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Is This the Last Stand of the ‘Law and Order’ Republicans?

A punitive brand of conservatism embraced by Trump and some GOP hardliners is rapidly falling out of step with public opinion.

On the seventh day of convulsive demonstrations sweeping across the United States in response to the killing of George Floyd, an unarmed black man, at the hands of the Minneapolis Police Department, George W. Bush issued an emotional statement declaring it was “time for America to examine our tragic failures.” The former president’s appeal to unity and reconciliation instead exposed a schism—not between liberals and conservatives, but within his own party.

Mark Levin, the right-wing radio host, snarled that Bush “sounds like an idiot.” Byron York, the Washington Examiner columnist, found it “remarkable” that Bush “almost completely ignored riots, violence” and civil unrest in his statement. The most telling response belonged to Fox News host Laura Ingraham, who, after taking two separate digs at Bush, retweeted a Washington Times excerpt that read: “It has been six years since the Ferguson riots put a microscope on relations between police and black communities, and despite dozens of studies, researchers say they are no closer to a consensus on the role that bias and racism play.”

To some, this anti-Bush sentiment from the right would seem misplaced. There were no direct attacks on President Donald Trump, no critiques of his administration’s response to the latest nation-roiling crisis. But that was beside the point. Conservatives weren’t angry because Bush was undermining Trump; they were angry because Bush was undermining their worldview, their core belief that police are heroes and protesters are criminals and the only tragic failure in America is a failure to respect authority.

They were angry because Bush was undermining their notions of “law and order.”

It’s a loaded phrase, one that politicians in both parties have invoked for decades—with great success—to project a certain virility to the electorate. It has recently taken on even harsher connotations in the context of Trump’s Twitter usage (10 times in just the past week) and the accompanying sentiments (threats of unleashing “vicious dogs” on rioters, and promises of, “when the looting starts, the shooting starts.”) But it has long carried a cautionary subtext: Don’t dare challenge the integrity of a justice system predicated on punishing wrongdoers, the harsher the better. Over time, this has meant fewer rehabilitative doors opened and more retributive cells slammed shut. It has meant refusing to acknowledge that anything is fundamentally amiss with the system itself; that disparities and discrimination are not the same thing, that isolated incidents of police misconduct are just that, no matter their regularity or similarities.

The Democratic Party has distanced itself from this mentality since the mid-1990s, a response to the toll on its diverse constituencies taken by “tough on crime” legislation. But the movement among Republicans has been more incremental. An infusion of libertarianism into the party’s DNA and the advocacy efforts from some major donors, including the billionaire industrialists Charles and David Koch, have begun to challenge the party’s traditional posture. The GOP, at Trump’s direction, passed a criminal-justice reform bill in 2018 that takes modest steps toward shortening federal sentences for nonviolent offenders. But even at a time when cellphone footage showing obvious police brutality has become a routine viral event, individual Republicans have remained hesitant to dig deeper into root causes of injustices plaguing black America. Confronting one bad policy is easy; tracing that bad policy to a broken institution with embedded racial inequalities is much, much harder.

Which made George W. Bush’s statement all the more extraordinary. “Many doubt the justice of our country, and with good reason. Black people see the repeated violation of their rights without an urgent and adequate response from American institutions,” he wrote. “This tragedy—in a long series of similar tragedies—raises a long overdue question: How do we end systemic racism in our society?”

It’s a question of enormous consequence. If only Bush’s fellow Republicans agreed on the premise.

“No, I do not think you can paint with a broad brush and say there’s systemic racism in the criminal justice system in America,” Arkansas Senator Tom Cotton told me last Tuesday, right around the time Bush’s statement came out. “Can there be inequality? Can there be injustices in particular cases? Yes, there can be. But I do not think you can, nor should you, paint with such a broad brush.”

This is the politically safe answer for a Republican. Just as it’s the politically safe answer to emphasize violent riots over nonviolent demonstrations. Just as it’s the politically safe answer to applaud Trump’s march to St. John’s Church and ignore (or justify) the forceful removal of peaceful protesters with chemical irritants that made the photo op possible. These were the politically safe answers provided by the vast majority of Republicans last week, on Capitol Hill and around the country.

But safe and sustainable are two different things. As with so many issues, the ground beneath the GOP has been gradually shifting on questions of racial justice. Perhaps it’s the demographic transition of the electorate, or the greater digital proximity voters have to events that long went unseen. Whatever the cause, this shift has threatened further electoral consequences for a party that is already out of step with the center on a number of cultural issues. That was before a white officer pinned George Floyd’s neck to the ground for nearly nine minutes. One thing is clear: There is nothing gradual about what’s happened since.

