Booknotes

STEPHEN CARTER, AUTHOR, "REFLECTIONS OF AN AFFIRMATIVE BABY": The book is fired by two concerns about the direction our national conversation about racial justice has been taking in recent years. One of the concerns, and the one I think that generates the title, is that in the conversation we've been having across the country about affirmative action, I think too little is being heard from people like myself; that is, people who are beneficiaries of affirmative action programs, who would like to preserve for others the same kind of leg up that we've had and at the same time, recognize some of the complexities and difficulties and want to press the search for something better.

The second part of my concern was about the rhetoric of our dialogue that too often now in the increasingly raucous battle about what's the correct route toward racial justice or racial equity in America, people are talking past each other, yelling at each other, directing invective, calling names. And what I'm hoping is to suggest that this name calling, this invective has gotten out of hand. We need to sit down and talk about these things, thrash them out, try to work out why some people are pained by affirmative action programs and some people think they're demands for simple justice.

CARTER: I'm a law professor at Yale, and my specialties involve constitutional law mostly, especially the separation of powers in the federal government. I also do a fair amount of writing about law and religion issues and also about copyright, trademark and patent law.

CARTER: I grew up in Washington, D.C., for most of my life, although I also lived in Harlem as a child and then I went to high school in Ithaca, New York before I went off to Stanford University for college and Yale Law School.

CARTER: My degree was history, although I should say I started out wanting to be a physics major because where I went to high school, that's what you did if you were smart. You had to be a physics major or a math major. That was a kind of tradition. I didn't quite have whatever it took to do physics at Stanford, so I switched to history and went on to law school.

CARTER: My parents were both college graduates, and this, I realize, is not the typical picture one has of what it's like to grow up black in America. It's not that I experienced no episodes of racism in my life. I've experienced many. But my background was a middle class and fairly comfortable background. My father at the time of my birth was practicing law in New York, later was in the Kennedy and Johnson administrations in Washington before the family moved off to Ithaca where he taught at Cornell.

CARTER: He worked for what was then HEW, Health, Education and Welfare, for a while. He was in on the founding of the Office of Economic Opportunity and I think when John Gardner left HEW to found the Urban Coalition, he went there for a year or so. I'm not sure if I have the order of these things exactly right. He did all of those things before going off to Ithaca in 1968.

CARTER: Lisle Carter is his name.

CARTER: Well, you know, history was something that we talked about a lot when I was a kid. That is, we lived in a house that was full of books. That was the way my parents were. They were readers and so the children all became avid readers as well. There were always history books on our shelves. Also, I was that peculiar kind of kid who liked to sit down and read the encyclopedia, just to pick up a volume of the encyclopedia. We got a Britannica when I was about 8 years old, and I would sit down and simply read it. I'd take a volume and start reading whatever articles were there. But I think my interest in history really became piqued when I was an undergraduate at Stanford. Even as my days as a physics major, I enrolled in a wonderful American history course taught by a fellow named Barton Bernstein. It was a 20th century American history course. Something about that course made me realize how little I really knew about anything that had happened outside of my own consciousness in America or in the world. I think a lot of that is what drove me to want to learn more.

CARTER: Did I grow up being smart? I don't know how to assess that from my point of view. I was an awfully arrogant child. I think a lot people would probably say I'm an awfully arrogant adult. I was a kid who was smart-alecky. That's what I would say. I was proud of my cleverness. I think that the development of that cleverness into a more disciplined habit of mind probably took place more in high school than in junior high school. In junior high school, I could describe myself as the sort of kid who was more interested in test scores than grades. I lived for standardized tests. In high school to some extent, too, although grades became more important to me then.

CARTER: Because everybody told me I was. In fact, when I was a child, people always said I should be a lawyer. They said I should be a lawyer because I loved to talk. I loved to contradict -- especially to catch adults in contradictions. That was one of my great joys of my 9-, 10-, 11-year-old days. One of the things that then always happened was I was told I was being smart-alecky or smart-mouthed or other things. The other kids couldn't stand me. I think one of the reasons they couldn't stand me is because I was something of an intellectual show-off, but, again, not in the sense of someone who was displaying any kind of deep and profound intellect. I don't want to give that idea. Just someone who was very much on the surface clever, smart-alecky, using big words for their own sake. Things like that.

CARTER: Absolutely. That actually continued all the way through college and law school as well. When I was in high school, this was an especially difficult time because -- well, junior high school, too. My junior high school and my high school were both overwhelmingly white, and I think one of the things that was driving me then, one of the reasons my intellect began to become more disciplined and one of the reasons my had was always up, was that I had a real sense that the other kids and most of the teachers had real doubts about what I was doing there.

That is, I would always place into honors sections or into the top sections of various courses, although there were some painful occasions when guidance counselors tried to keep me out of them, I should add. But I would always sense among the other kids for the first couple of months a sense that I was an interloper. It was not unusual when I was in junior high school or high school for me to be in a honors section of a class and be the only black kid who was there.

