The Dan Schneider Interview 15: Richard Thompson Ford (first posted 10/15/08)



DS: This DSI is with a writer and lawyer named Richard Thompson Ford. Thanks for agreeing to be interviewed. His most recent book is The Race Card: How Bluffing About Bias Makes Race Relations Worse, which I reviewed here. I want to delve into his opinions on a plenum of subjects- from the political and philosophic to the pop cultural and legal. For those readers to whom your book and your name are unfamiliar, could you please give a précis for the uninitiated, on who Richard Thompson Ford is: what you do, what your aims in your career are, major achievements, and your general philosophy, etc.


RTF:  I am a Professor of Law at Stanford Law School.  I write and teach about race relations, civil rights, legal theory, and urban issues, including housing, local government and the built environment (architecture and urban planning).  I started my career writing fairly specialized legal theory for an academic readership but now I’ve begun to write for a broader readership of interested laypeople—I write for Slate and have contributed to The Washington Post, Christian Science Monitor and San Francisco Chronicle.  My goal is to continue to contribute to scholarly and professional development in law and also to introduce non-academics and non-lawyers to some of the more important and interesting aspects of legal practice and legal theory.


DS: Before we delve into The Race Card, let me start from the beginning, and talk about Richard Thompson Ford, the man. Are you married? Is your wife a journalist, a lawyer, a professor, an artist? And how did you meet?


RTF:  I’m married.  My wife is a trademark attorney—basically she helps businesses make sure that other companies don’t use their names and corporate logos. We met in high school but weren’t romantically involved until we met up again many years later in San Francisco.  In high school I dated her best friends for about a week.


DS: Looking at your c.v., one can divine you were born in the mid-1960s, making you about my age, 43. That means you are an early Generation Xer, so to speak. You were born after the Civil Rights Movement, but where were you born, and to what extent did a black kid of your generation benefit from the earlier struggles with racism in America? Was your family upwardly mobile? Did you grow up in a relatively integrated area?


RTF: I’m 42 and I was born in upstate New York but grew up in the San Joaquin Valley of California.  I definitely benefited from the civil rights movement and earlier struggles against racism—“we all stand on the shoulders of giants” the old saying goes.  I wouldn’t say my neighborhood was integrated except to the extent my family integrated it—it was a white neighborhood with one black family when we moved in.  Over time it became more integrated, mainly by Asian and Latino families—I think there were three black families in my immediate neighborhood total when I graduated from high school. 


DS: What were some of the cultural touchstones in your life, the things, events, or people who graced your existence with those ‘I remember exactly where I was’ moments? When did you gain a fascination for things legalistic?


RTF:  I remember that my father loved to watch The Dukes Of Hazzard and especially howled with laughter when the General Lee would come on with that horn that played “Dixie”—he somehow experienced it as arch parody, even though it’s not clear that’s how it was intended.  I thought that was a real gift and one I’ve tried to emulate.  I got interested in law in college at Stanford where I took a fantastic undergraduate course on civil rights.  Happily I ran into my old professor over the summer and I’m going to give a few guest lectures in that same class this coming year.


DS: What did you want to be when you grew up- a baseball player, a scientist, a general? Who were your childhood heroes and why? Where did you go to high school, and to what college?


RTF: I went to Roosevelt and Hoover High Schools in Fresno California and Stanford University for my Bachelor’s. 


DS: What sort of child were you- a loner or center of attention? Did you get good grades? Were you a mama’s boy, a nerd, or a rebel?


RTF: Actually I always had a small and tight group of friends, or a couple such groups--but I didn’t have much use for most of student body, nor they for me.  I suppose “rebel” is the closest description but I’m hesitant to use it because it sounds a little bit self aggrandizing—too much like “maverick”:  I wrote a few articles in the student paper that made the principal of the school call me into her office and threaten to pull the paper.  The local paper—The Fresno Bee—came to our defense in the name of freedom of the press (hey, maybe this is where I got my first taste of the law…) and I got to keep putting a thumb in the eye of the administration until I graduated.  I suppose that’s rebellion of a sort, but I wasn’t exactly James Dean. 


DS: Any siblings? What paths in life have they followed?


RTF: One sister.  She’s a professor of Literature at Medgar Evars College, CUNY.


DS: Any children? What paths have they followed in life? What are their interests and careers? Are any of them writers?


RTF: I have a four year old son, Cole and a five month old daughter Eloise (Ella).  Cole’s a writer of sorts—so far he can spell “No”, “Stop”, “Cole Ford” and “San Francisco”


DS: What of your parents? What were their professions? Did they encourage your pursuit of law?


RTF:  My father was Dean of the School of Health and Social Work at Cal State Fresno for over twenty years.  My mother worked as a librarian and before that, at the IRS in Fresno.  They were happy enough about my decision to go to law school, although my father probably would have preferred that I go into academia (which, of course, I did, eventually). 


DS: What was your youth like, both at home and in terms of socializing with other children?


RTF:  Pretty typical middle class upbringing I suppose: my parents were more strict than most in my neighborhood but not extremely so.  I had my share of friends in school—I wasn’t part of the in crowd for the most part, but I was not a loner either. 


DS: Do you consider yourself a social or cultural critic, now, having penned The Race Card? If so, what further aims or obsessions will you pursue in later books?


RTF:  I’d like to write more about the current malaise in race relations, the debasement of the civil rights movement by people like Louis Farrakhan and Al Sharpton, and about the relationship between law and popular ethics and morality.  I currently working on a book about the successes and failures of the civil rights movement and its affect on American popular and legal culture. 


DS: What are your views on religion? What links do you see between mythos and religion? Is myth merely expired religion, and religion myth alive? Do you see religion spawning from the same human wellspring as art? What connections do you see between modern American law and ancient ideals like the Ten Commandments or Hammurabi’s Code?


RTF:  My father was an ordained Presbyterian Minister, but in fact his beliefs were much closer to the Unitarian Church than it was to much of orthodox Presbyterian theology as I understand it (for instance, he had no use for Calvinist doctrines such as predestination and he believed that non-Christian faiths are equally valid as Christianity—each simply an alternative path to spiritual enlightenment).   My own views are more skeptical and conflicted—I think spirituality of some sort is important, but my growing conviction is that it can be found in great art and literature or in the wonders of science and nature more readily and more authentically than in the supernatural.  In a sense, the natural world is revealed as more “supernatural” with each passing year—consider new developments in physics: dark matter, string theory, extra dimensions beyond the edge of the universe. 

  I think many of the moral teachings of the worlds great religions are invaluable, and some are reflected in the law today (for instance, the Golden Rule is reflected in the common law doctrine of “unclean hands” and “he who seeks equity must do equity”).  But at the same time there isn’t a major religion whose teachings aren’t also shot through with bigotry and chauvinism, rank superstition, and pathological repression.  I see no warrant for describing the “good” parts as the true nature of religion and the bigotry, chauvinism and repression as accidents or inessential.


DS: Are there any major areas of law, civil or otherwise, that you think have been wrongheaded, since the earliest times they were imposed? What are they and why?


RTF:  Well, I suppose the laws that established and maintained slavery, denied the vote to women, propped up aristocracies, etc.  These were major areas of law at one time.


DS: Do you belong to any political party, and what are your views on such current politicized matters as euthanasia, abortion, gay marriage, and stem cell research?


RTF:  I’m a registered Democrat, although I wouldn’t let that stop me from voting for someone from another party if I thought he or she were the better candidate.  I have a pretty thick libertarian streak, so I think euthanasia and abortion are none of government’s business, although I certainly understand why people have strong objections to them.  But no good can come of it when government gets involved in these highly contestable questions—the Terri Schiavo mess for instance, was an appalling spectacle that most likely put a sincerely grieving husband through even more hell so that politicians, zealots and professional blowhards could posture (I lost the last ounce of respect I had for the once serious and noble Jesse Jackson when he turned up to chase cameras at Schiavo’s death bed).


DS: Ok, let’s dig into your latest book, The Race Card: How Bluffing About Bias Makes Race Relations Worse. What prompted its writing? And how long did it take to write?


RTF:  I took me about two years to write the book.  My growing frustration and dismay at the state of public conversation about racial issues prompted me to write the book and it’s specific arguments are informed by my study of anti discrimination law, which, at its best, wastes little time with the question that seems to dominate discussions of race in the media—whether someone is or is not a bigot—and instead evaluates specific practices based on their consequences. 


DS: Can you give the readers a one or two paragraph précis of its content, argument, and conclusions?


RTF:  My argument is that because racism—a state of mind—is very hard to prove or disprove, some people are able to claim that racism is play when it really isn’t—in other words to play the race card.  This tactically use of the claim of bigotry has led to an increasingly cynicism about all civil rights claims, bred distrust and resentment between the races and made race relations worse.  And it’s not just racial minorities who “play the card’—white play it too, claiming “reverse racism” to oppose affirmative action.  In short, the moral capital of the civil rights movement is being squandered by opportunists and charlatans of all races and ideological convictions. 

  Why?  Since the civil rights movement, racism has become not only illegal but also socially taboo. When bigotry was openly tolerated people often announced or did nothing to conceal it.  So many of the earliest struggles for civil rights aimed at some conspicuous targets: Jim Crow laws, blatantly discriminatory practices, out and out race-based exclusion.  But today most people try to hide their prejudices.  As a result, a lot of time and energy must be spent just trying to determine whether bigotry is in play or not.  Everyone involved—accuser and accused alike—has an incentive to lie, dissemble, downplay or exaggerate. 

  Very few people are avowed racists anymore.  But racial inequities and injustices persist—blacks are more socially isolated and as a group much poorer than whites.  So it’s plausible for people to claim that hidden bigotry underlies a social dispute.  But sometime people jump to conclusions that aren’t warranted; sometime they blame innocent people for real injustices that are the result of more impersonal forces and some people just cynically use the accusation of racism for personal advantage (think of O.J Simpson’s lawyer’s claim that he was the victim of a racist conspiracy or Clarence Thomas’s claim that he was the victim of a “high tech lynching”).


DS: Ok, on to some specific and general queries regarding the book and your views. I’ll try to go in a roughly chronological order, since much of the book follows in a logical dialectic progression, and as each point is made and supported, another girder is put into place. Yet, there is emotional content in the book, as well as an intellectual one. The whole tenor of your book seems to be one of revulsion towards racebaiters like Al Sharpton (whom you earlier mentioned) and Cornel West (who, to me, often makes good points, then turns around and sounds like a slimmer Sharpton admixed with a dose of Joseph Campbellian Academic charlatanry). Just where on the spectrum of race users do you place such men- above, below, on a par with supremacists, Neo-Nazis, The Bell Curve enthusiasts, etc.?