An NBC/Wall Street Journal poll released Sunday found that “Americans by a 2-to-1 margin are more troubled by the actions of police in the killing of George Floyd than by violence at some protest.” A survey for USA Today last week showed white Americans’ favorable impressions of police declining by double-digits week over the week. Most notably, a Monmouth poll released June 2—conducted in the days after Floyd’s killing—showed, for the first time, that a majority of Americans (57 percent) and a plurality of whites (49 percent) believe police are more likely to use excessive force against African Americans. This represents a tectonic shift in public opinion: After Eric Garner was killed by New York City police in the summer of 2014, Monmouth found that 33 percent of Americans believed the black community was more likely to be abused by police; among whites, that number was just 26 percent.

“It’s almost a sea change,” said Republican Tim Scott of South Carolina, one of three black members of the U.S. Senate. For years, Scott explained, “the response from so many well-intended people was to overlook the brutality brought to African Americans at the hands of the police. … But I look at the public’s response to this situation and it feels like the first time in my lifetime that I’ve heard law enforcement agencies coming out with strong rebukes and condemnation of the officers in Minneapolis.”

The senator added, “Without question, this is different. It feels different. It sounds different. The protesters are different. … I look out my window in Washington and see 10 protesters. Seven of them are white, and three of them are black.”

Of course, not everyone sees what Scott sees. Polling suggests that white conservatives are paying far more attention to violent riots than to peaceful protests. Most of the public statements from GOP lawmakers last week focused on the grimmest images the streets had to offer: looting, burning, beating, killing. For some Republicans, this ugliness will be the dominant takeaway from the spring of 2020, and it may well be a determining factor in how they vote this fall.

But if Scott is right—if the groundswell of outrage and empathy resulting from Floyd’s death marks an inflection point in the American racial conscience—then something more enduring is upon us. The result is a new fault line in Republican politics. On one side are the reformers who understand that the system is no longer broken only in the eyes of black and brown voters; on the other side are the traditionalists who will go to their political graves insisting that American exceptionalism guarantees American equality.

To be clear, the traditionalists are winning the intraparty battle—and they might continue to win well after Trump leaves office. But they can’t win forever. As with gay marriage and marijuana legalization, the cultural current is now running plainly in one direction.

In the short term, however, it’s the reformers who are swimming upstream. To upend generations of conservative orthodoxy will require more than Mitt Romney marching with Black Lives Matter protesters in Washington or Steve King being cast off by the party in Iowa. It will require conceding that something is foundationally wrong with American policing. It will require acknowledging—and detailing—the existence of systemic racism in the criminal justice system. It will require shattering illusions about this nation’s basic morality. It will require provoking white Americans, daring them to identify with the agony and oppression of black Americans.

It will require proposing an end to the era of law and order politics.

Nothing threatens a politician like the perception of weakness. They can handle being viewed as corrupt, incompetent, even untruthful. But weakness is fatal. So, while the phrase “law and order” originated politically with Richard Nixon during the bloody summer of 1968, the concept of projecting muscle is as old as the office itself: from George Washington’s imposing physique, to Franklin D. Roosevelt refusing to be photographed in his wheelchair, to Teddy Roosevelt’s talk of “the strong man” in the arena, to Ronald Reagan’s fabled mantra of “peace through strength.”

It was the perceived brittleness of Jimmy Carter, of course, that invited Reagan’s 1980 victory. Eight years later, George H.W. Bush sealed the fate of Michael Dukakis with the infamous Willie Horton ad, which fed both racial fears and the narrative that his liberal opponent was “soft on crime.” After Bill Clinton defeated Bush—who was famously mocked as a “wimp”—the Democratic Party became determined to shed its frail image in the face of decades of rising crime rates. The result: the 1994 Violent Crime Control and Law Enforcement Act, authored by then-Senate Judiciary Chairman Joe Biden, a self-described “law and order” politician. He boasted that the bill—which was supported by most of the Congressional Black Caucus and would ultimately lead to wildly disproportionate racial outcomes—was proof that Democrats were just as rugged as Republicans.

“Every time Richard Nixon, when I was running in 1972, would say ‘law and order,’ the Democratic mantra, the response, was ‘law and order with justice.’ Whatever that meant,” Biden said, smirking, in a 1994 speech on the Senate floor. “And I’d say, ‘Lock the SOBs up.’”

