Let’s assume you’re a progressive disappointed with the two viable presidential candidates this November. Fair enough. But there are still reasons to support Joe Biden even if you dislike him, beginning with
Federal Judges.
This is the best way to play the political long game, and Senate Majority Leader Mitch McConnell knows it. After Republicans won a Senate majority in 2014, confirmations proceeded at a turtle’s pace. McConnell left judgeships vacant even as dockets swelled, with spots opening about twenty times faster than they were filled. By the time President Obama left office, McConnell had preserved 142 openings, including seventeen appellate court spots and a Supreme Court seat.
Obama’s successor knew their value. Candidate Trump took the highly unusual step of releasing a list—curated by the conservative Federalist Society—of potential Supreme Court picks. President Trump has fixated on appointing judges, repeatedly calling it his most essential responsibility.
With a friendly president, McConnell removed the roadblocks—and the speed limits. His Republican majority discarded the filibuster for Supreme Court confirmations, shrank debate hours from thirty to two on district court nominees, and disregarded the tradition of blue slips, whereby senators can contest lower-court nominees who reside in their states.
The runway is greased and the results are clear. As of October 23, the Senate confirmed 218 Trump nominees to the federal bench: 161 to district courts, fifty-three to appellate courts, two to the Court of International Trade, and two to the Supreme Court (with a third likely). Trump’s sky-high confirmation rate—which trails only Jimmy Carter’s—has yielded a net gain of 130 Republican judgeships.
Trump and McConnell have prioritized appellate courts over district courts, confirming judges to the former 75 percent faster than to the latter. The appellate courts are full for the first time in forty years, and about a third of appellate judges are Trump appointees. This is a conscious choice for lasting impact over case volume; while district courts terminate more cases than appellate courts, appellate courts have larger jurisdictions.
Trump’s nominees are usually younger conservatives. Neil Gorsuch was forty-nine when he was confirmed to the Supreme Court, Brett Kavanaugh was fifty-three, and Amy Coney Barrett is forty-eight. Federal judges enjoy lifetime appointments, and Supreme Court justices are joining younger and leaving older than ever before. On top of that, 85 percent of Trump-appointed judges are White and 75 percent are male, a bad sign for a judiciary already lacking in racial and gender diversity.
The result is a federal bench more likely to elevate property rights and businesses while opposing regulations and civil liberties. In the last few years, courts have handed down conservative victories on the Affordable Care Act, reproductive health care, voting rights, police abuse, asylum, green cards, the border wall, and transgender military members. The Supreme Court has regularly acquiesced to the Trump administration’s requests for relief from lower-court rulings. And its conservative justices have increasingly granted emergency motions for stays from lower court orders, which the court decides without hearing oral arguments and usually without explaining its reasoning.
The Supreme Court has spent the last fifty years ruling for corporations and wealthy people, reshaping the economy to the detriment of everyone else. If Trump is re-elected, a larger conservative majority could easily sink the Affordable Care Act and continue disintegrating the social safety net.
Trump and Senate Republicans, recognizing judges can achieve policy victories unattainable through legislation or executive action, have bolstered conservative jurisprudence. A progressive agenda cannot gain a foothold with such jurisprudence around its neck. While public attention usually gravitates toward Supreme Court justices, there are more than one hundred federal courts and nearly seven hundred judgeships that can affect progressive change. Shifting these courts requires patience, planning, and persistence.
Given America’s entrenched two-party system, Biden is the only viable candidate for progressive voters seeking to mold those courts; he has already pledged to appoint the first female Black justice to the Supreme Court. Biden can ensure more liberal nominees and lay the groundwork for a federal bench more receptive to progressive policies, especially if he’s aided by fifty or more Democratic senators.
In the same vein, Biden would also appoint scores of people to
Federal Agencies.
In 2018, Yoshitaka Sakurada admitted to the Japanese national legislature that despite his post as cybersecurity minister, he had never used a computer. The revelation astounded opposition lawmakers and the public, with one Twitter user joking that Sakurada’s Luddite tendencies perfectly immunized him against hackers.
It’s laughable when it happens on the other side of the world. But in the United States, where our Environmental Protection Agency (EPA) is run by a former coal lobbyist who took over for a coal-advocating lawyer, we haven’t earned the right to poke fun.