RTF:  I’d like to first distinguish Cornel West, who I think is a generally thoughtful scholar who is sometime caught up in reflexive posturing, from someone like Sharpton, whose typical mode of race bating, demagoguery and posturing and who occasionally stumbles onto a valid claim (a stopped clock is right twice a day: if you always cry racism, you’ll be right occasionally just by the law of probability.)


DS: The book’s title first gained national prominence during the O.J. Simpson murder trial. What exactly is the race card, as you define it? And, are race carders really quislings to their race, or merely to decency?


RTF:  “Playing the race card” is making an accusation of racism that isn’t warranted.  But in the book IU also deal with more ambiguous cases, where it’s either unclear whether racism is in play or not, or where there’s a real injustice, but no racist to blame for it (I call this “Racism Without Racists” and cite ther aftermath of Katrina as an example)—the racial imbalance was due to neighborhood segregation, isolation and poverty, which are the result of racist law of the past—but not racism today.  So there is racism, but it’s wrong to claim that the reason for the racial inequity is that FEMA discriminated on the basis of race or George Bush doesn’t care about black people.


DS: The book opens by taking on the most famous racial hoax in American history, and the one which brought the aforementioned Sharpton to national infamy. Other than the obvious- providing a convenient Boy Who Cried Wolf straw man to racism deniers, what longer term effects did the Brawley Hoax have on race relations in America?


RTF:  I think it led a lot of decent people to question civil rights activism.  After the Brawley incident, people had to stop and ask whether a civil rights cause targeted a real instance of bigotry, or a trumped up claim perpetuated by professional complainers. 


DS: Do you think the ghost of the Brawley Hoax influenced what happened during the Duke Rape Case Hoax? And what do you think of how that played out, with the disgrace afforded to the former DA who brought the case to notoriety?


RTF:  I do think that this DA did not want to seen as racially insensitive or willing to go easy on rich white boys from Duke.  And, ironically, I also think he felt nailing some rich white boys who victimized a poor black woman would shore up his bona fides as a prosecutor with integrity.  Finally, it’s worth noting that many DA’s are overzealous, especially when dealing with high profile cases, and that DA’s have a lot of discretion in how they handle cases.  We really rely, to a greater extent than most people realize, on DAs to use good judgment in brining charges and to act in the interests of justice rather than in the interest of securing convictions.  And too many DAs don’t live up to their obligations in this respect.  The danger of prosecutorial overzealousness is the real lesson of the Duke Rape case (incidentally, it’s the real lesson of the Jena 6 prosecution as well, which Al Sharpton and others made into a case about racism based on relatively little evidence).


DS: You also reference the Clarence Thomas confirmation hearings. What are your feelings regarding that case, and do you have a divided opinion of it, on personal, professional, and political levels? Was it a just comeuppance for the Left Wing for their practice of ‘Borking’ Right Wing nominees?


RTF:  I think the Left got outflanked in the race wars.  They had gotten very good at suggesting that racism was almost always a risk when anyone evaluated a black person and so they were hard pressed to refute the implication that opposition to Thomas was racist.  The idea that we can presume bias and bad intent boomeranged and hit the left right between the eyes.  And watch the same boomerang crack the skulls of liberals again with the Sarah Palin candidacy: now you can’t point out the obvious fact that this particular woman is not qualified to be Vice President of the United States without being accused of sexism. 


DS: What are your views on the Supreme Court, overall and currently? I’ve often wondered if bifurcating the Supreme Court might not be a good idea. We could have a Civil Supreme Court, which would do what the Court currently does- reviews precedents and issues opinions, and we could have a Criminal Supreme Court. This portion of the Court would deal strictly with capital cases. Anyone convicted of murder, treason, and even rape or pedophilia (in some states capital crimes), would immediately have their cases sent to the Criminal Supreme Court, rather than wasting years on appeals through level upon level of intermediate courts. Since the Criminal Supreme Court would deal solely with such cases, they would be expert on the ‘little details’ could demand DNA reviews quickly, and the whole process would be quicker and fairer (theoretically, of course). What do you think of an idea like that?


RTF: I think classic Federalism is the answer here: with very limited exceptions, there should be no federal criminal law—criminal law should be the province of the states (I think this is especially true in the case of the huge expansion of the federal government into drug crimes that occurred under Presidents Bush and Clinton: the federal courts have no business adjudicating common crimes—that’s the role of the states and it should be returned to them). The Supreme Court should stay out of this for the most part: I do think the Court has a role to play in prohibiting cruel and unusual punishment and of course whether and when the death penalty is cruel and unusual and is a hotly contested issue.  But the states are entitled to have their own judicial processes and for the most part, the appeals should end with the highest state court.  In fact, most of the cumbersome appeals process occurs in state courts anyway, and most of the time, the appeals don’t involve claims of innocence, instead they involve procedural complaints and fine points of law to determine whether the crime is in fact a capital crime (for instance, in many states murder is a capital offense only if it’s “aggravated”—somehow especially vicious or depraved.)


DS: What are your views on Strict Constructionism and Constitutional Originalism? Are they not rather silly notions since the Constitution is written very vaguely, for a reason, and all law is, in one form or another, social engineering?


RTF: I don’t think either of these Constitutional theories makes much sense—but for different reasons.  Strict Construction or Textualism doesn’t make sense as a interpretative theory of anything: there is no plain meaning of a text that doesn’t refer in some way to things outside the text.  If you want to understand a text, you always and immediately interpret it in light of context—who’s the author? When was it written? Was it an attempt to intervene in some specific controversy? Who was it written to persuade, etc.? No one could seriously try to understand the Constitution without thinking about the relationship between the colonies and Mother England, debates between Federalists and Anti-Federalists and the like.  Texts don’t have meanings without context and they cannot be “strictly construed.”

  Originalism is somewhat more compelling, and for precisely the reasons textualism is silly.  When we interpret a text, one of the first things we do is try to figure out what the person who wrote it meant to convey. So trying Constitutional interpretation to the original intent of the framers not only makes sense—it’s almost impossible to imagine taking the Constitution seriously without considering original intent.  If we don’t care about what the authors of the Constitution thought, why would we care about the Constitution?  But the question is whether we stop there.  We may well decide that the framer’s intent should guide us by providing big and general principles, but we’re entitled to apply those principles to contemporary facts in ways the framers couldn’t have anticipated.  So we might, for instance, think that the framers cared about religious freedom and freedom from religion and decide that this means religious arguments against contraception and abortion shouldn’t be allowed to drive public policy and criminal law, even if we also are pretty sure most of the framers would have opposed contraception and abortion had these practices been around when the framers were alive.


DS: An interesting last point, although, I must add that while contraception- in the modern sense, is only a half century or so old, there were plenty of abortions in the country, and very few jurisdictions, to my knowledge, outlawed it. What are your opinions of the litmus test used by Republicans over the last few decades in obvious attempts to overturn opinions on issues like the death penalty, abortion, etc.?


RTF:  I oppose these types of litmus tests—they undermine the integrity of the courts and ultimately the rule of law.  Of course it’s inevitable that politics will influence the selection of judges to some extent.  But applying a litmus test that involves the judges’ position on a specific case that the court is likely to hear in the future denies litigants a fair hearing and destroys the impartiality that is the sine qua non of legal justice. 


DS: I recently watched a biography of President Franklin Delano Roosevelt, and you certainly know of the opprobrium he received for trying to expand the Supreme Court (not in the bifurcative method I mention), and then pack it with liberal leaning judges. Yet, wrong as he was, the 1930s were an era of an even more politically polarized Supreme Court, and the wanton rulings that invalidated much of the New Deal was clearly not motivated by judicial reason. Do you think that the U.S. Constitution is too vaguely written, even though this is often cited as a strength that ‘Strict Constructionists’ and ‘Originalists’ simply miss?


RTF: I don’t think the Constitution is too vaguely written; I think its strength as an enduring political document is its generality—that’s why we can still respect it today.  Had it reflected the specific preferences of the founder, we would have found it intolerable long ago.  But I think we Americans—and especially lawyers—put too much stock in Constitutional interpretation.  There may be rare moments when the Constitution, as interpreted by courts, does something profound but for the most part courts follow and the people lead and that’s as it should be.  And you’re right to suggest that the vagueness of the Constitution makes strict construction impossible and originalism undesirable. 


DS: Back to the Clarence Thomas hearings; you mention the bit of political wrangling employed by conservatives who nominated a black man with Right Wing views. Manifestly, Thomas was not qualified, and his years on the bench have shown him to be a rather callow thinker, seemingly willing to shadow the opinions of the stolid Antonin Scalia. What are your views of both men as jurists? And you then mention the sort of vengeance the Left applied, by bringing forward Anita Hill and her claims of Thomas as a sexual deviant. First, do you think she was telling the truth. Second, even if so, was it wise to so blatantly reveal Thomas as a stereotypical ‘lusty coon’? Third, did not Hill’s accusations have a boomerang effect? I mean, if Thomas was such a sociopath, why the hell did she gleefully pursue him, at least professionally?


RTF:  I think Hill was probably telling the truth in terms of the specific allegations—I think Thomas probably did what she accused him of doing.  I’m less certain that she was devastated or debilitated by it or that she felt that it to rose to the level of harassment at the time.  I suspect it was annoying and at times unwelcome, but perhaps no more so than a lot of things people put up with on the job.  She obviously didn’t see the need to complain or come forward with her allegations until long after the fact—this suggests that she decided on balance that her professional relationship with Thomas was more important than whatever insult she felt over his crude sexual comments.  I don’t think Hill thought Thomas was a sociopath or sexual predator—I think she may have found his comments inappropriate but on the whole, not that a big a deal. 


DS: You mention a bevy of celebrities in your book, but let me ask you of the comedian Bill Cosby, and his recent ‘crusade,’ if you will, against hip hop. Is he just an out of touch old man, or a pompous one? I recall, years ago, when his show was a hit, and he appeared on the old Phil Donahue talk show, Cosby railed against the character Archie Bunker, from All In The Family, stating that that show and character were not positives on the cultural landscape, because the bigoted Bunker never apologized for his views. Yet, that was the very point of the show, and the nub of why bigotry is so vexing a problem. And Cosby simply could not wrap his mind around that fact. So, while a celebrity; he’s just a comedian, not some great thinker, so why is he given such accord?