CARTER: Here in Washington. I went to the public schools. I went to Alice Deal Junior High School, which was then -- I don't know if it still is now -- an almost all white school. Then in Ithaca, I went to the public schools also, Ithaca High School, which is not as heavily white as Alice Deal was here, but it was a school in which the honors tracks, the upper sections of the courses, were heavily dominated by the white children of Cornell faculty.

CARTER: Now I'm about to turn 37.

CARTER: Since 1982. I joined the Yale faculty three years out of law school, a year after I got married.

CARTER: After law school, I came to Washington where I was privileged to serve as law clerk for two outstanding lawyers and outstanding jurists. The first was Judge Spottswood W. Robinson of the U.S. Court of Appeals for the D.C. circuit. The second was Justice Thurgood Marshall of the United States Supreme Court. After those two clerkships, I practiced law in Washington with a firm for a little less than a year before going back to New Haven to teach.

CARTER: The name of the firm was Shea & Gardner. It's a small firm. At the time it's what used to be called a boutique firm, a firm that had specialties that appealed to certain clients. It liked to think of itself as having enormously high entrance standards and so on and so forth. I'm told it's gotten much bigger since then. It's lost some of the boutique charm, but it still is a very nice firm and I have many friends there.

CARTER: Spottswood Robinson, who recently retired from the D.C. circuit, was one of the great civil rights lawyers of the era of Brown vs. Board of Education. When you think of the great lawyers of that era, the great strategists like William Hastie and Charles Hamilton Houston, there were also the important courtroom lawyers -- Thurgood Marshall at the apex. Spottswood Robinson, who was from Virginia, was one of the leading lawyers. There were others also, such as Robert Carter and Connie Motley and William Coleman and many others, as well. But Marshall, of course, was the head of the NAACP Legal Defense Fund and was the chief litigator, in effect, in those cases. Spottswood Robinson was a very important litigator in those cases as well before he was elevated to the federal bench sometime in the 1960s. I'm not sure just when.

CARTER: The United States Court of Appeals for the District of Columbia Circuit.

CARTER: Now, that's an interesting question. It was either Kennedy or Johnson, but I'm embarrassed to say I don't remember which.

CARTER: Well, my clerkships with both Judge Robinson and Justice Marshall were wonderful learning experiences. What happens is it's sort of, I think, like being a research assistant for, say, a professor except that you work not on a particular project, but you work for the person who is in charge. You spend all your time doing whatever assignments you're given by the judge or by the justice. It's often described as being part of a little law firm. There's the judge, a couple of secretaries, and two or three or four law clerks depending on where the clerkship is, and together you work as a team to produce the product of the chambers.

CARTER: Oh, goodness. Let's see. I started clerking for Judge Robinson in 1979, so I was just about to turn 25. I was 26 when I clerked for Justice Marshall.

CARTER: I don't ever talk about what actually went on in the chambers, the way the different judges worked. All I would say is that I would like to think I was helpful to them. Also much of the time with both judges was spent arguing with them because that was what both of them liked. They like to have their law clerks argue about the merits of the various cases. They were arguments that I as a law clerk generally lost, often with reason, but that was the way it was.

CARTER: Aggressive may not be quite the right word. I would like to think I was a lot less smart-alecky than I had been as a child, that whatever discussions we held were a little bit more measured and thoughtful, although both of them, Judge Robinson and Justice Marshall, were great teasers. They loved to find what would get under their law clerk's skin to upset them and embarrass them and make them blush -- not at all in a painful or mean-spirited way, because it was fun and it lightened the atmosphere in the chambers. Really, if you think about the work of what a court does, it's a lot of work and tremendously important because lives and liberty and money is at stake.

CARTER: I love writing, ever since I was a child. When I was a little kid, I used to write short stories. Literally, when I was in fifth and sixth grade, I was writing short stories usually for my own amusement or for the amusement of friends. Indeed, I think if you asked me when I was in junior high school what did I want to do with my life, I would have said, "I want to be a writer." Writing is my passion -- I would say one of my great passions. One of the things I love about academic life is that I get to write, and I do a lot of writing. I like to think that the amount of writing I do -- I'm talking here about writing in scholarly and professional journals mostly -- is on a par with -- I think there are few law professors in the country who do as much writing as I do because I just love it so. It's so much fun. It's one of the reasons I enjoy the job that I have.

CARTER: Sure. Well, actually I now put them now into a word processor, but that's right. I like to sit there -- I like to have an idea and then to sit there and begin to type or occasionally begin to make notes and have it slowly flow out onto the paper and then begin to fiddle with it and fiddle with it and sometimes get mad and throw it away and start over again, but eventually something emerges that makes sense, that I hope is creative or thoughtful and sometimes is even a little fluent. I think that one who writes as much as I do sometimes runs a risk that things will not be as well-polished as they might be. But I always have another idea. There's always something else I want to write about.

There are students who work for me as researchers who get very frustrated because I might tell someone that I'm doing this great project about law and religion. The students will say, "It's very exciting." They'll be working and working, and suddenly I'll say, "We're putting it aside. I've got this great idea about copyright law. I'm writing this now. You've got to go do this research." They get very frustrated because they have to move from project to project, but that's the way my mind works. I'm quite intellectually peripatetic.

