MIDWAY THROUGH his recent budget speech to Congress, President Bush announced that he had asked attorney general John Ashcroft “to develop specific recommendations to end racial profiling.” The practice, he continued, “is wrong and we will end it in America.” Two days later Ashcroft held a press conference to announce how he meant to fulfill the president’s directive. Whereupon representative John Conyers — a prominent member of the adamantly anti-Bush, anti-Ashcroft Congressional Black Caucus — praised both Bush and Ashcroft. The sponsor of legislation aimed at curtailing racial profiling, the so-called “driving while black” bill, Conyers applauded the president for “stepping up on the subject” and the attorney general for “moving on it.” The American Civil Liberties Union, mean-while, issued a press release supporting the effort.
This is how the Bush administration has entered the civil rights arena: from a portal on the left, to the praise of usually implacable foes, and with little comment from the right. Ending racial profiling is not what one would have expected to be the first civil rights initiative of a Republican administration. After all, the principal critics of racial profiling have been the Democratic party and its racialist allies, like Al Sharpton. Ending racial preferences in federal programs, or stepping up prosecutions of criminal civil rights violators, would have seemed a more likely Republican choice. By taking aim at racial profiling, Bush is altering his party’s approach to civil rights. The question is, to what end?
Bush personally became an opponent of racial profiling in late 1999 during a campaign visit to a small Iowa town where a large number of Hispanics lived, drawn by jobs at a new meat processing plant. “We had heard,” says a Bush aide who was on the trip, “about Hispanics being stopped by police because they were Hispanic” — because, that is, local police used ethnicity as a proxy for an increased risk of criminality. The issue was driven home for Bush when the police stopped one of his campaign’s advance men, who was Hispanic. Bush was upset and resolved to oppose racial profiling. While he didn’t mention the issue in his stump speech, he left no doubt where he stood when it came up during the second presidential debate. “I can’t imagine what it would be like to be singled out because of race and stopped and harassed,” he said. “That’s just flat wrong, and that’s not what America’s all about. And so we ought to do everything we can to end racial profiling.”
The issue assumed new urgency in the wake of the election. For many reasons — Bush’s emphasis on inclusion, his rejection of racialist rhetoric, his record of improved education for minorities in Texas, even his ability to speak Spanish — the Republican candidate had seemed to have a better chance than usual of attracting minority votes. But Democrats engaged in virulent race-baiting and polarizing demagoguery, and a minority voters, blacks especially, were aroused against him. Indeed, Bush won only 8 percent of the black vote, less even than Bob Dole’s 13 percent in 1996. The protracted endgame in Florida only worsened blacks’ perception of Bush, thanks to repeated (though dubious) charges of disenfranchisement of black voters. With polls capturing “a sharp racial divide” in the country, the president-elect resolved to close it.
Bush’s inaugural address revealed a key element of his strategy. “While many of our citizens prosper,” he said, “others doubt the promise — even the justice — of our own country.” Here Bush was reflecting how those “others” see things, climbing into their shoes. “He was recognizing,” says a White House official, “that there are still significant differences in the way African Americans and whites view the world, and that’s not good for the country.” Bush said he wouldn’t accept this state of affairs and pledged “to build a single nation of justice and opportunity.” His initiative against racial profiling — which affects blacks more than any other group — is a means toward that end.
In Ashcroft, Bush selected for attorney general someone who shares his opposition to racial profiling. Ironically in light of the civil rights groups’ fierce opposition to Ashcroft, his position on the issue may have been a key factor in Bush’s decision to nominate him. During his press conference, Ashcroft said he had talked with Bush about racial profiling “from the very first conversations” the two had about the job of attorney general.
For Ashcroft, the issue is a familiar one. In the Senate, as chairman of the Judiciary subcommittee on the Constitution, he took an interest in legislation introduced by senator Russell Feingold. The bill, similar to the House bill pushed by Conyers, directed the attorney general to conduct a nationwide study of traffic stops to determine the extent to which race determines who is stopped. Ashcroft wasn’t particularly active as a subcommittee chairman, but on this subject he held hearings. “For him to say to Russ Feingold, let’s do this together, that says something about his interest,” notes a former Hill staffer. Ashcroft was particularly struck by the testimony of a black man who, while driving with his 12-year-old son, had been stopped twice by police on account of his race. The second time they searched his car to the extent of drilling holes looking for secret compartments and left the man and his son stranded on the side of the road.
Now, Attorney General Ashcroft has called on Congress to pass a bill like Feingold’s and Conyers’s. He has also begun a review of the nature and extent of any racial profiling by federal law enforcement agencies.
Where all of this will lead is hard to say. If the legislation is too prescriptive about what state and local agencies may do, it will conflict with the administration’s concern for federalism, already noted by Ashcroft. Should “ending racial profiling” hit such a legislative impasse, Conyers and company could cast Bush and Ashcroft as insincere. Certainly the administration will have a hard time keeping pace with former critics who now offer praise.
For the time being, the most intriguing aspect of the administration’s initiative is not the politics behind it but the legal theory. In most cases, the Supreme Court has held that a racial classification by government must pass the “strict scrutiny” test — that is, it is constitutional only if there is a compelling reason for it and it is narrowly tailored to achieve its goal. Until now, racial profiling has been one of the exceptions, subjected to less demanding tests. But Ashcroft, an aide told me, rejects this. He thinks racial profiling “is fundamentally at odds with strict scrutiny. . . . Even if it is a compelling state interest,” said the aide, “[it] isn’t narrowly tailored.”
The implications of this position are, so to speak, arresting. One of the big questions about racial profiling — not yet addressed by either Bush or Ashcroft — is whether law enforcement officers should be required to report by race those they stop or search. This is now being debated in Texas, where the state’s ranking traffic officer, expressing a view common among those in law enforcement, recently told the Dallas Morning News: “We can’t ask [a law enforcement official] to say, ‘Well, I’ve searched five whites and I’ve searched four blacks, so I can’t search any more blacks.’ We don’t want them to break it down that way. We want them to treat everybody the same.” Ashcroft’s view that racial profiling itself is unconstitutional would seem to resolve this issue — against forcing officers to report by race.
Will Ashcroft find a case in which he can advance the proposition that racial profiling should be subjected to strict scrutiny, which has almost always proved fatal to racial classifications? And will constitutional law, as a result, become more colorblind? We’ve got almost four years to find out.
Terry Eastland is the author of Ending Affirmative Action: The Case for Colorblind Justice (1996).