RTF: I think Cosby symbolizes the promise of integration for a lot of people—he was one of the first black actors to consistently promote a positive image for blacks and hold his own in integrated settings without shucking and jiving—he’s much like Sidney Poitier in this respect.  I think Cosby makes some valid points about the destructive influence of some hip hop culture—we shouldn’t paint with too broad a brush here because hip-hop is quite varied—but some of it really does simply reinforce horrible racial stereotypes that no one would hesitate to condemn as racist if a white person advanced them. 


DS: I started these interviews because so many interviews, online and in print, are atrocious. They are merely vehicles designed to pimp a book or other product- film, CD, etc. One of the things I’ve tried to do with these interviews is avoid the canned sort of responses that most interviews- print or videotaped, indulge in, yet most people find comfort in hearing the expected. Why are the readers and the interviews so banal? Where have all the great interviewers like a Phil Donahue, Dick Cavett, David Susskind, or Bill Buckley gone? Only Charlie Rose, on PBS, is left.


RTF: I think the attention span of the average reader has shrunk and fewer people are the well read generalists that these interviewers rely on for their audience.  That’s not to say that people are not as smart, but that they are more narrow and specialized in their knowledge and so there’s less of a broad common ground of educated lay opinion on which to build a good in depth interview for a general audience. 


DS: On a technical note, I noticed that, in the text, you go back and forth between using the pronouns he and she when describing individuals at large. Is this a bit of PC that has crept into your own mindset? Why the post-sexist usage? It seems a bit silly, as silly as those people who rail against the specific and nonsexual use of the term Man (and Mankind), then claim Humanity is better, while not realizing it’s simply the Old French for Man. So, did you do it to make a point in the book, or is this just leftover PC from the Academic environment?


RTF: I suppose I must plead guilty to a bit of residual PC here.  I struggle with the question of the gendered pronoun--- I hate neologisms like s/he or he/she so I just toggle back and forth making the abstract person male sometimes and female other times.  But it wouldn’t take a lot to convince me to just go back to universal “he.”


DS: Briefly, can you give the four main reasons you see people playing the race card, as outlined in your book? And, although you do not list them in transgressive order, which is the most noxious, in your estimation?


RTF: The worst is clearly when someone plays the race card for personal gain:  O.J. Simpson and his attorney’s to beat the murder rap; Clarence Thomas to beat back legitimate questions about sexual harassment while head of the EEOC.  The second is the use of the race card in circumstances that do involve racial injustice but maybe not racist—what I call racism without racist.  Here Katrina is a good example: the hurricane did have racially disparate effects, as a result of neighborhood segregation and black poverty but it’s not obvious at all to me that FEMA or other disaster relief efforts were ineffectual because of racial bigotry, or that, as Kayne West would have it, George Bush doesn’t care about black people.  A third reason is racism by analogy—the tendency of other social groups to claim that their issues are “just like racism.” 


DS: You touch upon the aftermath of Hurricane Katrina, and rapper Kanye West’s claim that President George W. Bush does not like black people (both in the book and earlier in this interview). You seem to cut Bush some slack, even if it’s just that he has been so incompetent in so many other areas that to expect competence in this area is too much. Basically you rely on Hanlon’s Razor, which states, ‘Never attribute to malice that which can be adequately explained by stupidity.’ But, you seem to ignore many other factors that go into the claim that Bush is a racist, like his policies which undercut minority advances economically and socially, his surrounding himself with token blacks, his Supreme Court appointments, and many other instances which, in toto, make the conclusion West came to seem plausible; if not in the ‘string up the jigs’ sense of racism, but the ‘I feel queasy whenever one of them is around’ sense. West’s claim, then, seems a reasonable application of Occam’s Razor, which states that ‘the simplest explanation, which best fits the known facts, is usually the correct one.’ Thoughts?


RTF:  No I don’t think so.  Bush’s policies are the policies of modern conservatism.  They probably injure poor blacks and poor whites to a similar degree. And I don’t think Bush’s black appointments were tokenism—I think that Condoleeza Rice, for instance, is someone Bush trusts and that she’s done precisely what any other neocon would have done in her position (there are interesting questions as to how she became a neocon—she started off as a realist-- but that’s another question).

DS: Interesting. Personally, I think Condo is the perfect token- a minority and a woman. And given the fact that, as National Security Advisor, she allowed the worst mass carnage in U.S. History to occur, and profited by it, with a bump in pay grade up to Secretary of State, I can’t see how she can NOT be considered a token. But, back to your book. You write: Katrina is a prime example of a racial injury without racists. Like most American cities, New Orleans is racially segregated. Its black residents are disproportionately poor, and they live in the least desirable, most dangerous areas of the city, so they suffered the most in the wake of Katrina. Their homes were disproportionately located in the areas that flooded. They were disproportionately without cars to move themselves and their belongings to higher ground, and therefore they were disproportionately among those unable to leave town before the storm hit. New Orleans’s black residents suffered as a result of racism- the racism that established black segregation and a crippling cycle of poverty. They also suffered because of the shortsightedness, neglect, and government incompetence that made the aftermath of Katrina worse than it had to be. It’s natural to want to hold the available blameworthy parties responsible for all of these evils. But most of the racists responsible for the distinctly racial cast of the Katrina disaster are dead and gone.’ Assuming you are correct, does it really matter? After all, whether the President, governor, and other public officials were racist or just incompetent and/or uncaring, the net result was the same.


RTF:  Yes it does matter because we’d need different policy changes to combat the problem if it’s contemporary racism as opposed to racism in the past.  If we insist it’s racism now, we’ll spend a lot of energy trying to root out bigots and prove discrimination.  If it’s racism in the past, we’d be better off putting our efforts into undoing the underlying inequities and not worry about finding a racist first. 


DS: Do you believe that racism, in America today, is less about racial supremacy and more just about fear and unease? Or are there other factors at work?


RTF:  I’d say yes, more fear and unease than outright white supremacy—not that white supremacy is dead.  And yes, there are other factors at work, such as the continuing effects of past racism—segregation, impoverished minority neighborhoods—which contribute to the fear and unease.


DS: There were a few factual errors in your book, such as on page 64, you claimed that it was Mayor Rudolph Giuliani that made the city cleaner, when that actually started in 1986, under Mayor Ed Koch, and continued through Mayor David Dinkins’ term. Before Giuliani even took office, subway cars were virtually graffitiless. You also briefly mention the Bernhard Goetz case- the ‘Subway Gunman’ who fought back against some young black muggers, then went nuts with his ideas on race. Yet, you don’t pay as much attention to this seminal New York case as you did the Brawley Hoax. Why? Did you feel it as unrelated to your thesis?


RTF:  I realize it’s hotly debated whether Giuliani’s reputation as a crime fighter benefited from trends for which he was not responsible, such as the initiatives of past mayors and nation wide improvements in crime rates and the economy.  But I think most people agree that Giuliani’s initiatives made some difference.  And the main point for my thesis in that part of the book is that most people believed that Giuliani was to credit for the changes in New York and he was riding high—except for his bad record on race relations. 

  I didn’t want to revisit Goetz because it wasn’t related to my thesis—Goetz was a sad racist psychopath and there are interesting questions to be asked about what led to his pathology, but those are for psychologists—not lawyers.


DS: You speak of the classic problem of racism and cabbies- whom you give the benefit of the doubt, citing things like shift changes as reasons a cabby may not pick someone up, and term the problem not merely one of racism, but of ‘distributive’ costs or justice. This seems to be straying into pointyheaded intellectualism for many people, over what seems a (pardon the pun) black and white issue. What exactly do you mean by the term and what is your solution to it?


RTF:  Distributive justice refers to inequities in wealth and resources.  Lots of people, myself included, think that it’s unjust that some people have very little and others have a lot; without demanding anything close to perfect equality, at some point, the disparity in resources is in and of itself a question of justice.  By contrast “reparative justice” refers to some illegitimate change in the status quo—a negligently caused injury for instance, or a theft, or, arguably a disadvantage due to invidious bias.  In the case of reparative justice, the claim is to be “made whole.”  But in the case of distributive justice, the claim is for a more equitable redistribution of resources.  In the case of the cab driver problem, if the cabbies are just bigots, that’s a problem of reparative justice—people are being harmed and they deserve to be made whole.  But if the real root problem is poor, crime ridden neighborhoods where cabbies don’t want to have to go, then its really a question of distributive justice: who should bear the costs associated with those neighborhoods, which include the risk of getting held up if you drive there?  If we make the cabbies ignore a useful proxy of a dangerous neighborhood—race—we’re imposing the costs on the cabbies.  If we let them use the proxy, we’re imposing the cost on the people who live in those neighborhoods, and everyone who looks like those people.  Neither result is just. 

  But once we see it as a distributive question, other options become feasible.  We could tax all cab fares, or only cab fares originating in the posh sections of the city, and use the revenue to give a bonus to fares that start or end in rough neighborhoods.  Or use the revenue to improve public transportation in poor neighborhoods.  Or we could just tax rich people and pay to make poor neighborhoods safer.  From a distributive justice perspective, any of these would be preferable to shifting the costs from one poor group of people (blacks in poor neighborhoods) to another (cab drivers.)


DS: You also take on talk show host Oprah Winfrey, a celebrity often touted as having, like Michael Jordan, transcended race, for her cynical use of the race card. A few years back she claimed she was discriminated against in France, at the famed Hermes department store, after she arrived after the store was closed and demanded to be allowed to shop. Your analysis shows her not as a victim of being discriminated against because of her skin color, but not getting the preferential treatment she felt she deserved as an international celebrity. So, she’s more a snob than the French are bigots? Or is it just another example of Oprah’s overweening insecurity and vanity, as displayed in that orgy of self-indulgence, when she broadcast her 50th birthday celebration and had hordes of celebrities come and kiss her ring in fealty?


RTF:  I’m not sure if Oprah is any more insecure or vain than the typical celebrity—I suspect our celebrity culture can take a real toll on the psychological health of those who enjoy its sustained attention.  My guess is that Oprah is typical of American celebrities: she expects the star treatment wherever she goes.  But when she doesn’t get it, she--or her fans and entourage--have a ready-made explanation at hand: it’s racism.  As a result, many people who see Oprah as one of the great symbols of black progress are all to ready to turn a garden variety snub into a civil rights issue


DS: I’ve always thought Oprah no better, and more hypocritical, than the Jerry Springers and Maury Poviches of the world. Basically, she got rich by exploiting the Lowest Common Denominator- mostly what people call ‘white trash.’ Do you see her as a role model for black youth, or as an agent of the dumbing down of culture- with her idiotic book picks, her unleashing the ghastly and moronic Dr. Phil on society, and other such things?