It’s easiest to split Trump’s mismanagement of the federal bureaucracy into three parts: the positions he hasn’t filled, the ones he’s repeatedly turned over, and the ones he’s filled with unqualified people.
There are 133 Senate-confirmable positions for which Trump has not named a nominee. His administration has modified succession policies within agencies to cheat its way around federal statute and the Senate’s constitutional responsibility to confirm nominees. This illegal tactic shirks oversight and yields slow, ineffective leadership.
Two-thirds of key positions in the Department of Homeland Security remain unfilled. Secretary Kirstjen Nielsen resigned in April 2019; Trump still has not nominated her successor, leaving the position open longer than any cabinet position ever has been. The Government Accountability Office recently ruled that the acting leaders have been doing their jobs unlawfully for more than a year, meaning that all of their actions—including a mass crackdown on racial justice protests in Portland—risk being struck down in court. It’s already started happening.
Even when Trump fills positions, they seldom stay filled. A whopping 91 percent of senior staff and adviser positions have seen turnover during his term; 39 percent have turned over twice or more. He’s lost more cabinet secretaries than his three predecessors combined—all of whom served two terms.
But Trump has wrecked the bureaucracy most by eviscerating democratic principles and appointing unqualified people. Initially, the consensus was that he couldn’t handle the vast bureaucracy, and many officials thought they could protect their institutions from him. But they miscalculated. They didn’t realize that Trump would effectively wage war on a bureaucracy that he thought owed him personal loyalty. Appointees were increasingly chosen on that basis, while qualified, experienced career officials were punished, co-opted, or pushed out.
He has weaponized law enforcement agencies to ensure his safety. After he fired FBI Director James Comey over the Russia investigation, he chased out Acting Director Andrew McCabe with a storm of personal attacks and concocted smears. Many career officials in the Department of Justice left because they could no longer stand to defend his actions. Attorney General William Barr, who has long advocated an expansive view of presidential power and executive privilege, has emphasized protecting Trump.
One in fourteen of Trump’s political appointees is a lobbyist, including fossil fuel lobbyists at the EPA and climate deniers at NASA. When the former Boeing executive he’d appointed to lead the Defense Department resigned, Trump replaced him with a former Raytheon lobbyist. To lead the Department of Health and Human Services, he appointed a former pharmaceutical company president. By appointing lobbyists who oppose the regulatory missions of their agencies, Trump shows how little he respects the institutions.
By contrast, Biden has consistently expressed respect for civil servants and scientists, and has pledged to listen to and empower them if elected. And given that he’s planning a massive pandemic response driven by stimulus spending, relief for Americans, and green enterprises, he’ll need to do just that. As gridlock pervades Congress, the policymaking of federal agencies remains a vital extension of presidential power. Biden can, at the very least, appoint regulators who don’t oppose the missions of the agencies they lead. And given how much of an outlier Trump is in terms of cabinet and senior staff turnover, a Biden administration would likely be more stable.
But of all the people Biden will need to execute his plans, none is more essential than his
Vice President.
Be it the seventy-four-year-old Trump or the seventy-eight-year-old Biden, the next president will be the oldest ever, and thus the most susceptible to death or disability. Add in that Biden may not run in 2024 if his health becomes an issue, and the vice presidency has never been more crucial.
So let’s break down the running mates.
As governor, Mike Pence suspended Indiana’s resettlement of Syrian refugees. He limited access to abortion, reinstated a mandatory minimum drug law, and allowed businesses to discriminate against LGBTQ customers. He gutted public health spending and banned needle exchanges, precipitating the largest HIV outbreak in state history. As head of the White House Coronavirus Task Force, he downplayed the pandemic, said it would end soon, promoted falsehoods, and helped muzzle the speech of government scientists and public health officials.
It’s difficult to know where Pence’s bigotry ends and his sycophancy begins, but some conservative analysts think he would provide a similar ideology to Trump without the chaos and drama, meaning he could accomplish more. Not exactly progressives’ best bet.
Kamala Harris certainly has problematic parts of her prosecutorial record, particularly regarding policing, the death penalty, and school truancy. And yes, she is not as progressive as Elizabeth Warren, who Biden was supposedly considering.