CARTER: Mostly in my office, although more and more I've taken to writing at home since I got a home computer. For the first few years I was on the Yale faculty, I had only a computer in my office, and then I have one at home. I do some writing at night at home, but I've got two kids. When I'm home, I find I'd much rather play and tumble around with them than sit at my word processor.

CARTER: We have a daughter who has just turned 6, just starting first grade, a son who's 3. He's having his first school experience. He started preschool in early September.

CARTER: Yes, I think so. They are already into the same kind of behavior I was into -- even our son, who is very officious about things. They love catching their parents in contradictions. They love challenging us, arguing with us, but always in a respectful way. I think they're going to be a little bit more respectful than I was. My wife is a moderating influence on me and on the children also, so I think that rather than being quite perhaps as smart-alecky as maybe I was, that theirs will be a little bit more measured intellect even when they're very young.

CARTER: My wife is a joy. I refer to her as God's gift. We met in law school. We were simply friends there. We didn't actually start going out until the coincidence that we'd both gone to Washington to practice law. It was a year after law school that we started going out.

CARTER: That's right. Her name is Enola Aird, and the dedication is "for gifts sine numero and sine quibas non," for gifts without number and without which not. I will confess that I originally wrote sine qua non, but I consulted with a Latin scholar who told me that since the gift was plural it should be sine quibas non.

CARTER: Smart-alecky?

CARTER: I don't know. It's the way that lawyers write. A lot of my writing is in Latin, more than a lay person's writing. Latin phrases drip from the pages of law reviews. Sad but true.

CARTER: My wife's practiced law for most of her life, although for the last three-and-a-half years, maybe four years, I guess, she has been mostly at home caring for and nurturing our children. Lately she's also gotten involved in writing a book of her own about her experiences moving from the practice of law to being full-time with the children. Also she has recently become chair of the Connecticut Commission on Children, which is turning into a kind of full-time, but unpaid, occupation.

CARTER: We live outside of New Haven, and Connecticut is a lovely state. We like New England an awful lot. New Haven, of course, like many cities, has a lot problems. There are great problems of poverty there. There are great problems of crime there. But in a way that's helpful because it helps us to educate our children about the world that they're growing up in, that things are not easy. Our children are growing up with a lot of advantages. Our children go to private schools. Our children live in a relatively safe area, but we spend a lot of time with them taking them through other parts of the city so they'll understand that their lives are not typical. They're not typical for black kids; they're not typical for kids generally. It's very important to us that they grow up in an awareness of that from the time they're very young.

CARTER: Yes, I do. I like my life. I love being with my family. We play a lot, we run around a lot, we vacation a lot. I like my job. I like my church. I'm pretty happy with the way things are for me, but also I try to keep a keen awareness in my own life that things are not that way for everyone.

CARTER: Yes. I was voted tenure about six years ago.

CARTER: In theory tenure means that you have a job for life, or at least until mandatory retirement age, although in practice, the things aren't quite so clear. A few years ago, a fellow who had been a government official for many years came to Yale and received tenure. He expressed himself as being very happy not to be battened anymore by the political wins, and the dean in his toast to him said, "Yes, you've gone from serving the pleasure of the president to serving the pleasure of the Yale Corporation," which is really what tenure is. Tenure can be removed at any time by the school if they really want to do it. That happens very, very rarely in America, but it does happen sometimes.

CARTER: A lot of people ask me questions like that, and I guess that I'm not a very ambitious fellow anymore. I want to keep doing what I'm doing. I want to teach law, I want to work with my students, I want to write and I want to be with my family. If I can keep doing those things, I'll be happy for the rest of my life.

CARTER: No. I have a sense that academics often don't make very good judges. I think some of the Supreme Court justices who have been academics have perhaps been not everything a justice should be. One of the problems with academic life, you get so caught up in abstractions that you begin to lose touch with real people. I also think it's possible to get so caught up with the practice of law that you can lose touch with abstractions. I think that the ideal judge should have a little bit of both, should have a sense of the great abstractions that law represents and though which law must be reasoned, but at the same time should have a sensitivity to the lives of the real people who are ultimately affected.

CARTER: I'm happy to say I get big enrollments -- big for Yale. Yale's a small law school, but I get big enrollments, so I guess that students either find me an effective teacher or easy grader. But since I'm thought to be a hard grader, I'd like to think they think I'm a pretty good teacher. In most falls, I teach an introductory contracts course that's going to be anywhere from 75 to 90 students. That's the course I'm teaching right now. Then in the spring, most springs I teach a large lecture course in intellectual property, which last year had 125 students in it. You have to understand that law school's a three-year program and the entering class at Yale is about a 175 people, so that gives you a sense of the size of these classes. I also teach various seminars that will be smaller -- 10, 15, sometimes 25 or 30 people.

