Political Animal

Biden Is About to Undo Trump’s Judiciary Project

Joe Biden’s first set of judicial nominations this week is the beginning of something big: almost certainly by the end of this Congress, the majority of lower court seats will be filled by Democratic appointees.

That may surprise you, considering the breathless coverage Donald Trump received for his four-year judicial confirmation blitz. We were constantly told he was transforming the judiciary for a generation. With Sen. Mitch McConnell’s help, the Senate became a judicial confirmation factory. Not counting the Supreme Court, Trump got 231 judges with lifetime appointments confirmed. No president got more lower court judges confirmed in a single term since Jimmy Carter.

After flipping three Circuit Courts from majority-Democratic to majority-Republican, Trump left office with 7 of the 13 appellate-level courts staffed by a majority of Republican appointments. And when counting up all of the appellate-level and district-level judges at the end of Trump’s presidency, Republicans had more: 17 more to be exact.

That’s pretty good for a one-termer. But as you can see from the above numbers, the Republican grip on the lower courts is tenuous. Just one circuit court has to flip for Democrats to hold the majority of circuits again. Just nine seats have to flip for Democrats to hold the majority of seats again.

Securing those flips shouldn’t be too hard. Despite Trump’s torrid pace, he left some judicial seats empty, and more vacancies have been announced since Biden’s inauguration. At present, the federal judiciary has 97 current and future vacancies for seats with lifetime appointments. Fifty-two of those vacant seats were last held by Republicans,

Trump was able to move faster than most presidents because the filibuster for lower court judges was nuked by Democrats in 2013 (with Republicans finishing the job regarding Supreme Court nominee in 2017). Now it’s Biden who gets to take advantage of the easier rules, so he will at least partially offset Trump’s gains.

And Trump never claimed as much a share of the judiciary as his contemporaneous media headlines suggested. His 231 judicial confirmations amounted to 27% of the available seats. Trump’s three predecessors, each being two-term presidents, got more: Barack Obama had 327, George W. Bush 326, and Bill Clinton 376. A January count from Pew Research Center gave Obama the largest number of active lower judges, with 309 still serving, or 36% of the available seats. Having eight years instead of four as president makes a big difference.

Trump was buoyed during his lone term by having a Senate controlled by his party during his entire presidency. None of his predecessors had the same luck. And we don’t know how lucky Biden will get given the narrowest Democratic control of both chambers. If 2022 is a lousy midterm for Democrats, his judiciary pace will likely slow to a trickle. And considering how much a wide pendulum swing can impact the judiciary—especially with no filibuster in the way—Democrats should hope Biden can pad his numbers when he can, making it harder for the next Republican trifecta to tilt the judiciary back to the right.

Yes, Donald Trump got three justices on the Supreme Court, strengthening the conservative majority. That’s not nothing. But every year, thousands and thousands of disputes are decided in the lower courts. Meanwhile, the Supreme Court has been taking about six dozen cases per term, giving lower courts the last word most of the time. (The federal government’s judicial website says that “the [Supreme] Court accepts 100-150 of the more than 7,000 cases that it is asked to review each year,” but a review by Ballotpedia found the Court has been averaging 76 cases per year since 2007.)

How much the titular-but-slow Supreme Court will outweigh the influence of the myriad-and-brisk lower courts will depend on how radical, or how incremental, the John Roberts majority chooses to operate. The faster and farther the Supreme Court moves, the less power is retained by the circuit and district court judges. But a politically cautious Supreme Court will let more lower court rulings stand. For example, as I’ve noted previously, the Supreme Court is showing reluctance towards taking up the Mississippi 15-week abortion ban, with time running out on the current term. Allowing the lower court ruling to stand keeps Roe v. Wadeand Planned Parenthood v. Casey in place.

Of course, no Democrat should be sanguine about what the Supreme Court might do. But we should never forget that full partisan and ideological control of the federal judiciary is elusive. By design.


Are We Getting Railroaded?

Last Monday, the sixth-largest North American railroad, Canadian Pacific, announced plans to buy the seventh-largest, Kansas City Southern, for $25 billion. If approved, this will be the largest railroad deal in nearly 15 years, creating a system that will stretch from the Atlantic to Pacific and into Mexico.

Farmers and other producers of heavy, lower-value commodities who rely on railroads to transport their products have mixed feelings about this proposal. Decades of railroad consolidation and Wall Street-driven cost cutting have diminished railway capacity and cut or degraded service, especially to small towns and rural areas. Some agricultural shippers are skeptical of any further consolidation, both from this merger and the future deals it could encourage.

