Biden’s First Cabinet Confirmation Snags

Policy

Neera Tanden speaks at a hearing with the Senate Committee on the Budget on Capitol Hill in Washington, February 10, 2021. (Anna Moneymaker/Pool via Reuters)

Generally speaking, the Senate should be willing to give the president the cabinet he wants. But that doesn’t mean that the Constitution’s assignment of a power to advise and consent on key appointments should be treated as a mere formality. Some presidential appointees are just bad choices that the Senate should reject, and deciding where to draw that line is a matter of judgment that should reach beyond simple partisan loyalties.

Senators have usually been pretty good about finding a reasonable balance on this front. Most cabinet nominations get confirmed, and many are confirmed with bipartisan support. That’s still true, even in these very partisan times. Seven of President Biden’s cabinet nominees have been confirmed so far (the secretaries of State, Defense, Treasury, Transportation, Homeland Security, and Veterans’ Affairs, and the Director of National Intelligence), and most by large bipartisan margins. The only close call was for Alejandro Mayorkas at DHS, who only got 56 votes. The next closest — Antony Blinken at State — wasn’t close at all, he got 78 votes. Everyone else got more than 80. Lloyd Austin at Defense got 93 Senate votes.

But pretty much every president gets denied a cabinet pick or two. And it looks like Biden’s first failed nominee may well be Neera Tanden, his choice for director of the Office of Management and Budget. Tanden has long been a policy wonk and political strategist in what you might call the Hillary Clinton wing of the Democratic Party. She worked for the first lady in Bill Clinton’s White House and in the Senate, was policy director of her 2008 presidential run, and then worked in the Obama administration, particularly on health-care policy. She has been president of the Center for American Progress, a progressive think tank, since 2011.

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On the face of it, Tanden’s nomination looks doomed because she attacked various senators on Twitter in recent years — including Susan Collins, Ted Cruz, and Mitch McConnell. This was the reason that West Virginia Democratic senator Joe Manchin gave for opposing her nomination. And with Manchin opposed, it seems unlikely that any Republican will step up to back the nomination. In a 50–50 Senate, that means she won’t have the votes.

But Tanden is also intensely despised in some progressive circles, and especially among Bernie Sanders supporters. Some of that is personal, and some is continuing resentment of Hillary Clinton by extension. When Tanden’s name was first floated for OMB, Politico quoted longtime Sanders strategist Kurt Ehrenberg saying: “It’s like putting Chelsea Clinton in the office. She’s clearly not a friend of the Sanders wing of the Democratic Party.” There is surely some kind of book to be written about how an intense aversion to Hillary Clinton among both voters and political professionals has shaped American politics in this century, helping to boost Barack Obama, Bernie Sanders, and Donald Trump in key moments.

Obviously, it takes a special kind of chutzpah for Republican senators to argue after the last five years that misbehavior on Twitter should disqualify someone for public office, but we already know that Republican senators possess a special kind of chutzpah. And I have to say that the professional world I inhabit would surely be done some good if think tankers of all varieties had to confront the notion that calling people names on social media might someday result in being denied Senate confirmation for something. That message would be good for our political culture in general, even if it is for many a cynical move.

And yet I’m ultimately ambivalent about Tanden’s nomination, less because of Tanden (who gives any Republican senator a lot to oppose) than because of the job she has been chosen for. The notion that the president should basically have the advisers he wants applies with special force to the director of the Office of Management and Budget. In fact, I don’t think the OMB director should require Senate confirmation at all. The post is essentially a White House job. The OMB director is a presidential staffer who reports to the president’s chief of staff, attends each morning’s senior staff meeting, and participates in the internal processes of White House decision-making alongside other senior advisers. The job is one of a small number of positions within the Executive Office of the President that require Senate confirmation, and I don’t think any of those should.