CARTER: The first semester, no. In the introductory courses like the contracts class, they're stuck with me. In intellectual property where I tend to get big enrollments, sure the students have a choice, although I think that a lot of students take the course maybe because they want to practice real law and Yale's famous for its courses that maybe aren't that helpful, shall we say, to practice. There aren't that many courses that deal with subjects that practitioners might be interested in. That might also be a reason I get big enrollments in my classes like intellectual property.

CARTER: Not the best. I think there's a set of law schools that are very, very good. It's not that. Yale's harder to get into than Harvard. That's all. Yale's class is one-third the size of Harvard's. I'm not making any comparative judgments about the quality of the lawyers that they turn out or the quality of the faculty. But Harvard admits something between 500 and 600 students a year; Yale has about 165 to 175. The great majority of people who get into Yale Law School also get into Harvard Law School. The great majority of people who get into Harvard Law School don't get into Yale Law School. That's not a comparison between the two schools. That just has to do with the size of the student bodies.

CARTER: Well, I had an experience with Harvard that was at the time something of considerable bitterness to me, although in retrospect I've seen that it shouldn't have been. When I was a senior at Stanford, full of my arrogance, full of my love of standardized tests, I naturally assumed -- don't even think about affirmative action -- I naturally assumed that I would get into law school everywhere that I applied. That was just the kind of assumption I've always made through life. Well, it didn't quite turn out that way. I got into law school everywhere I applied except Harvard. I got a letter of rejection from Harvard, and then I got these telephone calls from a couple of school officials and also from a professor. What they said has always been to me quite telling. They said that a letter of rejection had been sent out, but that was an error, and they said that they had uncovered additional information, they said somewhat coyly, that should have been accounted in my favor. Then subsequently they said that information was that I was black.

I said something like -- this part actually isn't in the book -- I said something like, "Why didn't you know I was black? After all, there was a comment in there that I was a member of black pre-law society," because that was on my application. They said, "Well, we assumed from your record that you were white." Those words have always burned in mind. There were a kind of stunning reminder of what was expected of me. What they were saying by saying "we assumed from your record that you were white" was that in their view, my record was too good to have been compiled by a black undergraduate, to have that record I must have been white, but not quite good enough for a white Harvard law student. You follow the interesting complexity of the problem?

Now, let me say that at the time that left me quite bitter. I talk about that bitterness in the book. I went off to Yale in part because of that episode. But if you think about it, if you believe as I do that it's very important to open higher educational opportunities to people who are not white, that it's important to integrate higher education by giving people a chance to show what they can do, although Harvard did it awkwardly and maybe even tactlessly, they did perhaps what they should have done; that is, what they were saying, if you really think about it, is that because I was black, they were willing to give me a shot at showing what I could do. That kind of giving people a shot, giving them a little leg up is something that I support as long as it's combined with a sense that once one's foot is in the door, one is going to be treated just like everybody else and have to stand or fall on the same criteria as everybody else. Now, I know a lot of people say that sort of thing is unfair. You know, if I got that leg up, somebody else was, in effect, given a leg down. I certainly understand the motivation of that argument, and I understand the pain that lies behind it. There's no real way to answer it. There's no way to say no one else is excluded except to go out, given this opportunity, and to achieve at a level so that at least if a critic says there's some person who was excluded who should have been there instead, I can at least say, "But do you really believe they would have done as much with the opportunity as I have?"

My advice generally to people who are criticized by doubters because they've benefited from affirmative action programs is to go out there and achieve in a way that just leaves the doubters with no argument to make, at least no argument about you shouldn't have been there. I should add that I think some of that is fueled by exactly the kind of doubts that I faced in junior high school and high school. Back then I faced a lot of white students and some white teachers who thought I didn't belong in an honors section and couldn't believe perhaps that I was doing as well as I was. I think that that kind of doubt, even back then, fueled in me what I think I described in the book as the metaphorical desire to smash their racist faces in -- not hitting anybody, but in the sense of making myself too good for them to ignore. I knew a lot of people would ignore me anyway. That's not the point. The point is that's what it fired in me, that's what it fueled in me.

My reaction to affirmative action, I think, is fired by much the same thing. There are white people who will say if you've had a leg up because of affirmative action, someone -- as they like to put it -- who's more qualified has been turned away. It seems to me, the only way of answering that is for me and people like me to set ourselves to achieve in a way that leaves people unable to say that someone else would have done better if that person had the shot instead.

CARTER: There was on the Harvard application form and I'm pretty sure -- it must be the case -- certainly today the law school data assembly service, which puts together the Law School Admission Test score, the LSAT score and other materials as well, asks if you'd like to be identified as black or whatever. They must have asked that. I don't have a concrete memory, but they must have. It must have been there. In a sense, the failure to note that I was black must have been an oversight of some kind.

CARTER: It's not against the law and, indeed, some federal regulations require employers in some situations to keep those records. I don't know the details of that. It's not really my field. But there are some situations in which employers are required to report the race of applicants as well as the race of those that they hire. So there's nothing illegal about inquiring into it. It is, of course, illegal to discriminate on that basis. One of the interesting questions then becomes, in the whole affirmative action debate, what counts as discrimination?

