Randall Kennedy is Michael R. Klein Professor at Harvard Law School where he teaches courses on contracts, criminal law, and the regulation of race relations. He was born in Columbia, South Carolina. For his education he attended St. Albans School, Princeton University, Oxford University, and Yale Law School. He served as a law clerk for Judge J. Skelly Wright of the United States Court of Appeals and for Justice Thurgood Marshall of the United States Supreme Court. . He is a member of the bar of the District of Columbia and the Supreme Court of the United States. Awarded the 1998 Robert F. Kennedy Book Award for Race, Crime, and the Law, Mr Kennedy writes for a wide range of scholarly and general interest publications. His most recent books are For Discrimination: Race, Affirmative Action, and the Law (2013), The Persistence of the Color Line: Racial Politics and the Obama Presidency (2011), Sellout: The Politics of Racial Betrayal (2008), Interracial Intimacies: Sex, Marriage, Identity, and Adoption (2003), Nigger: The Strange Career of a Troublesome Word (2002), The Persistence of the Color Line (2011) and For Discrimination: Race, Affirmative Action, and the Law (2013). A member of the American Law Institute, the American Academy of Arts and Sciences, and the American Philosophical Association, Mr. Kennedy is also a Charter Trustee of Princeton University.
On January 20, 2009, when Barack Obama assumed the presidency, the overwhelming majority of African-Americans cheered and prayed for him. His inauguration was a signal moment in black history, reminiscent of the celebrations that accompanied the Emancipation Proclamation, Joe Louis’ victory over Max Schmeling and the March on Washington. Irma Brown-Williams traveled to the inauguration from Tuskegee, Alabama, wearing a coat on which she had pinned photos of her mother, father and siblings, all of whom were deceased. Asked to explain, she said, “I’m here for them. … They could not be here, so I brought them with me.” Against the backdrop of such exhilaration and triumphalism, an emotional downturn was inescapable. It has come to pass. For many, the passion has cooled. For some, the thrill is gone.
Obama swept into office with a reputation as an intellectual politician with vision. Part of the reason had to do with his memoir, Dreams from My Father, his campaign book, The Audacity of Hope, and a March 18, 2008, address, “A More Perfect Union,” in which he explained his relationship with the Rev. Jeremiah Wright, the Chicago preacher who had denounced the status quo in memorably inflammatory fashion: “God Damn America!”
The speech was immediately celebrated, with some likening it to Abraham Lincoln’s Gettysburg Address or Martin Luther King Jr.’s “I Have a Dream” speech. These gushings were a vivid symptom of Obamamania. For in fact “A More Perfect Union” is not a speech for the ages; it was simply a tactical intervention aimed at quelling whites’ discomfort about Obama’s long association with a radical, left-wing minister. In neither its rhetoric nor its analysis nor its prescriptions did the speech offer anything beyond a carefully calibrated effort to defuse a public relations crisis. “In the end,” Obama declared, “what is called for is nothing more, and nothing less than … that we do unto others as we would have them do unto us. Let us be our brother’s keeper. … Let us be our sister’s keeper. Let us find that common stake we all have in one another, and let our politics reflect that spirit as well.” Fine banalities that could have been voiced just as easily by Mitch McConnell.
Still, many listeners discerned in the speech a desire and ability to grapple in an innovative fashion with the unfinished business of racial justice. Obama said, after all, that the subject of race was too important to ignore and implicitly promised to confront it if he won the presidency.
He has not. He has avoided the subject assiduously. And when he has addressed it, he has typically done so only obliquely. “Trayvon Martin could have been me 35 years ago” and similar signature musings over the Obama years do not explain much, do not promise much and do not tell us where we should go from here. For many African-Americans, he has been a hero—but also a disappointment. On critical matters of racial justice, he has posited no agenda, unveiled no vision, set forth no overarching mission to be accomplished.