But her prosecutorial record includes plenty of progressive changes that other California district attorneys have since adopted. She tried marijuana sales as lesser offenses, fought the trafficking of young girls, and formalized a youth court that emphasized restorative justice and not felony prosecution. It’s also important to remember that as a woman of color in law enforcement during a tough-on-crime era, she arguably did not have the same luxury of progressive ideological purity that her White primary contenders did.
In the Senate, Harris has shown a much stronger progressive bent. She has voted with Warren 96 percent of the time and Bernie Sanders 93 percent of the time. She co-sponsored legislation to introduce Medicare for All and gun control measures; she also sought to decriminalize marijuana at the federal level. And her representation as a relative progressive and as the first woman of color to hold the job could embolden grassroots progressive action.
Biden expanded the role of the vice president more than anyone else. He spent more time with the president, attended more meetings, met with more legislators, and was assigned major domestic and foreign policy projects. As such, he is likely to afford Harris plenty of responsibility, especially with regard to managing the pandemic and resulting economic crisis.
But the most important reason to cast your ballot for Biden is
The Alternative.
In the interest of this section not stretching into the great beyond, I’ll condense the most grotesque, horrendous developments of Donald Trump’s presidency into a top five.
#5: Separating immigrant families and detaining children
While immigrant families were separated at the border before 2017, most were paroled into the country or detained together while their cases resolved. A few months into the Trump administration, the accelerated separation of children from their parents became a sadistic tool to dissuade desperate families from seeking refuge in the United States.
In 2017 and 2018, the Department of Homeland Security separated more than eight thousand families, though wildly inconsistent DHS record-keeping means the true number, likely much higher, may never be known.
Children were kept in metal cages. Many were not allowed to wash themselves, and some became ill amid filthy conditions. They faced intense trauma, fear, and feelings of abandonment. The older children who stepped up and took care of the younger ones were more adult than the guards, some of whom mocked or sexually abused them. In one facility, hundreds of children were caged for a month without adequate food and water.
The administration met public pressure with lies. Then-DHS Secretary Kirstjen Nielsen claimed there was no policy of family separation, then repeated the lie to Congress. Trump blamed Congress, the courts, previous administrations, and even Democrats for his own policy.
The administration leveraged children to force migrants to leave. Border agents lied to migrants, pressured them to consent to their own deportation, and used suspect allegations of gang activity to separate families. DHS’s horrendous tracking and record keeping slowed reunification, which DHS had no public protocol for. It didn’t come close to meeting court deadlines and hundreds of parents were deported without their children. And the administration admitted to splitting hundreds of families after a federal judge ordered otherwise.
This election is a choice between Joe Biden and a man who ripped children from their parents.
#4: Federal crackdown on protests
As the lynching of George Floyd drove Americans into the streets to protest systemic racism, President Trump undermined them at every turn. He demonized them, using the actions of a rioting few to tarnish public perception of the peaceful majority. He advocated using federal force on protesters, admonishing Democratic governors and mayors who didn’t do so.
And then came Portland, where Trump deputized a little-known agency of building guards, supplemented it with DHS officers, and turned it into federal riot police. Officers in military gear and gas masks brandished flaming smoke cans and fired tear gas. Unmarked police snatched protesters off the streets and placed them in unmarked vans, often without telling them why. This was not, as Trump claimed, “a great job.” It was kidnapping. Trump violated the wishes of local officials and the First Amendment rights of protesters, proving how little value he places on free speech.
This election is a choice between Joe Biden and a man who thinks violent crackdowns on peaceful protests are a sign of strength and not of overwhelming systemic failure.
#3: Undermining elections
Before the 2016 election, Trump said he would accept the result only if he won. Even when he did win, he falsely claimed that millions of people had voted illegally. This year, not only has Trump again refused to say whether he’d accept a loss, he has claimed that voting by mail is fraudulent (it isn’t) and favors Democrats (it doesn’t). And he floated the idea of delaying the election.
In a year where more people will vote by mail than ever before, Trump admitted that he was blocking funding and assistance to the post office to sabotage mail-in voting. This came as the post office slowed delivery by cutting costs and not paying employees overtime, destroying mail-sorting machines, and removing mail collection boxes.
While the Trump campaign did not collude with Russia in 2016, a Republican-led Senate report found that the campaign’s incompetence was the reason, not a lack of willingness. Russia launched a massive cyber campaign to sway the election in Trump’s favor, and the Trump campaign was eager to use Russia’s assistance. The campaign had so many Russian contacts that it posed a counterintelligence risk, and it tried to conceal its behavior from the Senate.