CARTER: You mean because he's black?

CARTER: I'd naturally be upset. My view about the kind of affirmative action for integration that I'm talking about is that once one reaches a point, especially in the professions which is what my book is about -- affirmative action and other problems in professional life -- once one has been through college, professional school, and maybe even had a leg up at the entry level to a job, there has to have a point, I think, when a beneficiary like myself is going to demand, "From here on in, I want to be treated like everybody else. I don't care about the leg up that I had. I want to be judged on my performance." I think that's a perfectly legitimate view, and I think it's the right view to have. So I recognize -- I'm not naive about this -- that the book I've written has had a lot of publicity because it's written by a person who's black. But I'd like to think that the level of ideas, that people will engage with them not because this a black person saying this, but because this is an interesting or a not interesting or right or wrong or good or bad idea. That's what interests me.

CARTER: I didn't assume that you did.

CARTER: That hasn't been my experience, no. We're in the middle of a national debate about a lot of these issues, and there's a sort of straightforward set of questions that just about everybody asks, black or white. I haven't found much difference. Now, I have found some difference sometimes when I'm on a telephone call-in show. Some of the people who call up identify themselves, "I'm black" or "I'm white." Then I find some differences in the callers. But the interviewers I don't see a particular difference.

That's an important point to me because some people would prefer to defend affirmative action not on the ground that I defend it, that you're going to have a leg up and give people the opportunity to show what they can do. Some people prefer to defend it on the ground that what you're trying to do is bring a diversity of viewpoints into the corridors of power, that if you have a black person who has a particular job like a job as an interviewer, you will get a different viewpoint than if you have a white person. Well, I'm the first person who will concede that black people and white people are different and that experience of growing up in America marks black people and white people in different ways. But I don't think that the result is something that's predictable.

The trouble is that if one wants to defend affirmative action by saying that what we want to do is have a diversity of voices, then what do you do if you have a black person who gets a shot, who gets a chance because of this desire to have this viewpoint diversity and then ends up, say, as a journalist or as a commentator talking exactly the way that his white predecessor did? Then I think you'd find a lot of people who would say, "This is the wrong kind of black person. This person is not bringing any diversity." I would say in response that the question about diversity may be a useful question, but it's not a question about race. One might want to say it's useful to have commentators for a variety of perspectives, but race doesn't dictate perspective. There may be people who are black and people who are white, both of them have a broad range of things, a broad range of positions. So if you want to get intellectual diversity in any field, the way to do that has nothing to do with race. It has to do with searching for people with diverse views.

CARTER: "Think about it" is a funny word. Let me say this, when it crystallized, when I knew that some of the questions that I had and some of the thoughts that I had were going to jell into a book I would say was sometime about two years ago. I think that what made me decide it was going to jell into a book was the kind of sense I described at the outset of the show about the direction our national conversation about these issues was taking and, within that, a sense that more and more people -- black people especially -- were fleeing from the affirmative action label. When I was in law school, the term "affirmative action baby" was a pejorative. If somebody said that, that was a demeaning, belittling thing. What I try to do in this book is to reverse that, to invert it, to embrace that instead of rejecting it, to say in effect, "Look, I know I've been a beneficiary of affirmative action. It shouldn't matter. So what?" That's what I mean when I call the first chapter "Racial Preferences? So What?" The right answer if one is going to support the programs is to say, "I am not insulted if somebody thinks that I got extra help because of affirmative action. Don't worry about how I got here; worry about how I'm doing."

CARTER: Better than average grades, but not as good as my test scores. I would say that my grades were about the same as high school, but in high school my grade point average was like an A-minus average -- by no means a straight-A average. I think my average was around the same at Stanford.

CARTER: Very well. Let me say this . . .

CARTER: Well, I didn't get into Harvard. That's the thing. Of course I did well. But my point is that I assume that a school's not going to waste its educational resources. Anyone who's given a kind of leg up I would hope is going to be someone who did well. The question is going to be how well did they do, of course. You're not talking about programs that are going to admit people to school who are incompetent. You're talking about programs, I hope, where schools will take a sensitive look at their application pool to see whether there are people -- and some of them will be white -- who may not have exactly the same paper record that some other applicants do, but who nevertheless show good signs of being able to take advantage of what the school offers because, you know, that's teaching, too, that is taking risks sometimes and admitting people who might not have otherwise have a shot at a place like Harvard or Yale and many people who might not otherwise have a chance to show what they can do. That also involves the teaching enterprise, which is what we're supposed to be about.

CARTER: The score you mean?

CARTER: Yes.

CARTER: Not that I know of. The LSAT is what's described as an objective test, and objective means only that there is a correct or an incorrect answer to every question. It's a multiple choice test, and at that time the grade was based entirely on multiple choice. I've always done well on tests like that all my life.

CARTER: I was very proud of my grades at Yale Law School. Let me just say that. I think I did well.