Others argue that the merger may be neutral, even positive, since Kansas City Southern and Canadian Pacific’s networks do not overlap, the combined railroad would still be the smallest of six, and a new connected railway linking Canada and the Gulf of Mexico could provide a competitor to the Canadian National. But it raises the question – is more consolidation truly the best way to improve competition in monopolistic railroading?

“When you’re operating in an environment where [there are] monopolistic behaviors everywhere and at the best you may have a duopolistic set of behaviors, shippers are still operating in a consolidated environment and I just think that that presents overall concerns,” says Ann Warner, spokesperson for the Freight Rail Customer Alliance. “This merger needs to be reviewed under the utmost scrutiny as to how it could enhance competition.”

In 1980, Congress tried to save a then-ailing rail industry by cutting back on many regulations and allowing wave after wave of mergers. Deregulation allowed railroads to abandon unprofitable routes and services, while the mergers gave remaining railroads increasing monopoly power. In 1976 there were 63 major railroads operating in the U.S., and much of the industry was in bankruptcy. Today there are only seven major railroads left in North America, and they are all highly profitable. Over the same period, railroads have abandoned nearly 100,000 miles of track, leaving many cities and regions with a single monopoly carrier, or no service at all.

Large grain traders and agribusinesses are big enough to negotiate better deals and service with consolidated railroads, but smaller traders and farmers are the first to suffer from service cuts or higher rates. Grain farmers without access to river or lake barges are particularly reliant on rail. In landlocked states such as Montana and the Dakotas, where most farmers have to rely on a single monopolistic railroad, they pay twice the rate of those in areas where competition still exists.

Limited rail capacity also contributes to global climate change by putting more trucks on the highway. In 2008, the Millennium Institute estimated that a $500 billion investment in rail infrastructure could move 83 percent of long-haul trucks off the road in two decades, bringing about huge reductions in carbon emissions and other forms of pollution while also making driving safer. But because the rail industry has come under the control of hedge funds and private equity firms focused on maximizing short-term profits, these transformative long-term investments do not get made.

Instead, under pressure from Wall Street, rail capacity and service levels continue to deteriorate. The latest example comes in the form of so-called Precision Scheduling Railroading. Introduced by railroad executive Hunter Harrison, Precision Scheduling Railroading is a strategy that involves driving up short-term profits by tearing out track on secondary lines, scrapping locomotives and rail cars, and running fewer, longer trains to fewer places. By cutting their cost of business, railroads’ short-term profits go up, even as they turn away some business, lose revenue, and cut their services in the long run.

Since implementing Precision Scheduling Railroading, the third-largest railroad CSX has cut capital investment by 14 percent and eliminated more than 550 intermodal routes. Across the industry, more than 20,000 rail workers lost their jobs in 2019 alone. Resulting service and scheduling changes have upset many rail customers, but they’ve boosted stock for investors. For instance, CSX stock more than doubled between 2016 and 2019.

Against this backdrop, the recent announcement of the largest railroad merger in more than 15 years naturally raised eyebrows, particularly for agricultural shippers. “Given the fact that consolidation has resulted, at times, with an increase in rates or a decrease in service … there is a healthy degree of concern whenever you see another proposed merger within the freight rail industry,” said Mike Steenhoek, executive director of the Soy Transportation Coalition.

Steenhoek also said some agriculture shippers are worried this merger could prompt other, larger rail takeovers. “If you have one merger or acquisition that occurs, that often inspires further consolidation,” Steenhoek said. “I don’t know many agricultural shippers that would embrace the prospect of another wave of consolidation within the rail industry.”

Canadian Pacific and Kansas City Southern executives argue that this merger could increase competition in rail by providing the first single-carrier line between Canada and Mexico. This new track would compete with Canadian National, which provides continuous service from Canada to the Gulf of Mexico. A group of Canadian wheat growers and the president of the U.S. Soybean Export Council both spoke positively of the merger. Steenhoek and Warner said shippers are also weighing the benefits of more continuous service, but there is still uncertainty.

“If you have a seamless process of transporting your goods … in theory that should make it easier for the shipper, but does that necessarily mean it is going to be reliable service at competitive rates? You just don’t know,” said Warner.

The focus on connectivity can also be a red herring. Back when there were still many railroads, shorter lines often cooperated to provide faster and better service than what consolidated railroads offer today. For nearly 50 years eight separate railroads worked together to offer the “Alphabet Route,” which moved perishables like fresh meat and vegetables from Boston or New York to Chicago or St. Louis. Today, most produce companies ship by truck as railroads deprioritize these time-sensitive, higher-cost trips.