The position of OMB director (and its predecessor position, director of the Bureau of the Budget, created in 1921) did not require Senate confirmation until 1973. That changed in the course of a much broader fight between Congress and the Nixon administration about the president’s authority over spending. After a particularly nasty round of inter-branch warfare, Congress passed a bill in May of ‘73 eliminating the jobs of OMB director and deputy director and then recreating them as Senate-confirmed positions. The immediate aim of the bill was to essentially force the dismissal of Roy Ash, the OMB director who was then serving, and who had aggressively advanced ideas about presidential impoundment of appropriated spending that members of both houses and both parties intensely opposed. Ash had disrespected members of both houses, but Congress’s response was nonetheless out of line.

President Nixon vetoed the bill, saying in his veto message that the legislation “would require the forced removal by an unconstitutional procedure of two officers now serving in the executive branch. This step would be a grave violation of the fundamental doctrine of separation of powers.” The Senate overrode his veto, but the House lacked the supermajority to do it. So Congress then passed another bill requiring Senate confirmation for those jobs in the future, but taking effect only after the then-serving officials left their jobs. Nixon still didn’t like the idea, but it was clear the Congress could override his veto of that second bill, so he signed it.

In essence, both Congress and the president were saving face by that point — with legislators making sure the president couldn’t just deny them the change they wanted and the president making sure Congress couldn’t just fire his advisors. But the outcome, a set of White House staffers who require Senate confirmation, doesn’t make sense even after almost 50 years. OMB has obviously grown a lot in that time, and the director now wields a lot of power — the job is, in some respects, more powerful than any of the cabinet secretaries. But the same can be said about the president’s chief of staff and some other advisers. As a devoted congressional supremacist, I like any instance of Congress standing up for itself against a president, but what happened with that job wasn’t a great fit for the structure of our system. Senators have no shortage of reasons to vote against Neera Tanden if they want them, but apart from that it’s worth seeing that we clearly have too many Senate-confirmed executive positions, and the next time Congress looks to trim the list, they might consider how to handle OMB again.

And I have to say that a further source of ambivalence on this one is the concern that Senator Manchin in particular may look at it as the one cabinet pick he will deny the new administration, and so may be more inclined to let the president’s pick for HHS secretary make it through.

On that selection, there is no cause for ambivalence at all — as NR’s editors as well as Rich Lowry, Ramesh Ponnuru, and others have pointed out in recent days. Xavier Becerra has plenty of political experience — having served in the House for two decades and as California’s attorney general since 2017. And he’s an intelligent and able person by all accounts. But he is also a radical progressive social activist with essentially no experience in health care, public health, or human services and with very little experience with the department he has been nominated to run except for suing it to weaken religious-liberty protections extended over the past four years. On key issues relevant to his new job, he has spent these years as an egregious bully.

Even in normal times, when maybe there could be some kind of excuse for treating such an important job as a sop to the radical activist wing of the president’s party, Becerra would be an especially inflammatory choice. And these are not normal times. We are still in the midst of a global pandemic, and the secretary of HHS should be more experienced with the department and its work and with the issues involved, and should not be a figure who will enflame the kinds of fears that will undermine the trust of large swaths of the country in the government’s actions, guidance, and priorities.

Of course, a Democratic president is going to choose a social liberal to run HHS. But Becerra’s distinctly aggressive record, and his lack of other relevant experience to the job, should trouble Democrats as well as Republicans. As Ramesh notes today, a number of Democrats have indeed expressed surprise at the pick.

It’s a strange choice, and a bad one. Senators of both parties should should reject Becerra and give the new president an opportunity to appoint a leader for HHS who is suited to the gravity of this moment. There is not a shortage of appropriate candidates.

Generally speaking, presidents should get the cabinet they want. But the Senate can sometimes do a new president a serious favor by allowing him to rethink a poor decision. Advice and consent has its place.

Yuval Levin is the director of social, cultural, and constitutional studies at the American Enterprise Institute and the editor of National Affairs.

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