Take criminal justice. Nothing in the day-to-day lives of black Americans is more menacing than their vulnerability to criminality on the one hand and mistreatment by police on the other. Yet on neither front has Obama focused the attention of the nation. Oh, yes—there was the “beer summit.” In his first term, the president suggested that a police officer in Cambridge, Massachusetts, had acted “stupidly” when, after investigating a report of a possible burglary, he arrested a black man, Henry Louis Gates Jr., the Harvard professor who owned the house to which the officer had been dispatched. Obama expressly refrained from attributing a racial motive to the officer’s action. But many commentators nonetheless saw it that way, which fueled a fierce reaction against Obama. He backpedaled quickly, invited the officer (and Gates) to the White House for a beer and abandoned any further discussion about the matter of black Americans’ interactions with police in particular and the criminal justice system more generally. This was painful to witness. In the words of Glenn Loury, an economist at Brown University who wrote a 2008 book on the racial politics of incarceration, the president’s performance was “depressing in the extreme.”
The conspicuous disproportionality of blacks in handcuffs, jails and prisons is an urgent matter. In 2010, the imprisonment rate for blacks was 4.6 times that of whites—a greater magnitude of racial disparity than in almost any another arena.
This is not to say the president has done nothing. The Obama administration played a key role in persuading Congress to pass the Fair Sentencing Act, which reduced somewhat the penalties associated with possessing or distributing crack cocaine, drug crimes that were punished with peculiar harshness and that ensnare blacks disproportionately. (In 2006, 82 percent of offenders under federal anti-crack cocaine laws were black, while only 8.8 percent were white.) But the president virtually hid himself away when he signed the legislation on Aug. 3, 2010, and he has said little to educate the public regarding the larger question: Are racial disparities in stops, arrests, prosecutions and imprisonment more a function of racial discrimination by the authorities, or are African-Americans simply more engaged than others in criminal misconduct?
Or take affirmative action. For middle-class blacks, policies that favor racial minorities in competition for scarce opportunities in employment and higher education are of critical importance. At the most elite law schools, for example, withdrawing racial affirmative action would decimate the number of black students present; their number would fall from 8 or 9 percent to as low as 1 percent. But affirmative action is under increasing pressure from commentators, voter initiatives and court rulings (in April, the Supreme Court affirmed the power of state electorates to rescind affirmative action through referenda). Obama’s Justice Department supports affirmative action in little-publicized briefs and in the arguments of the solicitor general. But the president has declined to offer his own view of the controversy, in his own voice. George W. Bush set forth a definite position—against affirmative action in the form of quotas. So did Bill Clinton—in favor. Yet Obama is virtually mute.
Or take unemployment. Early in his administration, the president strongly rejected demands by black lawmakers that he specifically target black joblessness, given its peculiarly pronounced and stubborn presence. “I can’t pass laws that say I’m just helping black folks,” Obama replied. The president “tries to describe our challenges in ways that are inclusive,” his senior adviser Valerie Jarrett later explained.
On that, Obama seems to have changed his mind in recent months. “We need to spend some time in thinking about how do we bolster and reinforce our African-American boys,” he said last July. In February, he returned to this theme, announcing My Brother’s Keeper, an interagency task force aimed at “creating and expanding ladders of opportunity for boys and young men of color.” The president was moved to do this, he said, because of the “persistent gaps in employment, educational outcomes and career skills” that so strikingly and destructively set young men of color apart from their white peers. The president’s apparent reversal raised the question: If race-targeted policy is appropriate for the My Brother’s Keeper initiative, why is it not appropriate more generally? He has offered no explanation.
Disappointing, too, is the president’s limp pushback against the Republican Party’s campaign to restrict voting. Thirty-four state legislatures have succeeded in requiring, or are attempting to require, prospective voters to show documents that authenticate their identity. Passed ostensibly for the purpose of combating voter fraud, the real purpose behind these laws is to suppress voting among certain sectors of the electorate, including, rather obviously, racial minorities, a key Democratic voting bloc. Yes, the Obama Justice Department is resisting this malevolent campaign of disenfranchisement, challenging these new restrictions with what is left of the Voting Rights Act after its maiming by the Supreme Court last June.
But absent here too, is much of the president’s own upraised voice. Lyndon B. Johnson rallied public opinion against disenfranchisement a half-century ago. When he announced the proposal that became the Voting Rights Act, he invoked the anthem of the civil rights movement: “We Shall Overcome.” Why can’t Obama muster some passion of his own? He has repeatedly lauded the heroics of Rep. John Lewis and the other activists who dramatized the need for legislation in the 1960s. Yet today, with that same legislation confronting new perils, the president remains largely quiet.
SOURCE: Politico Magazine – Randall Kennedy