Despite decades of deregulation, the Surface Transportation Board still has a lot of authority to regulate and improve competition in the rail industry, including the power to block this merger. The Surface Transportation Board also has underused authority to adjudicate disputes between shippers and railroads over unreasonable rates or unfair terms. In cases where shippers are served by a single railroad, the board can also compel that railroad to share its tracks with other lines, thereby preserving competition.

Going forward, if Congress picks up President Joe Biden’s recent plan to pour billions of tax dollars into private rail infrastructure, it should also demand that private rail companies become more accountable to the public. This could include reinstating common carriage requirements and bans on price discrimination. Before the era of rail deregulation and monopolization, these were important public policy tools that ensured everyone who depended on railroads, regardless of size or location, could compete for service on equal terms. If we hope to get more freight off of highways and on to more energy-efficient, environmentally friendly trains, it might be time to bring those principles back.

The Visionary Politics of Nomadland

At the beginning of Chloé Zhao’s new film Nomadland, we meet Fern, a late middle-aged widow. She once worked in a US Gypsum plant in Empire, Nevada until the Great Recession drove down the need for drywall and rendered the mine obsolete. And once the factory went, so, too, did the entire town. It became so depopulated that it even lost its zip code. Now, Fern, played by Frances McDormand, sleeps in a rusty van and works a seasonal job with one of the few employers left in the area: an Amazon shipping center. It’s a common choice for fellow nomads like herself, who have adopted transient, houseless lifestyles, travelling the country in search of temporary work. On her lunch break one day, another Amazon worker shows Fern a tattoo on her arm: “Home, is it just a word? Or is it something that you carry within you?”

On the surface, it’s easy to think of Nomadland as a work of ethnography. Based on Jessica Bruder’s 2017 nonfiction book of the same name, the film has many of the same subjects playing themselves: Bob Wells, who preaches to nomads about the spiritual dimensions of homelessness; Swankie, a cancer-stricken free spirit with only months left to live; and Linda May, Fern’s caring and soft-spoken best friend. Fern is one of the movie’s few fictional characters.

But Nomadland is much more than an exploration of a unique subculture. It offers a rare and sympathetic vision of what’s happening to the American working class in the deindustrialized heartland. Unlike J.D. Vance’s flawed Hillbilly Elegy, and so many other accounts like it, this film does not blame the victims for their own downward mobility. It doesn’t point to bad habits (drugs and laziness), bad morals (racism and Trumpism), or bad attitudes (toxic masculinity and perverted Christianity). Instead, it shows humble men and women who don’t scapegoat others and who manage to preserve their dignity and, to a large extent, their own personal freedom in the face of systemic forces that are exploiting them.

The backdrop of the entire narrative is a subject familiar to readers of this magazine: the hollowing out of middle America and the growing regional inequality that stems, in large part, from the U.S. economy being concentrated by fewer and fewer corporations and thus in fewer and fewer places. It’s a reality that has left wide swaths of the country, like northwest Nevada, out to dry.

As Phil Longman and Daniel Block have documented, the rise of corporate monopolies since the 1980s has led to a clustering of growth in coastal metro areas and a staggering decline virtually everywhere else in between. And, as Alex MacGillis lays out in his new book Fullfillment: Winning and Losing in OneClick America, Amazon’s dramatic expansion has itself been a driving force behind regional inequality. The e-commerce giant creates high-paying jobs in places like Seattle but destroys jobs in most other parts of the nation while paying its warehouse workers, like Fern, next to nothing. At the same time, it has curried favor with local governments, extracting lucrative tax incentives that come at the expense of local public service. In that stark economic environment, characters like those in Nomadland emerge. No wonder they want to seek out the open road.

In an early scene, Fern’s friend Linda—the protagonist of Bruder’s book—encourages her to visit an Arizona desert rendezvous where she meets Wells and a community of nomads. There, she learns the self-sufficiency skills needed to survive—not the least being how to use a bucket as a toilet. She’s also introduced to the ethos behind the counterculture. Wells explains that most Americans “not only accept the tyranny of the dollar, the tyranny of the marketplace,” but that they embrace it. “The way I see it is that the Titanic is sinking and economic times are changing.” Wells says. “And so my goal is to get the lifeboats out and get as many people into the lifeboats as I can.”

The film then follows Fern as she travels the mountain west, working odd summer jobs near the Badlands of South Dakota: She cleans grease off the grill at Wall Drug, she takes up a gig at a beet processing plant. At one point, she meets David, played by David Strathairn, who tries to woo her but can never quite earn her romantic affections. He keeps inviting her to join him at the next spot. Maybe she will, Fern tells him, but won’t commit.