It was the next president—a Republican—who took an unexpected detour.

George W. Bush had run for governor of Texas in 1994 “with a series of grainy black-and-white commercials depicting a man abducting a woman at gun point in a parking garage and, a moment later, a police officer draping a blanket over the woman’s body,” the New York Times reported in 1999. Noting a historic buildup of Texas prisons, the newspaper added of Bush, “an examination of his record over the five years he has been governor shows he has been consistent in pressing a law-and-order agenda.”

Bush began to soften, however, both in tone and approach, as he made the leap to the national stage. He made minority outreach a focal point of the 2000 campaign. He took ownership of the brilliantly ambiguous phrase “compassionate conservative,” which had been floating around the evangelical-Republican ether. Some of this was shrewd politics. But it was also personal. The story of the governor’s Hispanic aide Israel Hernandez being racially profiled in Iowa during the 2000 campaign—and Bush’s outrage at the incident—became legend inside the campaign. Moreover, his experience as a born-again Christian, which tied into his own tale of personal redemption after battling alcoholism, increasingly factored into Bush’s policy vision.

Breaking sharply from his predecessors, Bush’s domestic agenda did not prioritize crime. Instead, the 43rd president leaned heavily on his White House Office of Faith-Based Initiatives to enact changes to the criminal justice system. His agenda called for, among other things, dramatically increased funding for drug rehabilitation as well as enhanced programs to aid prisoner reentry.

These ideas won plaudits from the left; many liberals had since recoiled at Clinton and the Democratic Party’s record on criminal justice. The problem for Bush? His own party had no interest in looking soft on crime. “The term ‘compassionate conservatism’ ticked off conservatives,” recalled Jim Towey, Bush’s director of faith-based initiatives. “I’d go into meetings on Capitol Hill with members who didn’t have any African Americans in their districts and talk about prisoner reentry or drug treatment with them. They could not have cared less. Their eyes would glaze over, like, ‘Why are you talking to me about this?’”

Bush hoped to durably change the dogma of his party. But the events that shaped the second half of his presidency—sputtering wars in the Middle East, the government’s calamitous handling of Hurricane Katrina, a once-in-a-century economic meltdown—had Republicans feeling less than compassionate.

And things only got worse with the election of Barack Obama in 2008.

It was bad enough, Republicans complained, that Obama took an “apology tour” around the world highlighting America’s mistakes abroad. But for the president to question the very fairness of the criminal justice system—as he did in the arrest of Harvard professor Henry Louis Gates Jr., the acquittal of George Zimmerman in the killing of Trayvon Martin, and several other race-related flashpoints of the 2010s—was unforgivable. That a black president would cast suspicion on America’s core institutions was seen as inflammatory if not subversive.

“He took race back to the ’60s, as far as I’m concerned. He made everything a race issue, or at least saw it through a racial lens,” Jim DeMint, the former South Carolina senator and president of the Heritage Foundation, once told me. “The country had moved toward bending over backward to create equality. But then suddenly, with Obama, he just lit the fires. I thought when he was elected that was the big victory, that we had put racism behind us.”

That conservatives winced at notions of lingering racism in America—while so many conservatives, from the halls of Congress to the studios at Fox News, actively questioned whether this biracial man with an exotic name was American to begin with—spoke to the inherent limitations of his ability to unite America. This was all the truer on issues of racial discrimination and systemic inequality.

“Obama was right to speak from the heart about Trayvon Martin, because he was upset, and black America was upset. He was right to question the cops the way he did. But it took him leaving office for the rest of culture—namely, white folks—to catch up to where black people have been on these issues for a long, long time,” said Michael Steele, the former chairman of the Republican National Committee.

Steele, the RNC’s first black leader, served during Obama’s presidency and recalled on several occasions being asked to join the “birther” crusade—even if just as a joke. He also would encounter, time and again, basic ignorance among his white Republican friends about the black experience. Steele said for all the progress on race relations made in his lifetime, that disconnect remains.

“For black folks, especially older black folks, when they hear a white man talking about ‘law and order,’ that means get your ass in the house before dark,” Steele said. “And for the president to say, ‘When the looting starts, the shooting starts’—what the hell do you think that means to us? He knows. The man is 70-something years old. He knows what that means to us. He knows what we hear. And he also knows a white person hears something totally different.”

