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. His several books include The Persistence of the Color Line: Racial Politics and the Obama Presidency.

Recent Articles

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...

The Bush Court

Four of the nine justices currently on the Supreme Court are at least 65 years old. Chief Justice William Rehnquist, the last of the Nixon appointees, is 75. Justice John Paul Stevens, a Ford appointee, is 79. Justice Sandra Day O'Connor, a Reagan appointee, is 69. Justice Ruth Bader Ginsburg, a Clinton appointee, is 66 and recently underwent surgery for colon cancer. One cannot, of course, be definite here. Thurgood Marshall served for a decade after many observers thought that poor health would force him to resign. And one does not wish to be funereal. Still, the next president will almost certainly appoint three, maybe even four, justices to what is now a closely divided Supreme Court. He or she will thus significantly shape the course of federal constitutional law for the first several decades of the new century. A turnover of only one or two seats could have major repercussions across a wide range of areas including abortion rights, affirmative action, and the place of religion...

Confirmation of Dishonesty:

The Senate confirmation hearings on the proposed appointment of John Ashcroft as attorney general offered little respite from a season of political bad news. First, it seems clear now that, barring some unforeseen last-minute development, Ashcroft will be confirmed. This alone would be bad enough -- a conjoining of fearsome power with reactionary politics. The Office of the Attorney General makes all manner of crucial decisions regarding the administration of justice that are beyond the power of the press, the Congress, the White House, or the courts to oversee effectively on an ongoing basis. And John Ashcroft, despite his sudden amiability and professed concern with protecting the rights of all Americans, is a militant, indeed truculent, right-winger. He is hostile to women's rights over their reproductive capacities and hostile to the aspirations of gays and lesbians who seek equitable treatment. He is friendly with anti-black bigots such at the authorities at Bob...

Orphans of Separatism: The Painful Politics of Transracial Adoption

Liberals' misguided efforts to respect race may harm children -- and deepen racial intolerance.

N o issue more highlights feelings of ambivalence over the proper place of racial distinctions in American life than the delicate matter of transracial adoptions. Opponents of such adoptions insist that allowing white adults to raise black children is at worst tantamount to cultural genocide and at best a naive experiment doomed to failure. In most states, custom reflects and reinforces these beliefs; public policy, formally or informally, discourages cross-racial adoptions or foster placements, to the point where thousands of children are denied placement in loving homes. Now one of the Senate's leading liberals is compounding the damage with a well-intentioned but badly misguided bill titled the Multiethnic Placement Act. Senator Howard Metzenbaum of Ohio sees his bill as a deft compromise. On the one hand, the bill prohibits state agencies or agencies that receive funds from the federal government from completely barring or unduly delaying transracial child placements, either for...

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