A turning point comes when Fern’s van breaks down. It will cost her thousands of dollars to fix, so she takes a bus to see her sister in California, whose husband works in real estate. Sitting in the backyard, he brags that the housing market is starting to recover from the financial crash. “Seems like real estate always ends up on the upside.” Then, for the first time in the film, Fern releases her pent-up anger and resentment. “I don’t wanna disagree with you, but I have to say I do,” she says. “It’s strange that you encourage people to invest their whole life savings, go into debt, just to buy a house they can’t afford.” In other words, Fern, who has been decidedly restrained throughout the film, finally voices a protest against the unregulated capitalism that destroyed her hometown and created her plight. She says out loud what her actions say even louder. In the next scene, her sister lends her the money, telling her she’s the “bravest and most honest” member of their family.

Afterword, Fern gets the van fixed and drives to the coast to visit David, who has reunited with his family after his grandson’s birth. It’s clear, though, that he’s given up the nomadic life and plans to stay with them permanently when Fern says his van has a flat tire. He hasn’t even noticed.

After a warm and festive Thanksgiving Dinner with David’s family, he invites her to stay, too. She can sleep in a guest house, he tells her; he’s already asked everybody else. The next night, however, the bed is so soft, Fern can barely stand it. She drives off in the morning before anyone is awake.

Just as Fern escapes the cliché of letting the handsome man domesticate her, Zhao’s film avoids the clichés of the formerly middle-class, mostly white Americans she’s depicting. None of them blame Black people or immigrants or the left-wing media for their problems. They simply refuse to play by the rules of an economy that has decimated their old lives.

Many of the central characters are propelled into a nomad existence through their own personal loss. Toward the end, after Fern has completed yet another seasonal stint at an Amazon warehouse, she returns to Wells’ Arizona campsite and speaks in a seminar-like gathering he leads. She tells the group about her close bond with her late husband, who died around the same time the gypsum plant shuttered.  “He loved Empire,” she says. “He loved his work so much. He loved being there. Everybody loved him. So I stayed. Same town, same house. It’s like my dad used to say, ‘What’s remembered lives.’” Then, in a poignant moment, Wells explains that he can relate to her. That day would have been his son’s 33rd birthday, but five years earlier, he committed suicide. “One of the things I love most about this life is that there’s no final goodbye,” he tells Fern. “You know, I’ve met hundreds of people out here and I don’t ever say a final goodbye. I always just say, ‘I’ll see you down the road.’”

It’s no accident, then, that Fern then goes back to Empire to dispose of the belongings she’s been keeping in a storage unit and visits the old mine and her old house. Her home, at this point, is dilapidated and falling apart. After walking through the inside, she steps onto the front porch overlooking the vast Nevada landscape, with her body silhouetted inside the frame of the doorway. It’s a shot that mimics the final one in John Ford’s 1956 film The Searchers, after John Wayne returns Natalie Wood to the Jorgensen ranch, his journey ending how it started—with him alienated and alone, once again kept out of the community.

Ironically, Wayne’s character, like Wayne himself, embodied the stereotype often associated with the white working class: a terrible racist with retrograde notions of patriotism and manhood. Fern, and the rest of the characters in Nomadland, are the exact opposite. They are people who possess quiet dignity, decency, and stoicism in the face of structural forces grinding them down. They don’t turn to fascism. Rather, they remind us that maybe, just maybe, there is still a democratic future for the country.

Bill Burns’s CIA and the Roads Not Taken

William Joseph Burns is probably the most anticipated new CIA boss to arrive in Langley since, well, George Tenet in 1997.

The agency’s hardest core former operators have been gushing about Burns since President-elect Joe Biden tapped him in January to run the battered spy agency—an unusual toss of bouquets from the dark side to a career diplomat, to say the least.

“Amb. Burns is an inspired choice,” tweeted Douglas London, a former senior CIA operations official. “Not an intelligence practitioner but a sophisticated consumer with whom the CIA worked closely” on the Iran nuclear deal and Libya.

Marc Polymeropoulos, a former senior CIA operations officer who worked in the Middle East and against Russia, called Burns “a titan of the foreign policy world, very well respected overseas.” As ambassador to Russia and assistant secretary of state for the Middle East under George W. Bush, and deputy secretary of state under President Barack Obama, Polymeropoulos said Burns “knows the intelligence community. Field officers really liked him.” London added that Burns “will have a voice with the President.”