CARTER: Yes. That's called blind grading and a lot of schools do that. Yale doesn't always do that. It's an option with the professor. The professor can do blind grading if he or she wants to; otherwise not. I couldn't tell you how many of my courses were blind-graded. Some were and some were not. So if the question is did some of the people grading me know who I was or that I was black, my answer is yes. But the point that they knew who I was is an interesting point that I want to mention. Again, in law school I was the kind of kid who always had my hand up. I was the one who talked to the professor after class, arguing. That's what law professors like. They love to be argued with.

I think that one of the reasons that I always blind-grade exams is because there's always the danger of playing favorites. I call this the star system. The professors early on decide that there are people they really like, who are really smart -- when they say they're really smart what they mean is they really like them -- and they are usually the kids who talk a lot in class and come up after class and come by the professor's office and do all those things, and those are all the things that I did. I think people who do those things have another kind of leg up, and that leg up I describe in the book as the star system. The star system is the system under which many, many elite institutions of various kinds, many, many elite employees of various kinds, rely on a narrow pipeline of a small set of recommenders from a small set of schools, and that's where they select their students, their law clerks, their employees, what have you. The easiest way to advance in the legal profession is to get into the star system, but you've got to get in early. You've got to get in when you're in law school. If you don't get in when you're in law school, you're not going to get in. When I think about things like the glass ceiling that's often described at various corporations . . .

CARTER: The glass ceiling, as it's described, is the problem that many middle managers in corporations who are black or who are women, for example, have described -- that you can get in, you can do a good job, but there's a point beyond which you don't rise. Some people say that's because of racism. Some people say it's because of sexism, it's because of a lot of other things. Whatever may be all the complex causes, I think one of the villains of the piece is the star system. It has always been harder and is still harder for black students, for example, to get into the star system early in school or early at the entry level of their firms than for other people to do it. That's not necessarily because of racism. That's largely because I think a lot of the people who are in positions to bring people through the star system, to mentor people, are more comfortable with people much like themselves. That's a kind of discomfort, I think, that has to be overcome. I think it's very important to aggressively work to fight that.

CARTER: Oh, I know what happened. It's actually a kind of interesting story, at least interesting to me. What happened to the book was I became interested in the subject, as I said, in 1989. At about that time, I got interested in some other events that led me to write an op-ed piece in the Wall Street Journal that described exactly what I just described to you -- the story about my admission to Harvard and Yale. A few days later I got a phone call from an editor at a major publishing house in New York, who said, "That was a very interesting op-ed piece. Do you want to write a book about it? I said, "That's a kind of interesting idea." So we talked about it a little bit, and we corresponded a little bit over the next few weeks. Then my father said, "Stephen, you are not going to sell a book without an agent." So I said, "OK." Through a series of connections, I ended up with an agent who found the book interesting and that was how it ended up going on the market. It did not end up with the publishing house that first expressed interest in it.

CARTER: A little bit, yes. The publishing industry is not an industry where one worries about those things, I realize, but I've always felt loyalty and things like that were very important, so, yes, I did feel a little bad about that.

CARTER: Because my father loves me and he wants the best for me. I think his view was that when you sell a book, you negotiate a deal and that I couldn't do it myself and someone -- an agent or at least a lawyer -- should be doing that for me. He kept reminding me, "A man who is a lawyer in his own case has a fool for a client."

CARTER: The title I always had. The title was always in the back of my mind. The title has never changed. There was a lot of talk with the publisher about the shape it would take, and, indeed, when I talked to the various publishers, that was one of my big concerns -- what direction they thought the book should go. I should explain that although the title may suggest the book is just about affirmative action, most of the book is not. Most of the book is on other topics, and in some ways it's the other topics that I am as passionate about, if not more passionate about.

The second part of the book, for example, is about my deep concern that the black community, especially the intellectual community, has become so divided on these points, on affirmative action and other aspects of racial justice. There's a lot of name calling and back-biting going back and forth. I'm terribly concerned when I see that black people who dissent from various aspects of the civil rights tradition are called Uncle Toms or traitors. I'm equally concerned when I see some of those dissenters turning around and calling the civil rights leaders the same names or saying, as one person did, that the civil rights leaders only like programs that give them money or get whitey and things like that. I think this kind of raucous argument back and forth is not productive. I think that there are a lot of good ideas on both sides, and we need dialogue about those issues. That's what I'm trying to promote in the second part of the book.

CARTER: There have been a lot of reviews. So far, I'm relieved to say, they've been more favorable than unfavorable, but there have been some unfavorable reviews as well. Whether it's sparking dialogue I think remains to be seen. I will confess that I've been a little bit uneasy about how a lot of black people will react to the book and about how a lot of white people will react to it in two different ways. Like if somehow black people would react to it is that there's a perception -- I think a correct perception -- that many of the gains of the civil rights movement are now under attack. I think many people have the view that even though in other circumstances it might be appropriate to have discussions about these things, that if black people at this moment in time dissent even on small points or even raise questions or criticisms, those will be misused and that's very dangerous.

