Nearly five months after Alabama Republican Sen. Tommy Tuberville announced his hold on Department of Defense nominees, the tactic has become a major flashpoint within the US Senate as institutionalists inside the body are voicing concerns the hold could have long-term repercussions and are openly warning an overhaul of the nominations process could be needed.
Despite efforts from Republican colleagues, Tuberville’s been resolute, holding up the nomination of roughly 250 military nominees – many promotions that would typically be fast-tracked through the Senate. The dramatic impasse is forcing senators to openly question if it’s time for the body to consider changing the rules or at the very least limit the number of nominations that require Senate confirmation.
“Maybe we need another gang to come up with a set of rules changes, but the vast majority of us who understand these tools should be used sparingly, I think we need to raise our voices,” Sen, Mark Warner, a Democrat from Virginia, said.
The angst is bipartisan as senators are grow wary of a further roadblocks in a Senate that is already doing very little legislating in divided government.
“Are we all gonna start taking hostages now?” Sen. Lisa Murkowski, a Republican from Alaska, said.
A hold in the Senate can’t ultimately stop a nominee from being confirmed. But, it can force Majority Leader Chuck Schumer to burn valuable floor time on a process that may otherwise have moved much more quickly.
It’s a tactic that has been used in the past and escalated last Congress when GOP Sen. Josh Hawley held up Pentagon nominees for several months over the Biden administration’s handling of the US withdrawal from Afghanistan.
But what makes Tuberville’s hold more dramatic is the fact it also includes a hold on military promotions, which senators argue aren’t political nominees. In the case of Tuberville’s holds, there are now more than 250 military promotions and nominations delayed. Putting every single one of them on the floor would take months to complete. Tuberville’s move stems from his opposition to a Pentagon abortion policy.
Tuberville’s hold is far and away the most impactful in the Senate, but it’s not the only obstacle nominees are facing. Republican Sen. J.D. Vance announced in June he’d place a hold over Department of Justice nominees after Trump was indicted on federal charges, but there are only two nominees in the pipeline – both of whom were always expected to require significant floor time to be approved. Vermont independent Sen. Bernie Sanders has warned he will oppose Biden administration health nominees as he pushes the administration to do more to lower the cost of prescription drugs.
The mere optics of agency-wide opposition is becoming a major issue for senators who say it’s chipping away at Senate decorum and efficiency.
“If you don’t like someone who has been nominated then vote against them,” New Hampshire Democrat Sen. Jeanne Shaheen said. “To hold up over things is not in the best interest of the national security of the country. We’ve got all these ambassadors, general officers. Now we are talking about holding all the nominees for the Department of Justice. If you don’t want to be here and work on policy then why did you come?”
It’s not uncommon for a lawmaker to use a hold on a single nominee either because of concerns with the nominee or as a way to extract leverage from the administration, but members complain the rise in agency-wide holds is being abused and undermining the Senate’s ability to perform a core role.
“Holding up one nominee or even a short hold on a handful of nominees has been a way that senators from time to time have exercised a little leverage against an agency that wouldn’t cough up information or an administration that wouldn’t put out a report, but it has completely changed now,” Sen. Elizabeth Warren, a Massachusetts Democrat, said. “Now these are holds that are broad and in Sen. Tuberville’s case undermine our national security. That’s a kind of hell-bent on destruction that is one more sign of how broken this Congress has become.”
Delaware Democrat Sen. Chris Coons argued the uptick in agency-wide opposition is “risking further degrading the ability of the Senate to perform its essential function of advice and consent.”
Some members are so fed up they are arguing the Senate needs to look at overhauling the rules of nominations.
“One person shouldn’t be able to take an action like this. We need to look at the Senate rules to think about whether we should say it has to be at least five people instead of one person,” Independent Sen. Angus King argued.
It’s a delicate balance though. Any action that Senate Democrats take now to address Tuberville’s holds on military promotions would have to be incredibly tailored or Democrats run the risk of Republicans using their rules change in the future to speed up nominees Democrats may find controversial.
Another option would be to pass a law that allows military promotions to advance without Senate consent, but it’s not clear that would have the votes to pass. Lawmakers could also limit the number of nominees that need Senate confirmation, a process that would need bipartisan buy in.
“Do we really need deputy assistant secretaries to go through this whole process?” Warner said. “The other thing is many of these men and women who want to serve for appointed positions have to literally put their lives literally in limbo for sometimes six to 12 months.”
Sen. Chuck Grassley, a Republican from Iowa, warned that he believes in senators being able to use their leverage over nominees, but even he is worried that if agency-wide holds get used too often, it will prompt a rules change.
“We should make sure that we give each senator as much power as we can. It was meant to be that way, it’s always been that way. I just want to make sure it isn’t abused to the point where we maybe change the rules, that’s a slippery slope,” Grassley said.
For their part, senators with agency-wide holds argue it’s their prerogative to use the rules in their favor.
“Well, this group will try to change anything to make it work for them. But this is the rules. We can make a hold on anything we want,” Tuberville said.
Vance said he stands by his hold.
“I think the way that Merrick Garland has politicized the Justice Department sets a bad precedent for American justice and somebody needs to push back against it,” Vance said.
For now, Democratic leaders aren’t planning any immediate action, instead hoping that GOP leadership will find a way to talk Tuberville out of his hold.
“We’re trying everything we can think of, but most of all, we’re appealing to other Republicans who we think are reasonable to come to their senses,” Democratic Whip Dick Durbin said.