That’s good. The question is how Burns will use it when the next great crisis presents itself, over China, Russia and/or Iran, as surely, they will. Will Burns buckle under White House political pressure, like, well, George Tenet did when the decision to invade Iraq was in the balance in 2002? Or like DCI Richard Helms, who played his cards so close to his vest on Vietnam that he might as well have had no cards at all, giving the game to the hawks?

Tenet and Helms were deeply respected inside the building and across Washington—until they weren’t. When the most momentous questions of their tenure landed on their desks, they failed to tell truth to power. They settled on political calculations, which preserved their viability with the White House but opened the door to foreign policy calamities memorialized on rows of white headstones in Arlington National Cemetery.

Bill Burns is so deeply regretful for his own lapses in regard to Iraq that there’s reason to believe he’ll stand up to any trigger-happy politicos lurking in the Biden administration. He called his 2019 memoir “a story of the road not taken…a story of forever wars from which we are still trying to disentangle ourselves, of the ways in which we accelerated the end of America’s moment in the Middle East and of our singular dominance of the wider international landscape.”

He heaps blame for Iraq on himself. “It’s a story of my own failure to do more to prevent a war that we did not need to fight,” he writes in The Back Channel: A Memoir of American Diplomacy and the Case for its Renewal.

He and his State Department allies knew that a U.S. invasion of Iraq virtually alone, without the kind of 35-nation coalition President George H.W. Bush assembled to oust Saddam Hussein’s forces from Kuwait in 1990-1991, ”would prove to be a massive foreign policy blunder.

“We did not, however, argue frontally against the bipartisan policy of eventual regime change—a goal we had inherited from the Clinton administration—nor did we argue against the possible use of force much further down the road to achieve it,” Burns writes. “Instead, sensing the ideological zeal with which war drums were beating, we tried to slow the tempo and point debate in a less self-injurious direction.”

There would be no loud protests or resignations over principle for him. Burns and his team wrote a memo, instead, on a “Perfect Storm” in the offing, forecasting a typhoon of miscalculations that would shatter Iraq and strand U.S. forces in a hostile landscape spanning from Syria to Iran.

“What we did not do in ‘The Perfect Storm’ … was take a hard stand against war altogether, or make a passionate case for containment of Saddam as a long-term alternative to conflict. In the end, we pulled some punches, persuading ourselves that we’d never get a hearing for our concerns beyond the secretary if we simply threw ourselves on the track. Years later,” he writes, “that remains my biggest professional regret.”

Burns signaled during his confirmation process that honesty and transparency would be hallmarks of his tenure, a rare trait over recent decades of deception in the agency’s dealings with Congress and the public on issues like “enhanced interrogation techniques” on counterterrorism suspects. (“I believe the CIA’s former enhanced interrogation program included torture, which violates U.S. commitments and obligations,” he told the Senate Intelligence Committee.)

Yet in written responses to the panel’s questions, he gave himself some wiggle room on coming clean when he heard an administration official telling lies.

“If I became aware that a senior administration policy official or their spokesperson had made a public statement that I later learned was not supported by, or contradictory to, available intelligence, I would consult with that official and suggest ways to correct the public record unless doing so would risk disclosing sources and methods.”

And if the official objects? I have a feeling that Burns, who’s well familiar with the back door access to power in Washington, will find a way to flank an official bending intelligence to build a case for a military confrontation with, say, Iran. In the meantime, as an architect of the Iran nuclear deal, serving a president committed to getting it back on track, Burns needn’t worry much about hawks outside of QAnon-Republican circles getting much traction.

Burns made a similar commitment to truthiness if he or a CIA underling uttered a misleading statement.

“If I became aware that I or another CIA officer had made a public statement that I later learned was factually inaccurate, I would take action to correct the public record unless doing so would risk disclosing sources and methods. To the extent the erroneous statement was made to Congress, I would take appropriate steps to inform Congress about the correction,” he said.

That’s a good start. There’s many a reason for optimism about a new day at the CIA, especially after the battering it took under Trump and his minions. Burns may have never hoisted a cloak or dagger, but he arrives in Langley with the distinction of being a longtime consumer of CIA intelligence: He’s seen garbage, and he’s seen gold.

“I served alongside them in hard places around the world,” Burns told the intelligence committee. “It was their skill at collection and analysis that often gave me an edge as a negotiator; their partnership that helped make me an effective ambassador; and their insights that helped me make thoughtful choices on the most difficult policy issues.”

“Thoughtful choices” is a good standard. Acting on them is the hard part, and nobody knows that more now than Bill Burns.

This piece originally appeared in SpyTalk, the Substack edited by the author