So one of my concerns was whether black people would kind of accept the invitation to dialogue that I'm suggesting, would be willing to talk about some of the complexities and difficulties of affirmative action that I want to talk about. At the same time, I have the same concern that a lot of other people do; that is, I have the concern that there will be white people who will use my book as a way of promoting various causes. But you can't worry too much about that because if you write, your writing is out there and people will do with it what they want to do.

My view is that one of the purposes of the civil rights movement in opening up opportunities for those of us who are black to train our minds at some of America's best institutions was to train us to think for ourselves and go our own way. That's what I'm trying to do. This book is in no sense a rebellion or a protest against the civil rights movement, which is a movement I lovingly embrace. I'm simply trying to raise some questions about some aspects of affirmative action and to prod us all toward dialogue.

CARTER: Well, you have to ask my students. As I said, I get pretty good enrollments. The thing for me that makes teaching fun is not just lecturing and listening to the students answer questions because most people in Yale can do that and most of them do it well. It's answering a question when a student is genuinely confused. When a student doesn't understand a point or isn't getting it, and I can suddenly see the light go on in his or her eyes -- "I've got it now; I understand -- that's marvelous. The other thing I love about my students is the interchange with them. The students at Yale are so bright and so ambitious and not afraid at all to talk back, and I learn a lot from the interchanges. I probably learn as much as my students do. I might teach them the law and teach them about the law, but they teach me about a lot of other things at the same time.

CARTER: I clerked for Justice Marshall in the 1980 term, which means I was there from roughly the summer of 1980 to the mid-summer of 1981 -- one year. I thought Justice Marshall was just a marvelous, marvelous man, a man of tremendous and important experience, which he loved to share with his law clerks in tales about the civil rights movement and about his days in the Johnson administration. That was always a thoroughly enjoyable aspect of the job. He was a wonderful teacher. He was a man of very deep moral commitments, but also in my mind a man of a deep and abiding sense of respect for the ideal of the rule of law. I think that respect was exemplified long before his service on the Supreme Court back in the 1950s when he was litigating Brown vs. Board of Education. You ought to think about the era for a minute. Segregation was the law of the land. The Supreme Court had nine justices or as we would say today "nine white males," not a single one of whom had been appointed to the court because somebody said we need somebody there to break up segregation. Nobody asked these judges in their confirmation processes, "Are you in favor of or against racial segregation?" That wasn't the issue. So they were all there without any prior judicial commitments on this issue.

There were many black people who thought the only route to racial justice in America was direct action, protest. But Thurgood Marshall and those around him deeply believed in the tools of law, that using those tools, you could make a persuasive legal argument that segregation was unconstitutional. I think that that faith that could be done in that era required an enormous faith, not only in the rule of law, but in the capacity of judges to listen to reasoned argument, to listen to both sides and then be persuaded by the side that had the better argument. That is an ideal of judging I think has been lost in our current era.

CARTER: I think the moment that perhaps is the strongest memory for me is one that I've actually written about once before, the morning after the 1980 election when Ronald Reagan won by a landslide, which I've described as liberalism running into the stony brick wall of electoral distaste. I think that by that time, of course, everyone knew that Jimmy Carter was going to lose. What people didn't predict was that at the same time, the Republicans would gain control of the Senate. The morning after that election was a regular day at the court. The court was sitting to hear oral arguments. The justices were rushing down to the robing room and the law clerks, like myself, were on their way -- there's a little alcove in the hallway off the courtroom, a little marble alcove where the law clerks sit.

On my way out of the chambers right behind Justice Marshall, I saw Justice Brennan. Justice Brennan turned to his old friend Justice Marshall -- looking up at him because Justice Marshall was a very big man towering over Justice Brennan, who was very small -- and Justice Brennan said to Justice Marshall, "Is it really true that Strom Thurmond is going to be chairman of the Judiciary Committee?" Now, you have to realize that this Strom Thurmond for much of his career was a dedicated segregationist and had been a principal tormentor of Thurgood Marshall at his own confirmation hearings. Surely the ascendancy of Strom Thurmond represented to Thurgood Marshall all that he spent his life battling against. So Justice Marshall put his arm around Justice Brennan's shoulders, and off they walked, as I think it, to do battle against the new order. So the old order passed away, as it always must, and maybe it was time. Some people said that. But I think we'll never see their like again.

CARTER: Well, I'll most remember about the Supreme Court experience, I think, apart from that episode, which is burned in my memory, is that there was a real sobriety that came to me, I think, as a young lawyer. In law school, everything was easy. When I say easy, I mean there was always an answer. You could argue either side. It didn't matter. Nobody real was involved. It was all abstract. This goes back to what I said before about why law professors may not make good judges. Suddenly you're the highest court of the land. The decisions the court makes have a real impact and they cannot, except with great difficulty, be changed.

For me and I think for many of my fellow clerks, who thought this was going to be kind of a romp -- we were going to go up there and just do justice, make the right decision, make our justices do what we thought they should do -- it was suddenly very sobering. Because here were nine people who sat around and reasoned about very, very difficult questions in a way that most of us had never done before because in law school there is nothing at stake, and in the Supreme Court everything is at stake. That brought a kind of sobriety I think, that had been missing in our lives before and for me, I think, has always affected the way I've thought about judicial power and the role of the Supreme Court in American life since then.

