In the early days of his administration, President Biden has emphasized his plan to fight the coronavirus and return American life to its pre-pandemic normal. He’s promised to push to get more vaccines out and to reopen schools.
But doing so relies on executive cabinet agencies which currently don’t have secretaries. The Senate has not confirmed half of Biden’s cabinet secretary nominees. At the one-month mark of his presidency, six of Biden’s cabinet heads have been confirmed, putting him behind the eight that Trump, who faced a historically-slow confirmation rate, had by the same point.
The question is: is this a problem? Short-circuiting government by refusing to approve the opposition’s nominees is something that’s been tried repeatedly by minority parties in the past few decades. And this kind of partisanship, which promotes tyranny of the minority, is something the Founding Fathers feared. But, on the other hand, rubber stamping political appointees seems to default on the responsibility the Constitution gives the Senate. So, is Biden a victim of partisan hostility or are current cabinet vacancies just another example of the frustrating but essential plod at which American government moves?
It’s easy to put this delay down to intransigence from Republicans bitter over the most recent election, but part of this delay is due to the timing of Trump’s second impeachment trial. The Senate rules for impeachment trials dictate that once articles of impeachment are delivered, it must convene every day (except for Sunday) by 1 pm to consider the charges. It is compelled to do this until it votes either to acquit or convict.
It is chiefly because of the impeachment trial that confirmation hearings have been delayed. And Democrats chose the timing of impeachment; the House of Representatives voted to impeach Trump while he was still in office and Majority Leader Nancy Pelosi chose to sit on the articles of impeachment, delaying the start of the Senate trial, until February.
Biden’s inability to direct policy is therefore largely a problem of Democrats’ own making. And that makes it distinct from the roadblocks faced by Trump at the beginning of his presidency. The chaos of his early administration was due in part to the fact his transition team was largely made up of Washington outsiders who were ill-prepared to make the transition to government. But Democrats slow-rolled the nomination process of many of his cabinet secretary picks, even going so far as to boycott votes of nominees they particularly disliked. Senate Democrats opposed eight of Trump’s cabinet nominees and succeeded in forcing Andy Puzder, whom Trump had nominated to head the Department of Labor, to withdraw his name from consideration.
When it came to executive branch nominees, Democrats also set precedents for intransigence. By the end of March 2018, 78 of Trump’s executive branch nominees, having already received approval from the appropriate committees, still had not received a confirmation vote from the Senate. While most executive branch nominees traditionally pass on unanimous votes, Democrats invoked cloture an unprecedented number of times, which requires 30-hours of floor debate before the Senate can vote and move on to new business.
This context is important because Democrats are already beginning to paint bipartisan opposition to some of Biden’s nominees as sexist and racist. Neera Tanden, the former head of far-left think tank Think Progress, looks unlikely to be confirmed as head of the Office of Management and Budget thanks to Sen. Joe Manchin’s (D-WV) announcement that he would not vote in her favor. Even though Manchin and Republicans have based their opposition to Tanden in past controversies (she once called Mitch McConnell “Voldemort” and accused Bernie Sanders of receiving aid from China during the 2016 presidential campaign), Democrats have accused them of being motivated by sexism and racism.
But Democrats can’t have it both ways. If their opposition to many of Trump’s nominees was valid, then opposition of Biden’s nominees can’t just be waved away as bigotry.
Andy Puzder’s entire life was laid out before the Senate while he was being considered; this included evidence of his ex-wife making allegations of domestic abuse, which she later withdrew, and scandal surrounding his employment of an undocumented worker as a housemaid. If these personal scandals, as well as allegations of unfair labor practices made by employees of Hardee’s and Carls’ Jr. (Puzder was the chief executive officer of the company that owned these chains), are grounds for legitimate debate (and many of them are), then Tanden’s past controversies are, too.
There’s certainly bound to be GOP opposition to Biden nominees on partisan grounds. And that which is motivated by reflexive tribalistic desire to hobble the other party’s ability to govern needs to be disavowed. Trump’s nominees were absolutely treated unfairly. But outrage at this fact should not drive a tit-for-tat exchange for vengeance that sees Senators set aside their responsibility to govern. Not only does it not benefit the people Congress is meant to serve, but it makes it easier for Democrats to shout partisanship at any opposition thrown in their way.
But, so far, there’s little evidence that this is what’s motivating opposition to nominees like Tanden, whose ideological extremism and personal misconduct has drawn criticism from both sides of the aisle.
Ever since Democratic activism denied Robert Bork a place on the Supreme Court, confirmation hearings have become increasingly partisan. And it can be difficult to sort out political hit jobs from genuine exercises in oversight. But bipartisanship is perhaps one of the biggest bellwethers: members of the majority party, particularly moderate members, rarely have an axe to grind against those nominees that have the endorsement of their party leaders.
Understanding what kind of opposition amounts to legitimate concern over the fitness of a nominee to lead an agency and what amounts to partisan intransigence is important because the Senate’s confirmation power is not a rubberstamp; it’s oversight. And it’s not the same kind of oversight that’s provided by committees formed within Congress’ chambers. That’s internal and ultimately subject to change by Congress. The Constitution makes the Senate accountable by giving it the responsibility to confirm various executive and judicial appointees.
It’s up to the Senate to live up to this responsibility: to ask questions that speak to whether a nominee would faithfully live up to the responsibilities of the office they wish to hold. Senators are charged with upholding the Constitution; it’s part of their oath of office. They should carry this out by ensuring executive branch nominees ultimately not answerable to the people show the same commitment.
And that means the confirmation process shouldn’t move too quickly. It means invoking cloture on an increasing number of nominees isn’t inherently a problem.
Debate is good. The Senate, after all, is the deliberative body.
But this debate needs to be substantive. Senators need to resist the temptation to use the process to vent their partisan frustrations. Unfortunately, there’s no Constitutional mechanism that can ensure Senators follow their better instincts. As the Founders themselves noted, government is given life by individuals, whose will are not perfect. Otherwise, government would not be needed. While there are no guarantees, the best measures that can be taken to ensure proper oversight is done and substantive deliberation occurs is for the American people to stay involved and make their voices known. This may be messy; it may be contentious. But it’s ultimately in the best interests of the greater American public.