Biden's nominees hit the Senate skids

President Joe Biden’s nominees are hitting a rough patch in the Senate. And things may only get trickier from here.

It looked at the beginning of the year like Democrats would have an easier time confirming Biden picks, having gained a seat last fall after a historically lengthy run in a 50-50 Senate. But this Congress has brought a host of new challenges despite that padded margin for Biden's party.

Two high-profile Biden administration hopefuls have withdrawn in the past month alone. The president's Labor Department pick faces a tough road to confirmation. And the administration is in danger of a first: having to abandon a judicial nominee due to tepid Democratic support.

That's in addition to the Pentagon promotions being stalled by a Republican senator and the judicial appointments delayed due to a senior Democratic senator's extended absence.

Underlining the tension between the narrowly divided Senate and the administration was the Saturday evening withdrawal of Phil Washington, tapped to lead the Federal Aviation Administration. Democrats blamed a GOP campaign against him, led by Sen. Ted Cruz (R-Texas), but the reality is that Biden's own party could have saved Washington had they kept their own side united and put up a simple majority.

In Washington's case, Commerce Committee member Sen. Kyrsten Sinema (I-Ariz.) had communicated her concerns to the Biden administration. And Sen. Jon Tester (D-Mont.) stayed undecided ahead of the committee vote, right up until Washington bowed out.

“That’s a better question for the president,” Tester, who faces a reelection campaign this cycle, said of the FAA imbroglio. Asked if he supported the nominee, he responded: “Never had to make that vote.”

Washington’s implosion comes at a crucial inflection point for the Biden White House's confirmation operation. On Monday night, some Democrats were still digesting the news that he had withdrawn over the weekend.

"He had the vast majority of supportive people in our caucus, whether from the left to the moderate wings of our caucus, so I’m very sorry that the misrepresentations of his record … resulted in his having to withdraw,” said Sen. Michael Bennet (D-Colo.).

At Washington's nomination hearing, Sinema said it was important to confirm a permanent FAA chief. But while noting Washington’s military experience as well as his job as CEO of the Denver International Airport, she said that the agency needed someone with aviation experience at the top — a strong hint that she was not convinced that Washington was right for the role, since that was the main line of attack against Biden's pick.

Sinema said in a statement on Monday that “the administration should quickly nominate a permanent FAA administrator with the necessary, substantial aviation safety experience and expertise.”

Commerce Committee Democrats and Biden administration “knew from the beginning she was concerned” about Washington’s level of experience and little effort was made to assuage Sinema, said a person familiar with Sinema’s interactions who spoke on condition of anonymity.

A Biden administration official, who would also only address the flap on condition of anonymity, said they “fought hard for Phil” and denied that they had dropped the ball.

“If someone at the end of the day decides not to vote a certain way, that’s the senator’s decision, but there’s no doubt in my mind that we did everything we could to fight for him,” the official said.

The Commerce Committee in particular has given Biden’s nominees a rough ride. FCC nominee Gigi Sohn withdrew earlier this month after being twice nominated by Biden for a position on the commission. That's on top of several other tough confirmation fights consuming the early days of this Congress.

Julie Su’s nomination to head the Labor Department is expected to draw most of the GOP’s attention in the coming weeks; she had no Republican support in the vote to confirm her as deputy Labor Secretary in 2021, and moderate Democrats will face pressure to oppose her even though she won Democratic support back then.

When asked about Su's chances of making it to the Cabinet, Sen. Bernie Sanders (I-Vt.), chair of the Health, Education, Labor and Pensions Committee, said only: “I'm looking forward to the hearing and looking forward to her confirmation.”

Tester said he’d made no decision on Su, while Sinema has a policy against previewing her votes in public. Sen. Joe Manchin (D-W.Va.) said he’d supported Su in her current role because of his confidence in former Labor Secretary Marty Walsh.

“My vote for her last time was all predicated on Marty,” Manchin said. When asked if there was a pattern to the White House’s vetting with nominees, he replied that it was "not my job" to identify. "My job is to review who they send.”

The administration official said the White House was confident that she will get confirmed and that “organized labor is showing up in a big way for her and advocating for her confirmation.”

Manchin made waves earlier this month when he opposed Sohn, but according to two Democratic aides the FCC hopeful already had several other Democratic senators opposed to her — leaving her nowhere close to winning confirmation. In his capacity as Energy Committee chair, Manchin also will not move on Laura Daniel-Davis' bid to serve as an assistant Interior secretary.

In addition, judicial nominee Michael Delaney, is in limbo on the Judiciary Committee due to absences, but his nomination also may not have the votes to proceed anyway on Biden’s pick for the First Circuit Court of Appeal. Broadly speaking, Judiciary Chair Dick Durbin (D-Ill.) said that given Sen. Dianne Feinstein’s (D-Calif.) absence, “I can’t consider nominees ... A tie vote is a losing vote on the committee.”

On top of that, Sen. Tommy Tuberville (R-Ala.) has instituted a blockade of quick confirmation and promotion of Pentagon nominees after the Defense Department moved ahead with policies that would ease access to abortion and other reproductive care for troops.

Sen. Roger Wicker (R-Miss.), the top Republican on the Armed Services Committee, said he agreed with Tuberville's opposition to the policy but that “we’re trying to work out a mutually satisfactory solution.”

“Well, if this was about enlisted personnel, people who actually do the fighting, it might be different. But this is about three- and four-star generals. We got too many as it is,” Tuberville said.

The administration’s nominee problems pale in comparison to those that plagued former President Donald Trump, who was unsuccessful on several Federal Reserve nominees and multiple Cabinet picks. Republicans also sank or criticized some of his judicial nominees.

“Sometimes administrations don't do a good job of vetting their nominees. And when they don't, then things like this happen,” said Sen. John Cornyn (R-Texas), the whip during two years of Trump’s presidency, referring to Washington’s withdrawal.

Biden’s first two years as president also saw some intraparty opposition: Senate Democrats opposed Saule Omarova’s nomination to the Office of the Comptroller of the Currency and sank David Weil’s bid to head the Labor Department’s Wage and Hour Division. Manchin also singlehandedly spiked Neera Tanden’s nomination to be Biden’s budget chief.

“We have successfully confirmed over 800 nominees, including many in a 50-50 Senate last session. An onslaught of unfounded Republican attacks on Mr. Washington’s service and experience irresponsibly delayed this process,” said a White House official.

The official added: “As of last week, we have nominated agency leaders on pace with Obama and confirmed 100 more than Trump had at this time in his administration.”