As president, Trump has spread these subliminal messages time and again—whether by attacking NFL players for kneeling, or by encouraging police officers to rough up suspects they arrest, or by alleging voter fraud in response to efforts aimed at boosting minority voting turnout. This is exactly what Republican voters signed up for. Part of what made Trump’s appeals to white grievance in 2016 so powerful is how it dovetailed with his anti-establishment creed. In the three years prior, every leading figure in the Republican Party had pushed a wholesale rebranding effort aimed at softening the party’s image and appealing to black and brown voters. Only by reforming immigration laws and spending time in poor neighborhoods and empathizing with the racially and economically marginalized, GOP leaders from Paul Ryan to Reince Priebus argued, could the party win national elections in a rapidly diversifying America.

With his antagonistic tone toward minorities and his overt appeals to xenophobia, Trump proved that theory wrong—for one election. The combination of soaring intensity among white working-class conservatives and diminished turnout among black voters in big cities was just enough to nudge the GOP nominee across the finish line by a combined 77,744 votes in Michigan, Wisconsin and Pennsylvania, the entirety of his margin in the Electoral College. That blueprint remains untouched. The president’s hopes for reelection rest on overwhelming support from whites and a lack of mobilization among minorities. It happened once; it could happen again.

Yet even if it does, the problems diagnosed in the GOP “autopsy” of 2013, namely the party’s failure to connect with minority voters, remain. In fact, they multiply by the day. Arizona and Texas and Georgia keep getting a little less white and a little more competitive. College-educated voters are abandoning the GOP at a record clip. Suburban women, alienated by views of sexism and xenophobia in Trump’s party, are mobilized in ways never before seen. And now, on top of all that, Republicans have to defuse another demographic time bomb: An unprecedented number of white voters are gaining awareness of racial injustice not merely as a cultural or economic issue but as a political one.

“Do white Americans feel the same pressure that black and brown families do? Do white families fear their kids will be pulled over for no reason other than the color of their skin? No. So, they’ll never relate in exactly the same way,” said Karl Rove, the GOP savant who directed George W. Bush’s winning campaigns. “But I do think they relate a lot more than they did 10 or 20 years ago. And I do think that changes the party, to some degree, moving forward.

“There will always be some hard asses on the Republican side,” Rove added. “But the days of ‘lock ‘em up and throw away the key’ are long gone. It’s just no longer sufficient.”

“Tonight I turned on the news and am heartbroken,” Nikki Haley tweeted on May 30, five days after Floyd’s killing and four days into the intensifying demonstrations. “It’s important to understand that the death of George Floyd was personal and painful for many. In order to heal, it needs to be personal and painful for everyone.”

The sentiment was not at first glance controversial. Here was a popular Republican, arguing, in the biblical tradition of loving one’s neighbor as thyself, that real progress depends on the unafflicted feeling afflicted. It was a benign cry for empathy and understanding.

But that’s not what everybody heard.

“Wait a second,” frowned Fox News host Tucker Carlson, after reading Haley’s tweet aloud on his June 1 prime-time show. “You may be wondering: How am I ‘personally responsible’ for the behavior of a Minneapolis police officer? I’ve never even been to Minneapolis, you may think to yourself. And why is some politician telling me I’m required to be upset about it?”

Carlson shook his head. “Those are all good questions. Nikki Haley did not answer those questions. Explaining is not her strong suit; that would require thinking. What Nikki Haley does best is moral blackmail.”

This was not Carlson merely settling some personal vendetta with Haley. The Fox News fire-breather also savaged other “so-called conservative leaders” during that same monologue, denouncing Vice President Mike Pence and former presidential candidate Carly Fiorina, among others, for their public remarks over the weekend. Their crime? Acknowledging the continuing scourge of racism in America.

The clip of Carlson rebuking Haley rocketed around the GOP universe. By Tuesday morning, it was the subject of obsession inside the smaller galaxy of those Republicans preparing for a run at the presidency in 2024. For some, it was reassuring, a sign that Fox News wouldn’t get wobbly even if some elements of the right did; for others, it was a shot across the bow, a clear warning that even the most casual questioning of conservative law-and-order dogma would be punished.

This represented a rare break from the crisis-of-the-moment politics. For once, this was not about the president; it was an opportunity to peer into the future, to imagine the contours of the post-Trump GOP. Win or lose, the race to take over the Republican Party will begin in earnest on November 4. Anyone hoping to do more than supplant Trump as the party’s leader—anyone hoping to win the White House—will have to thread the narrowest of needles, creating a broader, more diverse coalition without alienating the core remnant of white MAGA loyalists.

