On confirming (or not) Biden’s non-judicial nominees

After the 2016 election, Republicans controlled the White House, the Senate, and the House. In theory, President Trump should have been able to have his nominees confirmed by the Senate fairly promptly. However, Senate Democrats, despite being in the minority, managed to block the confirmation of key nominees throughout the federal bureaucracy.

For example, my friend Eric Dreiband was blocked from becoming Assistant Attorney, Civil Rights Division until November 2018. The same thing happened to Jeff Clark, whom Trump nominated to be Assistant Attorney General, Environment and Natural Resources Division. And the nomination of Janet Dhillon as EEOC Chair languished for two years.

But Eric, Jeff, and Dhillon were fortunate compared to the Trump nominees who never even got to the floor for a vote. For example, Diana Furchtgott-Roth, nominated in September 2017 as Assistant Secretary for Research and Technology at the Department of Transportation, was never confirmed for that position.

Senate Republicans shoulder some of the blame. For example, Sen. Cory Gardner blocked Trump’s DOJ nominees for a while because he was unhappy with Jeff Sessions over marijuana policy. This bit of pandering to marijuana interests didn’t help Gardner retain his Senate seat, but it held back the confirmation of Eric, Jeff, and several others for some months.

However, the main blame for the snail’s pace at which Trump nominees were confirmed lies with the obstructionist tactics of Democrats. Thus, the obvious question is whether Republicans should return the favor in a Biden administration.

It’s clear to me that, at a minimum, Senate Republicans should obstruct Biden’s non-judicial nominees to the degree that Democrats obstructed Trump’s. (I discussed judicial nominees in a previous post). There can’t be one set of procedures and practices for confirming nominees of Republican presidents and another set for confirming nominees of a Democrat.

The real question is whether, assuming Republicans keep control of the Senate, they should be more obstructionist than the Dems were during the past four years.

I think they should be. After all, the Democrats were a minority in the Senate. To anyone who was paying attention, it’s undeniable that, had the Democrats been in the majority, they would have confirmed very few Trump nominees.

On the other hand, it would be unfair and anti-democratic to deny a president the ability to fill top level positions in federal departments and agencies with people from his party. If the U.S. is heading down that road to dysfunction, let it be the Democrats who take us there.

Accordingly, I believe Republicans should be more obstructionist than the Democrats had the power to be during the Trump administration, but less obstructionist than the Dems would have been had they possessed the power the GOP likely will have now.

What does this mean in practice? I think it means that Republicans should completely block radical nominees, e.g. Elizabeth Warren and Stacy Abramas, assuming they are able to do so. Less radical nominees should be held up the way so many of Trump’s nominees were, but ultimately they should receive a vote. With a vote, they likely will be confirmed with the help of Susan Collins, Lisa Murkowski, and maybe others.

It might be argued that Senate Republicans should be more inclined to confirm the likes of Warren and Abrams than to confirm non-radicals. The idea would be that the further left the Biden administration takes the country, the more unpopular it will become.

To me, this is an irresponsible position. Republicans should never facilitate left-wing governance.

Nor is it clear that Joe Biden’s popularity depends on eschewing hard leftism. I think it depends more on how the economy performs and on other material conditions (like public health, national security, war and peace). The American economy is capable of a good run even with leftist governance, at least in the short run. If it has one, Biden or his Democratic successor has a good chance of winning in 2024.

So my recommendation is that the Senate GOP block radical Biden nominees and slow walk the rest of them.

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