CARTER: In March. The assessment of Clarence Thomas was written before I knew Justice Marshall was going to retire and before I knew that Clarence Thomas was going to be nominated. I wrote about Clarence Thomas's experience in his first confirmation hearings; that is, the confirmation hearings when he was being considered for the position he held at the time of his nomination, which was his position as a judge of the U.S. Court of Appeals for the D.C. circuit.

Clarence Thomas has always been an interesting figure to me because here's a black person who proudly proclaims himself a conservative, which very few black people are willing to do, and at the same time has expressed great concern about what I would describe as racist tendencies in the conservative movement -- at least that's the way he often seems to see it. Since the time that he was nominated to replace Thurgood Marshall, a lot of people have talked about a famous speech that he gave a few years ago to the Heritage Foundation, which is a think tank here in Washington that's often associated with conservative causes. People have looked through that speech for evidence of what kind of judge would he be and what are his views on this or that social policy issue. But most of that speech was actually dedicated to explaining the difficulties that he had as a black person who wanted to be embraced by the conservative movement, the difficulties he had getting the movement to embrace him, getting the movement to trust him, getting the movement to believe he was truly a conservative. Evidently, in his view, the conservative movement at the time -- and maybe now for all I know -- had a lot of trouble believing that a black person could be a real conservative, and that was a great concern of his.

CARTER: Do I like it? I think it's a wonderful story. I think that his model of overcoming a great deal is tremendously important. I wish sometimes that he would give a little more credit than he does to much of the civil rights struggle that helped him out with some of the opportunities that he had, but I think it's a marvelous story of achievement. I may not agree with all of Clarence Thomas's views on everything -- certainly not on affirmative action -- but I think he's a figure who is to be admired for what he's overcome.

CARTER: Yes. Gary Franks is someone who in some ways I actually know less about, but I write about Gary Franks because Gary Franks confronted this interesting problem when he was running for office. He was running for office as a black person and as a Republican and also as an outspoken and self-described conservative. One of the peculiar things that happened was that the New York Times in an editorial endorsing his white opponent described Franks as someone who wouldn't fit into the black congressional caucus. Now, I like the black congressional caucus. I think it's a wonderful group that does a lot of good work. But it's not at all clear to me why the decision on whether a black person is elected to Congress or not should turn on whether someone thinks that his views are going to be the same of the views of members of the black congressional caucus. It strikes me he was running on his own. He wasn't running as a member of a group. He wasn't running as "I'm black and, therefore, vote for me." He was running on his views, and I think he should have been treated in that way.

CARTER: There's a lot of dispute about where the term came from. The term actually appears in the Civil Rights Act of 1964, and it also appeared in the debates, although a lot of people argued about what it meant. I've recently seen some writing tracing the term affirmative action back to its common law origins in talking about the obligation of institutions to take certain steps, that a chancellor might order someone to do affirmative action to remedy some wrong or something like that. So it's a very old phrase in the law. I don't really know quite where it came from. In our modern style of thinking about it, I tend to date it from things like the speech that Lyndon Johnson gave at Howard in 1965 where he used his famous metaphor of a race.

If you have a race where one runner is in chains and the other runners get to go forward, he said, "If it's going to be a fair race, shouldn't you take the chains off and then move the runner who had been in chains up to where the other runners were?" The truth is the metaphor doesn't really work. If you think back to the Olympics -- I don't know what year it was -- when the two runners collided during one of the women's distance races. They both fell down. The one that fell down, what was unfair was that she was out of the race, but the rest of the runners kept on running. One of the things that I always urge people about affirmative action is this: If they offer it to you, take it, but don't settle for it. Keep on running, because the people are still going to be ahead a lot of time and one still has to catch up with them.

CARTER: I have a lot of heroes, although I also respect the view of John Ely, who wrote that you don't need a lot of heroes if you choose carefully. Thurgood Marshall was one of my great heroes before I ever went to law school as I began to learn about the civil rights movement. But even more so, I would say that Charles Hamilton Houston is a hero of mine. Charles Hamilton Houston was one of the great lawyers of the 20th century. He toiled more in obscurity for many years, but he was, during his time at Howard Law School, the chief architect of litigation strategy that led to the decision to overturn segregation in Brown vs. Board of Education. That was a heroic and often thankless task, and I think to me he's one of the great Americans ever.

CARTER: Harder to say. Harder to say, although I think it's perhaps because of when I came along. I still retain, despite all the unflattering things written about him, a great deal of respect for John Fitzgerald Kennedy. I couldn't tell exactly what it was. Perhaps it was because I was growing up at the time, but there was something about Kennedy as president, something about the hope he seemed to bring to people, and one sees it even now. As a historian, if you go back and read over the kinds of things people were saying about him, the kinds of things people were writing, he brought such optimism to the country, and I find that's something we desperately need to regain.

CARTER: Thank you.