RTF: Oddly, a little of both.   Oprah’s success makes her an inspiration to many blacks who would otherwise think black folks can never catch a break, and that’s worth something.  But I do think Oprah is sort of a middle-brow Jerry Springer—all of these talk show hosts are cut from the same cloth, but Oprah’s tailoring is a bit more refined.  I don’t think she’s a role model (one of the most overused terms in the lexicon of post civil rights black empowerment) beyond the narrow sense that I’ve just suggested, and I have to agree that Dr. Phil is a public menace. 


DS: Is her form of dumbing down any different than Ebonics, or when black kids state that they don’t want to learn because ‘education is a white thing’? And, in regards to all of this, is not taking offence always a conscious choice on the part of the offended? Mature people simply slough things off, no?


RTF: Interesting: Jean Paul Sartre argued that all emotions are a choice—that there’s always a moment of decision where one says to oneself:  “should I be angry or hurt or sad about this?”  Most people don’t experience their own emotions this way, but I think that if we’re honest, we do often decide to be offended. 


DS: On page 79 you make an excellent point on Jim Crow, claiming that the fact that, after Jim Crow laws were struck down, whites did not abandon businesses that now served blacks. You posit this shows that whites had no fear of intermingling, but wanted to do so only in a superior position. As you write, ‘What good is a pedestal if there’s no crowd to look up with longing and envy?’ Yet, if every business had to, under penalty of law, serve blacks, what recourse did racist whites have, save to starve on principle?


RTF: They could have eaten at home.  And no doubt some people did.


DS: Re: intermingling, I’m always humored when I deal with people who say they don’t find a certain racial or ethnic group attractive or not. When I grew up there was an old saying, ‘It don’t matter the color of the skin, only what shape it’s in.’ Admittedly a sexist remark, but not racist. Yet, many people, of all ethnic groups, deny this verity. A pal of mine once told me he just was not attracted to black women. I then asked if he found Halle Berry, Vanessa Williams, or Beyonce Knowles, attractive, and if he’d pounce on them if they were warming his bed after a hard day’s work. His tongue hit the floor. After some more queries, I found out he did not like what he felt were certain ‘black’ features, which in sum, meant he did not want to fuck Aunt Jemima. Yet, here he was- a self-proclaimed Liberal, not a David Duke wannabe, and he still could not separate a stereotype from individuals. And, for the record, I don’t believe, for a second, that Duke would turn down a romp in the sack with the three aforementioned celebrities. Do you find it more difficult dealing with the closet Left Wing bigots, or the open Right Wing sorts?


RTF:  Yes, I agree with the general thrust of your comments here.  It’s telling that the typical black feminist response to your suggestion is that white people find blacks with “white features” attractive- so they would sort of dismiss your examples with the claim that Halle Berry is a black woman with Caucasian features and therefore she doesn’t really count.  But it’s sort of insulting to equate attractive features with whites and unattractive one’s with blacks.  Beyonce, for instance, has very distinctively black features, as does, say, Naomi Campbell—two unquestionably gorgeous women.  It is interesting that your “liberal racist” seems to share an assumption with some black feminists…


DS: I have a brother who is black, and he’s married to a white woman who is quite attractive. Yet, this is often a rarity, in that there is truth to the claim, by many black women, that successful black men often ‘trade up’ in spouses by dumping a black woman for a white woman, even if the white woman is more like a Roseanne Barr than a Catherine Zeta-Jones. What do you think of this phenomenon? Is it just a personal matter, or does it say something about the state of race relations in America?


RTF: There is probably some truth in this observation.  But I’m reluctant to take it too far: love and physical attraction are very complicated and inscrutable things.  I suspect that mixed race couples get a lot more scrutiny that same-race couples.   No one ever asks why a good-looking black guy is dating a homely black woman—they assume there’s some conventional explanation.  But if they couple is mixed race, immediately people think—oh, he’s “traded up” in terms of race by “trading down” in terms of looks.  But at the same time, if the black guy is seeing someone who looks like Heidi Klum people will come up with a racial explanation for that too: “he’s got to have that white Barbie Doll to prop up his manhood…bet she’s dumb as dirt and spends all his money….”


DS: In your section on Racism By Analogy, you really take the group PETA (People For The Ethical Treatment Of Animals) to task by analogizing animal rights with civil rights; i.e.- equating blacks with animals. Yet, while they literally do make the comparison, it was clearly not their intent to suggest that blacks were nothing but animals, rather that animals should not be demeaned the way American society once demeaned other humans. Thus, is not the criticism a bit overinflated?


RTF:  Maybe; but the analogy does at least flirt with a kind of bigotry—I suspect it’s where it gets some of its zing.  I don’t say PETA are racists but I think they were extremely insensitive, and deliberately provocative—they were willing to play on racism in order to advance their agenda. 


DS: On a side note, regardless of race, if drug and cosmetics companies were forbidden to test cosmetics on animals (still reserving the right to test cancer drugs and the like), as PETA wants, would you be against allowing testing on humans? Especially if we are dealing with prisoners- rapists, pedophiles, murderers? Let’s say a killer on death row volunteered for a medical experiment, and then had his sentence commuted to life in prison, or reduced to being set free when 65, would that not be a way to benefit science by testing on a human, while also allowing the prisoner to give back a little of what they took from society? And, let’s say a prisoner volunteered to take experimental cancer drugs, or AIDS medicines, would you oppose that?


RTF: I would worry about creating a society in which we lock people up for longer and longer periods of time and then force them to undergo dangerous drug testing in order to get out of prison.  I think we should imprison people for as long as necessary to protect society and deter future crime—in some cases that might be a very long time indeed—but no longer.  So if the rapist remains a threat I wouldn’t want him to be able to buy his way out by agreeing to drug testing and I’m not sure I’d want to keep him in when he’s not a threat even if he refuses to be a guinea pig (but as you suggest, maybe the testing would go to the deterrence side.)  I’m not dogmatic about this—I don’t oppose in principle the idea that prisoners work as part of their sentences and I don’t oppose in principle the idea that one form of work that people—whether in prison or not—might do is to test drugs or cosmetics.  It all depends on the implementation—God is in the details as they say. 


DS:  You also write of gay marriage, and the differences between sexual tendencies and racial makeup. What are your views, expressed in the book, and how do you personally feel about gay marriage vs., say, civil unions? As I type, the Supreme Court of your state, California, legalized gay marriage. Will it go to, and be struck down by, the U.S. Supreme Court?


RTF:  I support same sex marriage—it seems to me that the state has no business imposing religious mandates through public policy and most of the opposition to same sex marriage is religious at root.  My own view is that the state probably shouldn’t be involved in marriage at all—marriage should be a strictly private or religious matter without legal significance, and the state should perform domestic partnerships for any two consenting adults. 


DS: Interesting take. I’m almost 180 degrees from that in that I support all unions/marriages, but think, the state should be the only sanctioning body. Churches should not be involved. Perhaps it’s too much Judge Judy, but a marriage does provide legal protections for the individuals that palimony does not. Back to your book: another of the claims in your Racism By Analogy section has to do with obesity, and the claim that ‘Fat is the new black.’ You debunk that, and state that fatness presents an obstacle that is not insuperable, and also is dependent upon personal choice. You cite the example of a fat person being forced to buy two airlines seats. Many fat activist groups oppose such, but you really devastate the claim by citing the literal space concerns, and when classical musicians pay for a seat so that their instruments are not mangled below board, or when adults have to pay extra if children will not sit on their laps. First, as a lawyer, what is your opinion of the whole Fat Rights Movement (as well as the Looksist folks)? Second, as a black man, do you feel they are, in some way, diminishing the brute facts of racism by their constant use of specious analogues?


RTF:  I’m not convinced by the legal arguments of the Fat Acceptance movement- I think they make some valid points when it comes to social attitudes, but bias against the overweight just doesn’t rise to the level of a civil rights issue.  I do think these analogies can trivialize the seriousness and the singular nature of American racism—our history with racism is so severe and pervasive that extraordinary legal interventions are necessary to correct it.  For most other kinds of prejudice, the normal workings of the market economy and persuasion are sufficient.   


DS: You then touch upon a case of a fat woman who was an excellent Jazzercise teacher, but was fired because she was overweight, and did not look ‘healthy.’ I found the reasoning in the case a bit specious, as well as your seeming defense of it a bit mealy-mouthed. On the other hand, she would not have gotten hired at Hooters, either. Could you elucidate why her claim against her employer was, as you see it, not valid, whereas some cases of looksism have been seen as valid claims?


RTF:  For the most part, looksism claims have not succeeded in the courts.  Only when they are somehow related to sex discrimination have claims against dress codes and grooming been successful and even then they fail more often than they succeed.  For the most part, American employers are entitled to hire and fire employees for any reason--- good reason, bad reason or no reason at all—provide the reason is not one of a few prohibited bases of discrimination: race, sex, religion, national origin, disability, age and in some states sexual orientation.  My argument is that Jazzercise is basically selling weight loss—that why most people go to aerobics classes.  And so having an overweight instructor undermines the whole basis of their business.  Maybe its superficial for people to want to lose weight just for the sake of losing weight, but no more so than it’s superficial for people to want think shiny hair rather than split ends or smooth clear skins rather than acne.  If a cosmetic company can discriminate against sales clerks with acne (they can) then I see no reason Jazzercise can’t discriminate against an overweight instructor. 


DS: In the book you make a good point that fat people are not a distinct group, that there have never been ‘weight riots,’ etc. As someone employed in the grocery industry, I concur that obesity is mainly a choice. There are some people with overriding congenital genetic negatives, to be sure, but any trip into a supermarket invariably shows the fattest folk stuffing their carts with the fattiest and unhealthiest foods. As a black man, do you get angered over what, in effect, is a diminution of racism with all these analogues?


RTF:  I do worry about it.  And I also worry that the Fat Acceptance movement is making excuses for destructive behavior.  Yes, some people really can’t lose weight due to glandular imbalances.  But the overwhelming majority of overweight people could lose weight through changes in diet and regular exercise.  They should be encouraged to do so—not told that they can’t help it and they’re just fine they way they are.  I have a family history of heart disease and many of my relatives have health problems or have died due to poor diet and lack of exercise.  Should we condemn people to shorter and less healthy lives and call it a civil rights victory?


