to continue an individual affirmative action program if federal funds would be lost without it.

Gov. Pete Wilson, who was a strong proponent of the ballot measure, has asked Henderson to remove himself from the case and allow a state judge instead to examine the law, which passed with 54% of the vote.

Most current state judges have been appointed by Wilson or another Republican, former Gov. George Deukmejian, and they face voters in elections. Federal judges are appointed for life.

Henderson, an appointee of former President Jimmy Carter, has frequently ruled for victims of discrimination and called himself “more acutely aware than many of the feeling of being powerless.”

When he was a civil rights attorney for the U.S. Department of Justice in Mississippi in the 1960s, he was arrested for a traffic violation, assaulted, subjected to ethnic slurs and nearly jailed before he had the chance to show his credentials, Henderson said.

But Henderson also is regarded as a cautious jurist, and he questioned civil rights lawyers on several points. They told him they were seeking a temporary restraining order against Wilson and Atty. Gen. Dan Lungren because they are the top state officials who are trying to enforce the measure.

State lawyers countered that the opponents simply wanted the order to send a “message,” and that it was unnecessary. State officials are expected to report to Wilson on Wednesday on which programs would be eliminated by the ballot measure.