Randall Kennedy

Randall Kennedy has been a contributing editor of the Prospect since 1995. He is the Michael R. Klein Professor of Law at Harvard University and is completing a book on race relations and the Obama presidency.

Recent Articles

State of the Debate: The Case Against "Civility"

Can't we all just get along? Not when "civility" is just a genteel way to mask the inevitable tensions and antagonisms of democratic society.

Many people believe that we are in the midst of what Stephen L. Carter calls a "civility crisis." Judith Rodin, the president of the University of Pennsylvania, calls it a "nuclear explosion of incivility." Newspapers and magazines publish articles with titles like "Civility in Politics: Going, Going, Gone" ( New York Times ) and "Whatever Happened to Good Manners?" ( Washington Post ). And even public opinion polls report that between half and three-quarters of the public believes that incivility is a serious social problem. People think of a wide variety of virtues when they speak of "civility" and of a correspondingly broad assortment of sins when they refer to "incivility." Civility typically connotes courtesy, respectability, self-control, regard for others—a willingness to conduct oneself according to socially approved rules even when one would like to do otherwise. For many it means treating one's antagonists with a modicum of respect (even if one abhors them). Incivility...

In Extremis

T he confirmation of John Ashcroft as attorney general conjoins fearsome power with reactionary politics. The attorney general makes crucial decisions regarding the administration of justice that are beyond the power of the press, Congress, the White House, or the courts to oversee effectively on an ongoing basis. And Ashcroft, despite his sudden amiability and professed concern with protecting the rights of all Americans, remains a militant--indeed, truculent--right-winger. He is hostile to women's reproductive rights and to the aspirations of gays and lesbians who seek equitable treatment. He is friendly with antiblack bigots, such as the authorities at Bob Jones University --and friendly, too, with the fanatical wing of the gun lobby. The Ashcroft hearings were suffused with deception. The strategy behind Ashcroft's "confirmation conversion" from fundamentalist tribune to restrained public servant is clear: Say what you must to gain enough votes for...

Lani Guinier's Constitution

Guinier's critics were only half right. She is a political radical--but no quota queen. As a constitutionalist, she was neither separatist nor undemocratic. She would have gotten along nicely with James Madison.

W hen President Clinton abandoned Lani Guinier, she became the latest in a string of jilted appointees dumped once controversy arose. Guinier, who was nominated as head of the Justice Department's civil rights division, was a respected civil rights lawer, legal theorist, and Friend of Bill, whom she has known since their days at Yale Law School. Why ultimately did he abandon her nomination? What in her writing as a University of Pennsylvania Law School professor prompted such bitter opposition? Did the president err in nominating her-- or withdrawing her nomination? What is the meaning of this affair in the ongoing struggle for the soul of the Democratic Party? A hard-nosed political calculation best explains why Clinton dumped Guinier: he believed that he stood to lose less by abandoning than supporting her. Other considerations--personal, accidental, and ideological--also played a role. Clinton has shown that, unlike Presidents Reagan and Bush, he has no strong sense of attachment...

Contempt of Court

T he U.S. Supreme Court's intervention into the presidential election was and is a scandal. Five right-wing justices used the flimsiest of pretexts to block the Florida vote recount. Chief Justice William Rehnquist and Company are typically unmoved by alleged Equal Protection Clause violations (except when the plaintiffs are whites charging so-called reverse discrimination). In George W. Bush et al. Petitioners v. Albert Gore, Jr., et al., however, they created a new right to uniform treatment in ballot counting. Typically, these conservative justices insist that every benefit of the doubt be accorded to state judges interpreting state law. Indeed, they are usually so deferential to state judges that they have been willing even to countenance the executions of prisoners rather than encroach even a bit on the perceived prerogatives of state courts. In Bush v. Gore, however, Rehnquist, Justice Antonin Scalia, and Justice Clarence Thomas asserted that the Florida Supreme...

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