DS: Finally, re: weight issues. What is your opinion, personally, and legally, over issues of fitness in regards to job qualifications for policemen or firemen? Should weight concerns disqualify applicants? And, if so, does that mean petite women should also be disqualified for not being able to lift what an average sized man could?


RTF:  Sure, if the job actually requires physical fitness or upper body strength, then people without those objective virtues are not qualified.  Some jobs are much more likely to be filled by men because of such objective qualification—we still don’t see many female fire fighters for example, because that job really does require a lot of upper body strength—lifting hoses and carrying people from buildings.  Of course sufficiently strong women should be given every consideration, but there’s nothing in civil rights law that requires employers to ignore the merits and hire people who can’t do the job.  The problems begin when employers impose requirements that aren’t really necessary to do the job just because “that’s how we’ve always done it.”  The key is that the requirements fit the job in question. 


DS: On page 146 you write something I’ve often thought and argued for:We all work with what we have: should those blessed with high IQs be free to capitalize on their native intelligence while those blessed with high cheekbones be denied their natural advantages?Basically, you are arguing for the fact that society naturally prefers beauty to ugliness, the same way it prefers intellect to stupidity, or hard work to sloth. Now, many folk, especially faux Feminists- also called Feminazis, often think that valuing good looks is sexist or shallow. But, since we know that beauty is a biological trait that evolution favors (for a variety of reasons), just as it does intelligence, how is one any less shallow? After all, Einstein had little choice in being Albert Einstein and not Johan Slobovsky, the booger-picking janitor who swept up the patent office in Switzerland where Einstein started out; and being ugly does not mean someone is a ‘good person.’ Comments?


RTF: I do think that beauty is a relevant attribute in some circumstances, and we shouldn’t be ashamed to admit this, any more than I’m ashamed to admit I prefer the company witty and personable people as opposed to dull and grouchy people.   We go astray when we insist that every preference must be “rational” in a narrow and strict sense or “fair” in the sense of considering only morally relevant characteristics.  We spend a great deal of time and money on how things look: why do I prefer the Ipod to the Microsoft “Zune”?  In large part it’s because the Ipod is beautiful and the Zune is not. 


DS: Thus, let’s say if your books on culture make you an international guru, and you are invited to the White House to speak, you should not be chided if a Halle Berry or some supermodel is on your arm vs. a Plain Jane from the economics department at Stanford. The supermodel values your intellect, or fame for it, while you value the physical charms she brings. Because Joe Blow, who’s a greasemonkey at Midas auto repair, is not going to the White House, and not going home that night with Halle, does not mean that such a situation is unfair. It’s just a matter of ‘natal qualities.’ We might all be equal under the law, but not in reality. You may outplay me in chess, I might run a faster mile, you might beat me in tennis, but I’ll write a great sonnet. Do you think much of what people sue over, these days, is thus a playing out of their insecurities and fears in a public arena? If so, what needs to be done to reverse this self-indulgent trend?


RTF: I think that in a way we’ve gone overboard with the ideal of equality.  Kurt Vonnegut wrote of the “Handicapper General” in one of his short stories, a character who went around making sure everyone was truly equal by hindering people with exceptional talents, making beautiful people wear masks, distracting the exceptionally intelligent until they were effectively no smarter than average.  This is a nightmare world.  It is an odd form of insecurity and jealousy that, rather than celebrate someone else’s virtue, resents it.  Oddly enough, at the same time, we have an extremely competitive society with extreme disparities of wealth.  I suspect that people might be a little less resentful if they weren’t so insecure in their own basic social position and material status.  So in a sense, our freedom and social mobility have produced a pervasive sort of Nietzschean ressentiment.  And almost everyone falls into it: Oprah is rich and famous, but still resents the Parisian shop clerk who won’t open up after hours to let her in; dazzlingly smart and powerful professionals still resent pretty college girls who get to jump the queue at a nightclub.  

  Oddly, at the same time we neglect the types of equality that really should concern us:  the gap between rich and poor has widened dramatically in the last three decades and the poor receive little sympathy from most people and little help from government.  Perhaps the obsession with the legalistic type of equality is a compensation for the growing inequality that we’ve allowed in the economic sphere.


DS: I think it’s an excellent point, and one that those with liberal leaning tendencies have utterly missed the boat on. Perhaps they feel the easier legalistic ‘victories’ are moral recompense for their inability to persuade most Americans that the more cogent inequalities you mention are truly more cogent. But, sticking with the idea of a good looking person capitalizing on same, what of these endlessly exotic and PC female writers whose dust cover photos seem ripped from Glamour? I’ve read Nell Freudenberger’s stories, and she is wholly generic. I’ve read Zadie Smith’s first novel, and she cannot write well, period. And Jhumpa Lahiri thinks good fiction comes from mere description of spices. Yet all of their books are marketed with photos displaying their claimed sexual attractiveness, as if my wanting to fuck any of them makes them real writers. Is this more of PC society? Is this a good thing?


RTF:  It can’t be good if resources are diverted from real talent toward people without talent because of their good looks or exotic biographies. It’s a pathology of our celebrity culture: even if you think J. Lo or P. Diddy are great musicians, why would you buy their clothes?  Why not listen to their music and buy clothes from someone who knows tailoring?  Even if Oprah is great at interviewing the rich and famous on her show, why should we trust her to become an arbiter of literary taste?  Better to watch her talk show and trust the New York Times for your summer reading list.  Maybe this is a cost of a taste for beauty.  But it also a cost of branding and celebrity—the publishing industry want to market authors as a brand.  I haven’t read any of the authors you mention so I can’t comment on the merits or lack thereof of their work; but I’m not surprised that this sort of thing happens.


DS: Let me now move back from the book, and get you to opine on some broader questions of race, legality, and other things. You are the first lawyer I’ve interviewed. Most of the other writers are scientists or creative writers, of one sort or another. I ask this question of almost all my interviewees, but, as a lawyer uses different parts of the brain that artists or scientists, let me see if you find any relevance to it. I believe that artists are fundamentally different, intellectually, than non-artists, and that the truly great artists are even more greatly different from the average artists than the average artist is from the non-artist. Let me quote from an essay I did on Harold Bloom, the reactionary critic who champions the Western Canon against Multiculturalism: ‘….the human mind has 3 types of intellect. #1 is the Functionary- all of us have it- it is the basic intelligence that IQ tests purport to measure, & it operates on a fairly simple add & subtract basis. #2 is the Creationary- only about 1% of the population has it in any measurable quantity- artists, discoverers, leaders & scientists have this. It is the ability to see beyond the Functionary, & also to see more deeply- especially where pattern recognition is concerned. And aRTFo to be able to lead observers with their art. Think of it as Functionary2 . #3 is the Visionary- perhaps only 1% of the Creationary have this in measurable amounts- or 1 in 10,000 people. These are the GREAT artists, etc. It is the ability to see farther than the Creationary, not only see patterns but to make good predictive & productive use of them, to help with creative leaps of illogic (Keats’ Negative Capability), & also not just lead an observer, but impose will on an observer with their art. Think of it as Creationary2 , or Functionary3 .’ In the sciences, this dynamic is applicable. When I interviewed Steven Pinker, he seemed to feel IQ was good at predicting success in life- at least socially, academically, and career-wise. But my 3 Intellects posit is something I don’t think he fully got the point of. That is that creativity is wholly ‘outside’ the axis of IQ. In other words, there could be someone with an IQ of 180, and a Functionary Mind, vs. someone with a 120 IQ, and while the 180 may be better suited for test taking, the 120 IQ, with a Creationary or Visionary Mind, will be able to understand concepts at a deeper level. IQ measures narrow problem solving, but is utterly useless in regards to creativity. To use an analogy: think of vision tests. In a real world sense, this is akin to the Functionary being able to see on the 20/20 scale, while the Creationary might be able to see on the first scale- yet only at 20/50, but also be able to see in other light- X-rays or infrared, etc. Then, with the Visionary, not only are the two sorts of sight available, but also the ability to see around corners, through steel, etc. In a scientific sense, the Functionary might be represented by your typical person working in the sciences, the Creationary by someone along the lines of a Madame Curie, or Nicolaus Copernicus, who can discover great ideas, but which are logical extensions of prior paradigms. The Visionary, however, might be able to make even greater leaps- such as Hutton reaching far beyond Bishop Ussher, Darwin’s and Wallace’s ability to transcend Lamarckism, Newton’s development of a new mathematics- calculus, etc. What are your thoughts on this, re: legal thought? Are their legal giants who might be considered visionaries? Who are they? Is there one discipline of law- banking, civil rights, corporate, tort, that lends itself more to creative or visionary thought? And, if you are copacetic with such a system, where on the scale would you place yourself?


RTF:  I think IQ measure some things quite well and other not well at all, so I’m in sympathy with your basic idea here.  I’m not sure about the specifics—I just don’t have the expertise to opine on how one might go about measure other types of intelligence or even if they can be measured.  I’ve also heard people speak of “creative intelligence”, “emotional intelligence” even “physical intelligence.” 


DS: On page 151 you make an error that many do, calling Latinos the largest racial minority group in America, when Latinos are not a race, but an ethnic group. Just ask any Brazilian or Cuban about the difference between being white or black in those countries, and your claim is rented. My question, though, is that if you- a well educated guy writing a very good book on race relations in this country, makes such a seminal error, what does that say for the bulk of Americans not as well read and informed as you? Does this explain the sloth at which racial justice moves?


RTF: There a big academic debate about whether it’s appropriate to consider Latinos a racial group.  I won’t bore you with it here, but suffice it to say that some people think that in the United States, Latinos—even those who would be considered “white” in their countries of origin-- are treated as if they were a distinctive racial group and not in the same way as “white ethnics”, say, people of Italian descent.  But I think the situation is much more complicated than this suggests.  You’re right to say I wasn’t very careful to make this distinction clear. 


DS:  You later write about the idea of ‘intrinsic worth,’ and its goal in hiring fairly. Yet, if a person from a group that is discriminated against from birth, subject to a poor education, is given favor over a person without those handicaps, some scream bloody murder. I’ve always been pro-Affirmative Action, and, no bullshitting around, pro-quota, because without quotas of inclusion there will be many places with quotas of exclusion- meaning the number of minorities will be zero. That’s as true today as ever, just as blacks hear cab doors click shut, and just as they are disproportionately followed through department stores by security guards. I still argue with white people whom I am friends with who simply do not live in the same reality. They are totally clueless that such behaviors as those I described exist, even if they are not immune to occasional hostilities directed at them from blacks or other minorities. I find their obliviousness astounding. You argue that employers should not have to hire the ‘best person’ for the job. Explain.