Which is what made Carlson’s commentary so striking. If he was willing to thump Haley over her call for racial solidarity, how would he and other right-wing influencers respond to a Republican presidential candidate who acknowledged institutional injustices? Who called for structural reforms to policing? Addressed the concept of white privilege? Apologized for the “original sin” of slavery that many whites insist was long ago atoned for?

Some of those Republicans have no intention of finding out.

“Too often, I think, when there’s an officer-involved death, the media and political players can be too quick to leap to conclusions … and immediately blame the police officer and immediately vilify law enforcement,” Texas Senator Ted Cruz told me last week. Floyd’s case, he argued, was unique because of the clear-cut video: “Everyone agrees what happened to George Floyd was horrific and wrong. Because of that, thousands exercised their First Amendment rights to speak out and protest not just the injustice visited upon George Floyd but also to call for”—Cruz paused six seconds—“improved protections of everyone’s rights.”

The pause, the language—everyone’s rights—was indicative of Cruz’s wariness. Despite being a Hispanic man who represents a majority-minority state, the senator has built his reputation as a tough-talking Texan, someone who wraps himself in the flag and rarely gives a rhetorical inch. Sure enough, he added a minute later, “For many elected Democrats, the words ‘institutional racism’ are simply code words for demonizing law enforcement, for blaming every cop and thinking that they’re all racists.” He then proceeded to recall how Republicans had freed the slaves and argue that his party has nothing to apologize for.

This is one view, one strategic position, maybe even one pole within the GOP moving forward. Somewhere near the other pole is Will Hurd.

Hurd is also from Texas; he is also a nonwhite Republican. But the similarities end there. Unlike Cruz, who has relied heavily on white voters and subscribes to a base-dependent theory of politics, Hurd has won three terms in a fiercely competitive majority-minority district by rising above partisan and cultural ruptures. As the son of a black man who had to endure redlining and brutal harassment in South Texas—and as a former intelligence officer with deep ties to law enforcement—Hurd has the credibility to speak candidly about both worlds. It’s a unique capacity the retiring congressman will draw upon—if, as expected, he runs for president in 2024.

“Everybody wants to be ‘tough on crime.’ Everybody wants to talk about ‘law and order.’ But what does that even mean?” Hurd said. “What ‘law and order’ needs to mean is you’re pissed that a black dude got killed in police custody and you’re pissed that people are shooting at black cops. These are not mutually exclusive emotions. It cannot be an either-or conversation anymore.”

Hurd added, “The whole reason I’m a Republican is because I believe in empowering people, not empowering the government. So, why wouldn’t we want to make sure that people have equal opportunity—and that the government isn’t interfering with that opportunity?”

There is indeed a continuum within the post-Trump Republican Party, at least rhetorically, with the likes of Cotton and Cruz at one end, Haley and Hurd at the other, and countless other contenders from Florida Senator Marco Rubio to Maryland Governor Larry Hogan drifting somewhere in between. We have some rough approximation of who believes what and how candidly they will articulate it. What we don’t know is how many more police killings of black men will occur between now and 2024—and how many it will take to provoke a real debate inside the Republican Party.

“A lot of the terms can be fraught and scary and confusing, and people want to import particular political prognoses—systemic or institutional or whatever,” said Nebraska Senator Ben Sasse, another potential 2024 contender. “I mean, obviously there’s lots of structural stuff that’s deep in America’s centurieslong original sin. It’s real, and it’s not gone. So, I’m glad that more people in my party, and my end of the ideological spectrum, are taking this stuff a lot more seriously.”

The rate at which the Republican Party takes seriously the notion of widespread racial injustice likely depends on how long Donald Trump occupies the White House. And that, in turn, depends on whether black voters are galvanized by Joe Biden—author of the crime bill and his share of racial gaffes—in a way they weren’t by Hillary Clinton four years ago.

Then again, it’s not clear that 2020 will be decided by which party does more to energize its base. Rather, it might be a question of which party does less to alienate the middle. On 16th Street, just two blocks north of the White House, a mural was painted Friday to read: “BLACK LIVES MATTER.” By Saturday, in response to a new rallying cry on the progressive left, there was an additional message: “DEFUND THE POLICE.”

Right on cue, at 9:09 a.m. Sunday, the president of the United States tweeted: “Sleepy Joe Biden and the Radical Left Democrats want to ‘DEFUND THE POLICE.’ I want great and well paid LAW ENFORCEMENT. I want LAW & ORDER!”