The Economist - USA (2022-01-15)

The Economist January 15th 2022 United States 21

D

emocratsareaccustomedtofeel-

ingsofdespairabouttheincreas-

inglyconservativeSupremeCourt.Butin

thelowercourtsPresidentJoeBidenand

SenateDemocratshavewastednotime

fillingthefederalbench.The 40 judges

confirmedsofararethemostatthis

pointina president’sfirsttermsince

RonaldReagan,andmorethandouble

themarksetbyDonaldTrumpinhisfirst

year.MrTrumpfilledthejudiciarywith

young,conservativejudges,confirming

almostasmanytotheappealscourtsin

hisonetermasBarackObamamanaged

intwo.MrBidenisreshapingthejudicia-

ryina moreprogressivedirection.

Thishasdependedoncloseco-oper-

ationwiththeparty’sleaderintheSen-

ate,ChuckSchumer.Alongwithanambi-

tiouslegislativeagenda,MrSchumerhas

prioritisedpreciousvotingtimeonthe

Senatefloorforjudicialappointments—

oftenattheexpenseofconfirmingexec-

utive-branchofficials.A focusoncourt

vacanciesinstatesrepresentedbySenate

Democratshasensuredfewerobjections

fromRepublicansincommittee.

MrBidenhasalsoelevateda farmore

diverserangeofjudgesthanhisprede-

cessors.Hehasalreadypromotedmore

blackwomentothefederalappellate

courtsthananyotherpresident—after

MrTrumpdidnotappointa singleblack

judgefora federalappealscourt,thefirst

full-termpresidentnottodososince

RichardNixon.Fully80%oftheappoint-

edjudgesconfirmedarewomen.Re-

searchsuggeststhatsuchgenderand

racialdiversityislikelytoleadtodiffer-

entjudgmentsonaffirmativeaction,

workplacediscriminationandmore.

Thejudges’backgroundsalsomarka

breakwiththepast.Fordecades,the

surestpathtobecominga federaljudge

wastofirstbea prosecutorora partnerat

amajorlawfirm.MrBiden’sappoint-

mentshaveincludedmorepublicde-

fendersthanthoseappointedinthefirst

yearsofhisfourimmediatepredecessors

combined.Justoneconfirmedcircuit-

courtjudgeisa formerprosecutor.

Thisreflectstheturnamongrank-

and-fileDemocratstowardsa more

lenientstanceoncrimeinrecentyears,

anda beliefthatjudgeshavebeentoo

friendlytoprosecutors.Publicdefend-

ers,theyhope,willbringa different

perspective.“Havingsomebodywhohas

foryearsstoodside-by-sidewithpeople

whoareoftentimesintheworstmo-

mentsoftheirlives,that’sanexperience

noteveryonecanbringtothebench,”

arguesGeoffBurkhartoftheNational

AssociationforPublicDefence.

WithelectionsloominginNovember,

anda possiblelossofcontrolinthe

Senate,timeisnotinDemocrats’favour.

JohnCollinsofGeorgeWashington

UniversitysuggestsMrBiden,himselfa

formerchairoftheSenateJudiciary

Committee,iskeenlyawarethatthose

appointedtodaywillshapethelawfor

yearsafterheleavesoffice.A judgeinher

30scanbeexpectedtoserveforovertwo

decadesbeforeretiring.Unlikehisrecent

predecessors,however,MrBidenhasyet

tosecuretheultimateprize:theappoint-

mentofa SupremeCourtjustice.

Biden’sjudges

Filling the courts

WASHINGTON,DC

MorediverseappointmentsaresettoreshapeAmerica’sjudiciary

Schumerina hurry

senators. Between them Josh Hawley of
Missouri, Marco Rubio of Florida and,
above all, Ted Cruz of Texas have delayed or
blocked dozens of nominations, whether
to posture or to extract concessions on va-
rious foreign-policy demands. Democrats
can force confirmations by a full vote in
the Senate, but that takes up scarce floor
time when they have domestic priorities,
such as appointing judges (see box).

It is hard to assess how much damage is

being done by the diplomatic vacancies.

Much business is conducted directly be-

tween foreign ministers or leaders. Other

officials can take up the work. But however

professional, a chargé d’affaires running

an embassy often lacks the clout that

comes with being the president’s chosen

ambassador, endorsed by the Senate. It is

possible that some foul-ups, such as the

failure to tell France last summer about the

us-British deal to provide nuclear-po-

wered submarines to Australia, pushing

out a French contractor, was thanks to poor

co-ordination resulting from the absence

of senior appointees.

A bipartisan investigation into the ter-

rorist attacks of September 11th 2001 found

that delays in appointing key personnel to

national-security positions had contribut-

ed to America’s failure to prevent them. At

the time just over half of the most impor-

tant national-security personnel were in

place. Two decades on, the ppsreckons, Mr

Biden had just over a third of the equiva-

lent staff in their jobs.

In many countries, the prolonged dip-

lomatic vacancies are an irritant, or a

slight. They feed the perception of Ameri-

ca’s withdrawal, if not decline. Mr Biden’s

failure even to name an envoy to Ukraine

reinforces its worry of being kept at arm’s

length. Perhaps Vladimir Putin has read

matters similarly. The Biden team wants to

signal that he has not forsaken Ukraine, or

the security of Europe. But without ambas-

sadors his reassurance is harder to con-

vey—and may sound less convincing. n

Schools out

Classes cancelled

G

iven theway the fight had been pro-

ceeding, it ended in a whimper. On Jan-

uary 10th a stand-off between Chicago’s

teachers’ union and its mayor, Lori Light-

foot, escalated to personal insults. Jesse

Sharkey, the union’s president, called Ms

Lightfoot “relentlessly stupid”. She re-

sponded by calling him a “privileged,

clouted white guy”. Hours later, the teach-

ers agreed to go back to work, bringing to

an end a nearly weeklong strike over co-

vid-19 safety fears. The city stuck to its

terms, but agreed to increase testing and

supply more kn95 masks.

Across America, more than 5,000 pub-

lic schools, about 5% of the total, switched

to remote learning for one or more days

during the first week of January due to co-

vid-19. It is a controversial call. The case for

cancelling in-person learning was stronger

early in the pandemic. “We didn’t know

what we didn’t know,” says Michael Hino-

josa, superintendent of the Dallas Inde-

pendent School District in Texas, whose

schools are now open for in-person learn-

ing. Without a vaccine and consistent miti-

gation measures, teachers and pupils were

at risk. But prioritising health over educa-

C HICAGO AND WASHINGTON, DC

Many schools are closed to in-person

learning, against pupils’ best interests