RTF: I don’t think the law should force employers to hire the “best person” according to the opinion of judges— we should not have the court substitute their judgment about who is best for that of the employer--for the most part we have to let the employer decide who is best for the given job.  The exception is that we should prevent employers from discriminating against people because of their race, sex, religion, etc.  These are narrow exceptions to the general rule of employer prerogative, which are justified because of the long and well-documented history of irrational discrimination on the basis of race, sex, etc.  Affirmative action doesn’t fall into that category of longstanding and pervasive irrational discrimination: instead it’s an attempt to remedy and counteract the longstanding and pervasive discrimination.  One might argue with the wisdom of affirmative action, but I don’t think the law should prohibit it (or require it)—it should fall within the wide range of decisions that are the employer’s prerogative. 

So I agree with your views on affirmative action.  But I think the reason is not that employer should have to hire based on “intrinsic merit,” but because, as you point out, we have a racially unjust society and affirmative efforts are necessary to overcome and counteract the legacy of racism.


DS: On a philosophic level, do you any criteria as wholly objective, at least legally? Or, is it all a philosophic exercise- i.e.- a single drop of objectivity objectifies a whole ocean’s worth of subjectivity, the way a single drop of blood would literally make an ocean of pure water impure?


RTF:  Sorry, I’m not sure I followed this question.  I think there are “objective” criteria for college admissions, but most are.


DS: You later write of a case of a female prison guard who claimed sexual harassment by a warden who had several female lovers on staff. The woman was denied promotion for refusing to become his lover. You argue that her case was correctly denied for she was not, as she claimed, a victim of sex discrimination, but of favoritism. But, the net effect was the same, so is not this the sort of legal hairsplitting that makes people want to kill all the lawyers? Briefly summarize the case and the verdict, and while not directly related to the seizure of property under the ‘fruits of a poison tree’ argument, is there some connection with how the warden’s misbehavior poisoned all around him, in terms of the workplace?


RTF:  She actually won her lawsuit eventually, on appeal to the California Supreme Court.  But my point is that any discrimination law can’t just be about the effect on the individual.  Sure, she was denied the promotion, whether or not sex discrimination was the reason.  But being denied a promotion is not in and of itself, legally actionable.  And even being denied a promotion for bad reasons (such as favoritism) isn’t actionable.  We could require employers to have “good cause” for any employment decision, but right now we don’t.  So liability should hinge on whether she was denied the promotion because of her sex.  In that case, she wasn’t.  My claim is that we need to decide whether we want a general requirement that employment decisions must be made for cause or not.  But in this case the court more or less decided that if the decision was “unfair” and involved eroticism or sexual desire—in this not directed at the plaintiff but at someone else who apparently didn’t object-- and the plaintiff is a woman, that’s sex discrimination.  I think that’s incorrect: the law against sex discrimination should not become a law against workplace eroticism generally.  If we want a law against favoritism, let’s pass such a law rather than torture existing civil rights to make them fit every situation that’s unfair. 


DS: On page 191 you reference a kid’s cartoon film, The Incredibles, wherein one character claims everyone is special, and another says that means no one is. The same sort of argument is made regarding racism, so does not that mean no one is a racist these days, save for the occasional skinhead?


RTF:  I try to point out that we need to reserve the term “racist” for people who are truly contemptuous or hateful toward people because of their race.  The idea, very much in vogue now, that “everyone” is a racist or has “unconscious bias”, is troubling because in a way, this suggests that no one is really a racist.  There are real racists and they deserve all of the moral condemnation


DS:  Then there are blacks that try to parse a difference between bigotry and racism, claiming that blacks cannot be racist since racism is a system of oppression. Yet, Webster’s Dictionary rents such a claim; but the claimants persist. How do you distinguish between personal and systemic racism, since the latter leads into your claim that there can be ‘racism without racists’?


RTF:  I think we should be careful not to accuse individuals of bad motivations that they may not have.  If someone is really a bigot, that person deserves to be condemned.  But if they just happen to preside over an institution or social conditions that produce racial inequities, we should look to the underlying conditions rather than blame the person nearest to hand.


DS: On a personal level, since you mention it in the book, what term do you use when referring to your own background- black, African-American, colored, Afro-American? Why?


RTF:  I usually use the term “black”.


DS: You also mention racial profiling and what is called DWB (Driving While Black). Is it ever justified, as you seem to imply? Under what circumstances?


RTF:  Profiling might be justified if the stakes are high enough and the profile is based on objective and accurate information.  I don’t think it’s ever justified to stop people simply for driving while black, but it might make sense for law enforcement to use race, along with other factors, as part of a profile, if they have good information that race is relevant and if the type of crime in question is serious. 


DS: You also take on diversity in Academia, and the desire to expand canons of literature and art by rejecting old standards- i.e.- positing some little known writer or painter from an ethnic group is as good as a William Shakespeare or Pablo Picasso because the two named artists get favored treatment for being white males. Yet, this leads to dumbed down art, where a writer like the aforementioned Jhumpa Lahiri can win a Pulitzer Prize, even though her stories are just soap operas with Indian spice names in them (the accoutrements of a culture sans any of the depth and reality). Or a Toni Morrison winning a Nobel Prize while more deserving writers- such as a black male like Charles Johnson do not get such an award, simply because whatever body decides it is time that some token get awarded. Ideas?


RTF:  I do worry about tokenism and about art that is driven by ideological considerations such a multiculturalism rather than real artist virtues.  I think Toni Morrison is a very talented writer, so I can’t agree that her fame has been unwarranted but I do think the phenomenon you mention has led to notoriety for some mediocre writers (Alice Walker comes to mind). 


DS: What of the recent trend, in books and film, to create counter-myths, such as the Mystical Negro (see The Secret Lives Of Bees or any role acted by Morgan Freeman where he guides the dumb whitey to higher spiritualism)? Is this not just a latter day version of Rousseau’s Noble Savage?


RTF:  Yes, I think this idea that black people are somehow the repositories of spiritual enlightenment is quite common and it does have a genealogical antecedent in the Noble Savage.  I suspect this will be with us for a long time—someone wrote an interesting piece in The New Republic about Oprah’s success being due, in part, to a cultural predisposition to see African-Americans as spiritual and moral lodestars. 


DS: What are your thoughts on ethnic holidays, or Black History Month, etc.? Does not this blur an individual’s real accomplishments, especially if those accomplishments have little to do with the group the individual belongs to? I ask because, some years ago, I worked as a civil servant, and during Black History Month, the county I worked for had some celebrations planned. One of its featured speakers was a black man with a radio show, and this guy held Anti-Semitic views akin to those of Louis Farrakhan, as well as his having lost his radio show for abusing drugs. I thought he was a terrible role model to hold up for any children, especially black kids, yet this PC mindset tainted the process. Had the man been white, as example, they never would have invited him to speak with his documented background in bigotry. The point is, while he has a right to air his noxious views, I’m against a political organization aiding him. What are your thoughts on these things, which occur many times over, both personally and legally?


RTF: Unfortunately, many people feel the need to tolerate demagogues and bigots in the name of reaching out to community leaders.  The Million Man March is an example—my view is that anything organized by an anti Semite and chauvinist like Farrakhan does not deserve the support of respectable people.  Yet, people like Cornel West, who I respect for many other reasons, felt the need to support it and ignore Farrakhan’s bigotry.  I think this is a serious error: no one would agree, for instance, that it’s okay to reach out to David Duke, despite his racism, because he’s a leader of many poor whites. 


DS: On the other end of the spectrum, you mention Jack Kerouac, a white male who represents a stereotype, started by the Beatniks, of old white men with Leftist leanings, who ejaculate over the cultures of minorities, such as black culture’s Jazz music, or Oriental culture’s religions. I’ve always found such people silly, at best, and depressingly representative, at worst, of all that’s wrong with the arts, and the wider culture. What is your take on such stereotypes, the kind which also leads to suburban whiggers who take on hip hop culturata?


RTF:  I think black culture has long been a fetish object for some white hipsters.  As much as I admire Mailer’s intellect and erudition, I sort of bristle at much of this essay.  But at the same time, I won’t condemn this impulse 100%-- this kind of fetishism can inspire real art—Elvis Presley for instance, or to take a more distant example, consider Gaugin’s fetishism of the tropical natives or the obsession of modernist painters with the art of the Orient and Africa.


DS: On the other end of the spectrum there are minorities who wallow in the worst aspects of their culture, and if criticized for it, displayed in their art, they whine that the criticism is bigoted. As example, I’ve ripped bad black poets like Maya Angelou and Wanda Coleman, and been called racist, even though my criticisms had nothing to do with race, and I often pointed out examples of the criticized using their own racial stereotyping. Yet, I’ve also championed good and great black poets like Robert Hayden, Thylias Moss, and James Emanuel. In your book, you write of many such little hypocrisies. What do you think drives such- merely small egos and insecurities, and is there really anything the law can do as a remedy for such ills? And when will such Boy Who Cried Wolf nonsense end?


RTF: No, the law can’t do much about this type of thing.  I think a sign of taking art seriously is being willing to criticize it:  theirs is a troubling double standard at work when people want multicultural work to be taken seriously but bristle that any criticism is necessarily a criticism of the entire race of the artist.  I can’t say I agree with you about Maya Angelou as a general matter, but that’s not the point—the fact that you don’t like her poetry doesn’t make you a racist. 


DS: Any broader ideas on Political Correctness and Multiculturalism? You also take on the desire of artists to associate with their group, often as a cover for their artistic failings. Do you see this as a concerted effort to kill both empathy and imagination? After all, I would be bored shitless if the only perspective I wrote from were my own, be it in story of poem.


RTF:  Multiculturalism started off as a sensible set of ideas: that we should broaden the literary canon to include authors from non-European societies and traditions and broaden our minds and aesthetic standards to take other cultural traditions into account.  And much of the project of ethnic literature is akin to, say, German nationalism in the 19th century—the Brothers Grimms traipsed around German villages recording folk tales in order to establish a uniquely German literary tradition—similarly some scholars are hard at work trying to work out the unique features of the African-American literary tradition.  As the analogy suggests, this type of nationalism can have its uglier side, but the effort itself is, I think, quite understandable. 