But the worst of it came in 2019, when Trump leveraged military aid to pressure the Ukranian president to investigate Biden and his family. Trump, who had publicly declared his willingness to illegally accept electoral assistance from a foreign government, admitted to the whole thing. He couldn’t fathom that he’d done anything wrong.
This election is a choice between Joe Biden and a man who doesn’t believe in fair elections.
#2: Lying
Kellyanne Conway’s infamous invocation of “alternative facts” two days after Trump’s inauguration was a forecast of what the next few years would hold.
Trump has lied or misled the public more than twenty-two thousand times during his presidency, an average of seventeen times per day. He has contributed more than any other person to the debasement of truth in the public sphere.
Deliberative, representative democracy functions only when the voting public recognizes facts. Every time Trump discredits a journalist, researcher, or scientist, every time he lies and obfuscates, every time he spreads misinformation without verifying it, he makes a factual baseline less attainable.
This election is a choice between Joe Biden and a man who lies on principle.
#1: Pandemic Response
There was a plan.
The Bush and Obama administrations refined disease tracking and penned detailed, prescient playbooks. Our military excels in logistics and our scientists lead the world in many fields. We had strong scientific and public health ties to China, with observers in Chinese cities. We were the de facto coordinator of international outbreak response.
Trump squandered all of these advantages. He left the observer positions empty and pulled Centers for Disease Control and Prevention (CDC) staffers from China. Instead of assisting or collaborating with China—which could have fetched more information earlier—he called COVID-19 the “Chinese virus,” ignored the racist implications of doing so, antagonized China, and imposed a confusing, transmission-accelerating travel ban. He ignored the playbooks and announced America’s impending withdrawal from, and defunding of, the World Health Organization. He lacked the experience to direct the bureaucracy that he’d stripped of experts.
Information about COVID-19 appeared in his daily briefing by January 1, but there’s no evidence that Trump ever read them. He also declined to act in January when experts and intelligence services told him virus mitigation was needed. He peddled an unproven drug even as proof mounted that it didn’t work. He contradicted public health experts, his scientific advisers, and himself. He called for a ship to stay offshore and for slower testing to make case numbers seem better. He benched the CDC and replaced its detailed guidelines with vague ones.
He could have bought supplies and personal protective equipment (PPE) at economies of scale and distributed them instead of telling governors to “try getting it yourselves.” He could have declared a national emergency before mid-March. He could have modeled common-sense protections like masks and distancing instead of denouncing them as unpatriotic, egging on people protesting stay-at-home orders, and holding rallies. He could have pushed companies to mass-produce PPE, ventilators, and tests instead of forcing meat-packing plants to stay open and shielding them from safety-related lawsuits.
By the time Trump announced guidelines on March 16, the United States had a higher rate of COVID-19 cases and deaths than any other nation, with communities of color hit hardest. Experts estimate that had Trump implemented mitigation measures just one week earlier, 60 percent of American deaths would have been avoided. Instead, he proved that our government has a single point of failure, that preparation and structure are worthless in the hands of an incompetent commander.
This election is a choice between Joe Biden and a man who let more than one hundred thousand Americans die through negligence.
And so . . .
Lament the two-party system if you like. You have excellent reason to, and if you live in Massachusetts, North Dakota, or Alaska you can help by approving ranked-choice voting this election.
But for now, voting for anyone other than Biden only splits liberal voters and elevates Trump. Progressive principles, intentions, and moral convictions are useless in the hands of a president who despises them.
Granted, it is hard for White people to tell people of color to vote for Biden if they, with reason, lack faith in government institutions. And yes, Biden is unlikely to deliver systemic change for oppressed and marginalized groups.
But a false equivalency cannot be drawn. While the modern Democratic Party has not always been the greatest advocate for people of color, the Republican Party has spent the last half-century refining its pitch and policies to appeal to White voters at the expense of appealing to everyone else. Look no further than the McCloskeys, who were invited to speak at the Republican National Convention after brandishing guns at peaceful Black Lives Matter protesters.
This election is not simply a choice between progressive and regressive. It’s a choice between competence and incompetence, between public service and active malice. Biden must be backed, not reluctantly but wholeheartedly.
