President-elect Joe Biden has begun nominating officials to his cabinet, and like clockwork, Republican senators have responded by registering objections to some of these nominees in nakedly bad faith.
That is: Republicans don’t contend Biden’s nominees are unqualified or secret extremists, or that they should be barred from government service for past bad deeds. They instead claim to oppose or have reservations about confirming these nominees on grounds they plainly don’t believe to be disqualifying.
Many of these same Republicans have refused to explicitly acknowledge that Biden won the election in the first place. Their public attacks on his nominees thus expose multiple dimensions of bad faith: They know Biden defeated President Trump but continue to mislead their Trump-supporting constituents about it; and they know Biden’s nominees are unobjectionable, but they’re intent on sabotaging his administration, and so they’re asserting insincere bases for blocking his nominees, and doing so gleefully.
The central focus of this strategy at the moment is Neera Tanden, Biden’s nominee to direct the Office of Management and Budget, but Republicans have hinted that they will apply the strategy more broadly, arrogating Biden’s appointment power for no good reason, and dictating to him who they will allow to serve in his administration. Biden should respond to this dilemma not by caving to his bad-faith tormentors, but by doing whatever is in his power under the law to circumvent them. And according to one of the country’s foremost experts in this area, Biden’s power will be formidable, if a bit kludgy.
We know Republican objections aren’t on the level—that they’re simply abusing their advice and consent power to harm Biden—because they aren’t trying to hide it. Their stated objections to Tanden, after four years of propping up Trump, confirming his nominees or passively allowing him to circumvent the Senate altogether, is that she’s too partisan, and tweeted a lot of mean things about Republicans.
Sen. Rob Portman (R-OH), for instance, lamented that “The concern I have [about Tanden] is both judgment, based on the tweets that I’ve been shown, just in the last 24 hours … and it’s the partisan nature. Of all the jobs, that’s one where I think you would need to be careful not to have someone who’s overtly partisan.”
Portman is defter than many of his peers, which may explain why he sought to distinguish OMB from other cabinet departments: After all, the outgoing Republican administration was shamelessly, abusively partisan, and Twitter was one of its main weapons of abuse. Republicans thus can’t easily pretend partisanship is disqualifying in general. But even Portman isn’t subtle enough to obscure his own bad faith. He voted to confirm Trump’s former OMB directors, including Mick Mulvaney, who as a member of Congress founded the right-wing House Freedom Caucus and spearheaded multiple government shutdowns and hostage crises, and Russel Vought, whom the Washington Post described as a veteran “political brawler” who’d spent 15 years “waging war against GOP leadership first as a staffer on the conservative House Republican Study Committee and later as a top official at the Heritage Foundation’s political arm.”
More importantly, though, Portman is himself a former, partisan director of OMB, who, under President George W. Bush, crafted a budget that “called for making the 2001 and 2003 tax cuts permanent, at a cost of more than $500 billion over the five-year life of the proposal…requested a hefty increase in military spending, along with reductions in low-income housing assistance, environmental initiatives, and health care safety-net programs [and] assumed that war costs would be zero by 2010.”
Portman knows there’s nothing unusual about partisan budget directors; he’s just lying about it.
Biden has thus far responded to the promised obstruction with wry detachment. He noted rightly that Republicans’ stated objections “disqualif[y] almost every Republican senator and 90 percent of the administration,” and added that, “They’re going to pick a couple of people just to fight [over] no matter what.”
He may be right that Republicans will only pick a limited number of fights over his cabinet. Republicans may also lose both January Georgia runoffs, depriving them of control of the Senate, and thus the ability to unilaterally quash his nominees. But to the extent that they object to those nominees in bad faith—and after allowing Trump to traduce the confirmation process so thoroughly—it’s incumbent upon Biden to do whatever he can within the bounds of the law to secure those nominees in their appointed positions: not because there aren’t other people who could do those jobs just as well, but to vindicate the principle that the two parties are held to the same set of rules.
Prior to her nomination, Tanden had mostly been a lightning rod within Democratic politics. She’s a protege of Hillary Clinton, and, as president of the Center for American Progress, closely associated with the party establishment. Among Bernie Sanders’s online fans, she’s arguably drawn more ire than any party figure other than Clinton herself, and has tussled publicly with party critics, including, on more than one occasion, me.
Her nomination came as a surprise to most political dweebs (including me again) but also, in most cases, as a relief. Even many of Tanden’s detractors were glad Biden nominated someone opposed to austerity, and attuned to the GOP’s feigned, situational fearmongering over deficits, rather than one of the deficit hawks reported to have been in the running.
But even those who still wish Biden had nominated someone else to run the budget office should now embrace the idea that withdrawing her nomination, bending to Republican bad faith, would be a tragic error.
Democrats can’t stop Republicans from engaging in bad faith; in many cases they may be unable to stop Republicans from voting down actual nominees based on bad-faith objections. But Biden and the party as a whole will regret it if, in Trump’s wake, he allows Republicans to set the precedent that Republicans can staff the top ranks of government with whomever they want, then hold Democratic nominees to exacting standards that apply only one way.
For instance: If Republicans block Tanden on comically disingenuous grounds, Justice Department guidance suggests Tanden could become acting OMB director after 90-days of service as the office’s executive assistant director—a position Biden could appoint her to directly.
It may be that Tanden and other nominees decide they don’t want to endure headaches like these, and withdraw from consideration voluntarily. But Biden shouldn’t ask them to do so before fighting it out. Rather, he should be willing to exhaust his options whenever he has to—particularly as Republicans begin training bad-faith opposition on other nominees.
Steve Vladeck, a law professor at University of Texas at Austin, and a leading expert in federal vacancy rules, says Biden will have a lot of theoretical leeway if Republicans don’t play fair, and if he’s inclined to maximize his statutory power.
“The question in every case is whether they can put someone in a non-Senate-confirmed position that’s high enough in the order of succession,” he told me.
Some agencies’ rules expressly place non-Senate-confirmed officials in their lines of succession; others, Vladeck said, “expressly provide otherwise.” In between, Biden could exploit ambiguity in agency succession rules to add non-Senate-confirmed positions to the back of the line by executive order. If Republicans refuse to confirm his nominees on bad-faith grounds, he could appoint them to these positions unilaterally and then fire any officials in the way.
This would be messy and out of step with the constitutional design—but Republicans left that design in tatters, and until it is restored to apply consistently to both Democrats and Republicans, Biden shouldn’t feel bound by it. “If [Mitch] McConnell will play ball, this isn’t a wise strategy,” Vladeck told me, “But if he won’t, it’s all there is.”
I’d go further still. Biden can’t expect universal deference from Republicans, but he should do all he can whenever Republicans obstruct his nominees for the sole purpose of imposing double standards on the parties.
The proposition isn’t just that Biden should get to pick the qualified team he wants. It’s that after four years of Trump, to be governed once again in good faith, he must.