  But MC went off the rails pretty quickly, as people started to demand inclusion for the sake of inclusion and developed theories of cultural ownership that amounted to ethnic protectionism:  only my racial group is entitled to write about or to judge our cultural tradition.  There was also stark contradiction: on the one hand distinctive ethnic group  experiences and cultural traditions are so opaque that only members of the group can evaluate them; but on the other hand they are sufficiently universal to merit inclusion in the academic canon of humanistic study.


DS: One of the funnier aspects of PC, that you seem to ridicule, is the conflation of a moo latte drink with the old racial term mulatto, even though the two words are not pronounced alike. The mu- in mulatto is pronounced with the short U vowel sound. Any other examples of such you did not use in the book? And why did you include the moo latte example and not the others?


RTF:  “Moo latte” was funny because the company wanted to have it both ways—they wanted to play on the word “mulatto” in a sort of hipster post-racist humor, but when they were called on it, they lost their nerve and denied it had anything to do with the term mulatto. But it’s not clever unless it’s meant to evoke “mulatto”—“moo latte” is just a dumb name without the implicit reference to mulatto.  Ironic humor is only funny if you don’t blink—as soon as you do, you look silly. A comedian had good time squeezing them on this. 


DS: You barely touch upon these issues in the book, but what are your opinions on such things as invented traditions in the black community- such as Kwanzaa? It seems to stem from the same urge that makes black parents invent new names for their kids, or exotic spellings of old names. Yet, there are no LaToyas running around the veldts of Africa. I’m also reminded of the late 1970s ideal, started by the television miniseries Roots, of black leaders claiming that all American blacks were ‘descended from kings,’ etc.


RTF:  I’ve always found Kwanzaa a little puzzling—it’s one thing for non Christians to play up a winter solstice holiday in order to have something to do over winter break—Hanukkah for instance is a relatively unimportant Jewish holiday from a theological perspective but you’d think it was the most important holiday in the Jewish calendar because it happens to more or less coincide with Christmas and it’s been given extra attention for that reason.  So why not have a special black holiday around Christmastime too?  Well, the answer is that because most blacks are Christians.  We’ve already got Christmas.  So Kwanzaa is especially artificial and pointless.

The truth is blacks in the United States have a rich and distinctive cultural tradition that grow out of the black experience in the US and is based almost entirely on English language texts and involve modifications of European artistic models. This doesn’t make it any less rich and artistically valuable, any more than the fact that Mozart’s Operas were derived from Italian Opera Buffo makes them somehow lesser works of art—in fact, like Mozart, Ragtime and Jazz often surpass the art they took as a model.

  Our names are similarly English language names.  Black nationalists sometimes deride them as “slave names,” and that’s one of the ideas that has given rise to the trend of ersatz Africanisms.  But the fact is we are descendants of slaves.  It’s the faux African names that are fake and inauthentic—not the European names, which reflect our actually ancestral history, like it or not.  I understand the desire for pride and solidarity, but I think the faux Africanisms are a little misguided.


DS: When I interviewed Charles Johnson, I asked him this query: ‘The Du Bois quote and mention also put me thinking about modern rap music, and its effect on kids (of all races), as well as the sort of empowerment some try to use art for. It reminds me of blacks who try to bolster a young child’s ego by telling him/her that they ‘were descended from kings,’ as a counter to the debilitating effects of slavery and persistent racism today. This goes back to the ‘all art is political’ canard, but where do you stand, politically- as man/artist, on the role of the past on individuals? And is my asking such a thing falling into the trap you later mention in the book- assuming your expertise on race relations for your blackness? After all, as a white man, I’ve heard things white folks say behind the backs of blacks that you can only speculate on, so while you (as a black man) may be expert on the effects of bigotry, I surely am far more expert on its causes and extent; at least the American black-white form of bigotry. Neither of us is likely qualified to speak on native bigotry in Madagascar, for instance.Johnson disagreed, and replied, ‘Actually, I must disagree with your statement that what you’ve heard in only non-black company is equivalent to my knowledge of race. Yes, I have 59 years of personal racial experiences, as you no doubt have years of the same. But as a scholar, I’ve devoted myself since I was an undergraduate discussion group leader for the first big lecture course on Black American History at Southern Illinois University in 1969 (when Black Studies courses began there) to the systematic study of black American history, culture, and thought since the year 1619 when the first 20 Africans became indentured servants (and later bought their freedom) at the Jamestown colony. (Interestingly enough, one of them took the name “Johnson”.) As you said, I can’t speak about bigotry in Madagascar, because unlike my research in black American history, I’ve not studied that for a lifetime, as I’ve done with the history of my own people.’ However, I think he missed my point, and one that you echo in your book, that blacks often assume they know whites and their motives better than whites do. To me, this is as silly as the reverse, when white sociologists tried to construe all sorts of claims into black behavior. Your ideas on cabbies and shift changes, and your Cornel West anecdote, among others, seems to put you at odds with Johnson’s views. So, would you agree with my posit that, ‘as a white man, I’ve heard things white folks say behind the backs of blacks that you can only speculate on, so while you (as a black man) may be expert on the effects of bigotry, I surely am far more expert on its causes and extent; at least the American black-white form of bigotry.’?


RTF: I take your point: whites are participants in “race relations” as well as blacks, so it’s not necessarily the case that blacks know “more” about racism by virtue of race alone—whites are likely to know more about certain aspects of racism, revealed in candid statements in all white social contexts that are kept hidden from blacks.  That’s somewhat different than Johnson’s point, which is that it’s study—not race—that makes the difference and he has spent decades studying racism as a scholar.  So perhaps you were talking past each other—he wants to insist on the importance of scholarly study and you want to insist that whites may have unique insights that blacks lack just as blacks have unique insights that whites lack.  I think both points are valid. 


DS: Good point, however lawyerly put. Also in the Johnson interview, I mentioned the tendency of whites to assume any black person having expertise on race (similar to ‘all brothers bein’ down w’each other’), and he wrote of this as sort of a black self-segregation of intellectual pursuit in his essay, The Role Of The Black Intellectual In The Twenty-First Century. Do you still encounter this sort of attitude, to this day- on campus or off?


RTF  Yes; I think Johnson’s essay is quite astute on this and many other points.  


DS: Near the end of the book you talk of a New York City housing project called Starrett City, and its racially diverse inhabitants, as well as a court case brought against the project. What effect did that have, and what are your views on the issue?


RTF: Starrett City lost and had to drop its integrationist policy.


DS: The Starrett City example is interesting because, having grown up in Queens, New York City is really a mix of ethnic ghettoes, where integration is not high. I also lived in suburban Minnesota, where racial attitudes are shockingly backward- to the point that many white Minnesotans still use a term like the aforementioned mulatto. Yet, now living in Texas, my subdivision is almost akin to those old newsreels about the towns of the future, where people of all backgrounds live next to each other. Yet, Texas is often seen as recalcitrant and backwards in terms of race relations. What accounts for this Bizarro World mixup of reality and presumptions, in regard to race relations?


RTF:   I’m not sure—this is certainly worth of study.


DS: Your book posits institutional racism as a greater force than individual wackos. This would, I’m sure, include some of the early Twentieth Century policies as the Wagner-Steagall Act, and men like Robert Moses, who actively engineered the breaking up of integrated urban neighborhoods for the express purpose of ghettoizing blacks and other minorities, which led, in turn, to the practice of real estate redlining. Even as late as 1991, when I left New York City, I had realtors tell me they would not show my home to minorities, for fear it would be torched. Yet, you posit the systemic racism is now, basically, a husk without an actor within. You write: Taking every racial issue personally can blind us to the many racial injustices for which no one is to blame. If every racial injustice entitles its victims to lambaste the person nearest to hand, then when there is no racist to blame, it follows that there must be no injustice. As racial politics increasingly focuses on trivial slights, innocent slips of the tongue, and even well-intentioned if controversial decisions, the most severe injustices- such as the isolation of a largely black underclass in hopeless ghettos or even more hopeless prisons- receive comparatively little attention because we can’t find a bigot to paste to the dartboard.’ How did this happen, and how can such a system be defeated? Then, you also write of the results of the government intervention of the mid-Twentieth Century, wherein ghettos were created by destroying vital neighborhoods- i.e.- the lack of good jobs, supermarkets, and outrageously high gas prices. Yet, if one just looks at the World Bank example of fighting poverty abroad, their greatest success come not from trying to legislate civil behaviors, but by giving money directly to the poor to start business, and empower the poor that way, by cutting out the middlemen. Yet, in this country, that has rarely been tried, instead trying welfare alone, which led to a cycle of dependence. My belief is that, contra to their claims, many whites wanted this, so that blacks could not economically compete via businesses. I see this as a corollary to your claim that whites were not averse to race mixing, but wanted to be seen as superior. In this case, whites don’t mind paying off a bit to blacks, as long as they are not a threat to compete economically. Do you agree? If not, explain.


RTF:  Sounds plausible to some extent.  Certain white dominated unions and white dominated trades and professions resisted equal opportunity in large part because whites didn’t want to compete with blacks.  The history of trade unionism is quite mixed in this respect: some unions were anti racist but others fought hard to keep blacks down and out to avoid competition. 


DS: By book’s end, you recommend a WPA-like approach to solving racialized poverty. My dad, born in 1916, served in the CC Camps in the Great Depression, and told me that many of the camps that he served in, out West- in Washington state and Idaho, were integrated. There seem to be so many positives from such approaches, so why are not these things tried out? One could calibrate a system, especially for young folk, and have them serve summers for their country- from 12-19, and give college scholarships based upon school grades and number of summers in national service- 1 to 8. This would go a long way to quieting those provocateurs who see ‘reverse racism.’ Ideas?


RTF:  I like this idea a lot.  I think it hasn’t been tried because the political right has successfully tarred all such programs as “make work” programs.  But as many have pointed out, these “make work” programs are responsible for the construction of much of the nation’s once great, but now decaying, infrastructure.


DS: Near the book’s end you finally delve into the O.J. Simpson murder trial. Yes, there were the Othello and Desdemona overtones, but most people, I think, saw the whole thing as another episode of drug-soaked Hollywood hedonism- that the wife was likely screwing the other guy, and OJ went bonkers with jealousy. As a cynical New Yorker, who grew up during the Serpico Era, I think OJ did it, but, were I on the jury, I’d’ve acquitted him, because the only thing I’m 100% certain of is that the LA cops did plant evidence to strengthen their case, and thus opened the door for OJ to weasel out through. I could see a 1-2% chance OJ did not do it, and that’s too big a chance for me to damn a man to life in prison, or to a death sentence. Many blacks, however, saw a perverse justice in the case, that OJ- a man of means, got away with what rich white men, like Claus Von Bulow, have spent centuries getting away with. In short, it was the Mark Fuhrmans who lost that case for the prosecution. What is your take on the verdict, and case as a whole, especially as relates to your book’s main thesis?


RTF:  I don’t think there was anything to celebrate in this verdict.  The evidence against Simpson was extremely strong and it was simply impossible for the police to have planted all or even most of the evidence that conclusively tied OJ to the crime.  To be sure, the rich can often get away with murder but that doesn’t make any specific instance of beating the rap any more just. 


DS: I mentioned Serpico, but police corruption goes far deeper than that, despite the post-9/11 hagiography of the profession. When a cop writes a bogus parking ticket to meet a desk sergeant’s quota, that’s as corrupt as taking graft from a drug dealer. It’s not as pernicious, perhaps, but as corrupt. Same thing with accepting gifts from neighborhood store owners. To what degree do you see such corruption being entangled with systemic racism?


RTF:  Corrupt police departments certainly play a role in keeping impoverished and dangerous neighborhoods in their dire condition.  And so in that sense, yes, corruption is one of the things that allows the racism of the past to continue to harm people today.


DS: Let me toss a few smaller (if not easier) questions at you. Whether one is murdered by a serial killer, a hitman, a spree killer, a pedophile, a mugger, a drug addict looking for cash, or a Klansman wanting to string up a Jew or black man, the dead are still dead, right? So, aren’t ‘hate crimes’ silly? After all, the deed is what is to be punished, not the motive. Your take?


RTF:  I’m not a proponent of hate crimes legislation.  I think conventional criminal law is usually sufficient to deal with violent crime and anti racketeering laws can deal with organized hate groups that commit crime.  “Hate crimes” are another example of our obsession with state of mind—it’s extremely hard to prove or disprove the relevant state of mind and we get many of the same problems of ambiguous or mixed motivation.  And it turns out that most hate crimes prosecutions involve minority defendants—so ironically this anti racist legislation has had the effect of exacerbating one of the most severe racial inequities in our society: the disproportionate representation of minorities in the prison population. 


DS: Historians often claim that the greatest hate crimes, which become atrocities like genocide, are often inflicted by the most similar groups, rather than polar opposites, like white-black, or European-American Indians. They will cite Serbs and Bosnians, Sunnis and Shia, Irish and English, Japanese and Chinese, etc. Do you think this is so? If not, why not, and does it really matter why one group persecutes another?


RTF: The narcissism of small differences: in a sense people care most of the tiniest differences—not the big ones.  If someone is too different, I don’t see him as competition.  I’m more likely to feel envious or threatened by another writer or another scholar—not a physicist or an entrepreneur.


DS: Do you view religious morality (that imposed from without) as different from secular ethics (that immanent), which is based on deeper, common human values? And where do legal ethics fit on this spectrum? After all, some moralities justify the killing of infidels, but no ethics do.


RTF: Legal norms are a more pragmatic version of philosophical ethics.  I know philosophers find the ethical discussions of lawyers infuriatingly vague and expedient, but the point is that law has to work—we can’t afford to apply the categorical imperative categorically—there have to be exceptions and trade off.  Law is closer to politics: the art of the possible.

DS: Let me turn to the upcoming Presidential election. By the time this interview runs we will have a good idea whether the next American President will be Republican John McCain or Democrat Barack Obama. Whether or not you support one or the other candidates, what is your take on the ease with which the Clinton camp delved into shameless racial fearmongering, especially in Appalachia? Does this not only feed black paranoia and suspicions that even so-called ‘good whites’ are really closet racists? What did you think of that infamous ABC ‘debate’ from Pennsylvania, where the ABC hosts openly attacked Obama on things like Reverend Jeremiah Wright and flag lapel pins and ignored real issues? Or, are you, personally, immune to such noxious political theater?


RTF: I wrote an editorial for the Washington Post about the use of the race card in the election.  I think race is too tempting for politicians to resist trying to use it to their advantage.  The Clintons stooped to some pretty blatant uses of the race card, and I think it has really tarnished their image.  It’s too bad that President Clinton didn’t just settle into his role as an elder statesman (which he is quite well suited for) and instead got into the mud wrestling of win-at-all-costs politics. 


DS: A month or so ago I had to take a copier to a repair place, and when I picked it up, the repairman- who was black and 60ish, seemed, at first, surprised when I extended my hand in thanks for his fixing the machine, and then happy. I could tell that it was more than a customer not being rude, and that there was some deeper sense of his self that simply did not expect such literal person to person niceties from a white man. Do you still find such attitudes of deference or resignation to white bigotry from older black folk you know?


RTF:  Yes, occasionally.  But for the most part I find older black people are a combination of more resigned and also more determined to call people on their racism.


DS: An upcoming DSI is going to be with a Stanford University colleague of yours, Dr. Philip Zimbardo, re: his latest book, The Lucifer Effect: Understanding How Good People Turn Evil. In that book, he goes into detail about the Abu Ghraib Prison Torture Scandal in Iraq, and his acting as a defense witness for one of the accused American servicemen. Zimbardo uses the ‘Rotten Barrel’ defense vs. the ‘Rotten Apple’ claim that is always purveyed. Do you know Zimbardo on campus? What did you think of his book and legal arguments? What relevance do you see in ‘group evil’ approaches vis-à-vis racism analogies, be they for individuals in a mob psychology, or in a systemic sense?


RTF:  I actually took a psychology class from Zimbardo when I was a college student.  He’s a fabulous psychologist and offers striking insight into the way decent people will do terrible things.


DS: A few years back I co-hosted an Internet radio show called Omniversica. On one show we spoke with a poet named Fred Glaysher, who- in arguing with my co-host Art Durkee, claimed that, in art, change does not come until some giant- or great artist, comes along, and buries the rest of the wannabes. It’s akin to Thomas Kuhn’s The Structure Of Scientific Revolutions. Is the same true in law and legal precedent? Is stare decisis, then, a good or bad thing?


RTF:  Bruce Ackerman of Yale Law School writes of Constitutional moments—they are the legal equivalents of paradigm shifts.  It may not be a great lawyer—in Ackerman’s views it’s the historical events that precipitate change in the fundamental understanding of our legal norms.  We need to be open to such revision, but Ackerman’s point is also that, until there is such a moment—and they are very rare—we should respect precedent and Constitutional tradition.


DS: Some years ago, my wife and I were in the resort town of Stillwater, Minnesota, and there was some Buddhist monk convention there. It was odd, in this lily-white town, to see a bunch of barefoot bald Oriental men in flaming red and pink robes, walking around. But, as my wife and a friend of hers, who was with us, went off, I sat on a bench in a store, where three monks came in. The youngest was the only one who spoke English, and in the course of our conversation, it became apparent that monkdom was merely a family business he’d given no serious thought to. When we parted I think I left him in an existential quandary; one I’ve often wondered the result of. Is this not a pitfall an insular life- be it based on religion or ethnic apartheid? Do too many people simply go with the flow, in accepting whatever roles others have cast for them? And, how does one go about countering such?


RTF: Yes I think a lot of bigotry simply passed down the generations.  We can counteract it by shifting the social norms—through education, the media and law:  it’s harder to blindly accept the bigotry of one’s parents when much of the broader society has turned against it. 


DS: What do you feel about online websites that may post libelous material. Most (in)famously there was the Wikipedia incident with John Siegenthaler, wherein fallacious claims were made of the man, tying him to JFK’s assassination. Wikipedia seems to be the chief purveyor of this brand of Internet sciolism. Do you think that excesses like the Siegenthaler incident presage possible libel litigations that will shut down such anonymous sites like Wikipedia? And, would this actually be a good thing, one that civilizes the Wild West atmosphere online?


RTF: I think the existing law of libel can handle new media for the most part.  Websites have some responsibility to avoid publishing libelous expression, but I do think the nature of the media matter—everyone knows (or should) that Wiki sites are unreliable and need to be checked for accuracy.  Just as everyone knows lots of counterfeit goods are sold on Ebay.  I’d hope courts aren’t too aggressive in allowing lawsuits against the media: just as I can’t sue the phone company when someone slanders me on their cell phone, I’m not sure we should let people sue a website that it explicitly little more than a bulletin board for independent speech. 


DS: There are people who obsess over every little thing a writer writes. I recall the old scene in the film Annie Hall, where Woody Allen exasperates over some boob misinterpreting Marshall McLuhan, and Woody pulls out the grand man, himself, to depants the fool. Do you ever encounter folks like that, who think they know more about your work, opinions, and ideas, than you do? And how do you handle them? Do they try to dickwave over some point of legal minutia?


RTF: I try to resist this as much as possible--if they insist, say “look, you’re entitled to your opinion about the implications of what I’ve written, but you can’t tell me what I meant when I was writing it.”


DS: Let me close this interview with a couple of final questions. Has race (i.e.- your being black) been a help or hindrance in your career, or in the publication of this book? Or a wash? What does that say, pro or con? Or did being a professor balance out whatever negatives the color of your skin bore?


RTF:  I think race is less of an impediment than it has been in the past.  And yes, in my social position, race is less an issue than it is for many people: a lot of the assumptions and stereotypes people have about blacks fall away when people discover I’m a Stanford Law professor.  I don’t think I would speak of the effect of race in terms of positive and negative aspects “balancing” each other because they often work in different domains.  So I’m better able to write about civil rights because I’m black—I have more credibility than a similarly situated white person—that “helps.”   But I’m more likely to receive rude service at stores and get hassled by police—that’s a negative.  They don’t balance each other because they involve totally different situations.


DS: At this point in your life, have you accomplished the things you wanted to do? If not, what failures gnaw at you the most? Which of those failures do you think you can accomplish yet?


RTF: I’d still like to write a mystery novel, raise my kids well, learn to speak a foreign language well, live overseas for more than a month or two.  But so far, so good.


DS: What is in store, in the next year or two, in terms of books and your work?


RTF:  I’m working on the book I mentioned earlier, on the broader cultural ramifications of the civil rights movement—not only how it affected race relations, but also how it affected American society in general, mostly for the better, but in some ways for the worse too.

DS: Thanks for doing this interview, Richard Thompson Ford, and let me allow you a closing statement, on whatever you like.


RTF: Thanks for a stimulating set of questions.


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