The surprising corner of the Senate that's sinking Biden nominees

Relatively obscure nominations are turning into Senate knife fights as 2024 approaches. And the Commerce Committee is the center of the action.

So far this year, three Biden picks for executive-branch positions withdrew because they lacked enough support in the committee, which has four Democratic members up for reelection in swing states next fall. And when Republicans stick together — under the surprising leadership of Sen. Ted Cruz (R-Texas) — that can cause problems.

In theory, the Democratic Senate can unilaterally confirm anyone with 50 votes and push nominations through committees with simple majorities. But that requires near-total party unity — which isn’t always easy to achieve on the Commerce Committee, other panels or the Senate floor.

It’s a dynamic that could force Biden to keep acting officials in some top jobs, which Trump took to extremes and elicited Democratic criticism. But the Biden administration, congressional Democrats and the nominees themselves are realizing some fights aren’t even worth having.

Take Ann Carlson, who Biden tapped to run the National Highway and Traffic Safety Administration. Facing tough attacks from Cruz and committee Republicans, she removed herself from consideration two months after the White House nominated her.

The Biden administration “realized that there's no reason to go through this” because the agency can continue to function without a Senate-confirmed nominee, said a Democratic senator familiar with the nomination, granted anonymity to speak candidly. A White House official said Carlson made the decision to withdraw.

The Carlson episode is instructive for a White House and Democratic Senate that’s faced several tough nomination crunches. At the moment, Labor Secretary hopeful Julie Su is in the highest-profile fight, as a handful of Democratic senators remain undecided and there's no floor vote in sight.

Su may be able to serve as acting secretary through the election if needed, according to a person familiar with the nomination.

White House officials expressed confidence in the overall percentage of nominees they’ve pushed through the 51-49 chamber, including the recent confirmation of Dilawar Syed to the No. 2 job at the Small Business Administration after two years of delay.

The Senate has confirmed more than 850 Biden administration appointees as of this week, according to a White House official. That's more than the Trump administration had at this point despite larger GOP majorities.

Still, it’s not hard to see why the Commerce Committee is so tough: The combative Cruz is the top Republican on the panel. And the committee’s Democratic members include incumbent Sens. Kyrsten Sinema (I-Ariz.), Jacky Rosen (D-Nev.), Jon Tester (D-Mont.) and Tammy Baldwin (D-Wis.).

In addition to Carlson, the nominations for Biden’s FAA administrator Phil Washington and FCC Commissioner Gigi Sohn both faltered in the Commerce Committee. Tester put it this way: “I could blame it on Cruz, but I don’t know that to be the truth.”

Still, the withdrawal is a point of pride for Cruz, who had criticized Carlson's position on fuel economy standards, Washington's lack of aviation experience and Sohn's progressive positions.

“The Senate has defeated three non-judicial Biden nominees,” Cruz said. “All three had been in the Commerce Committee.”

Commerce Chair Maria Cantwell (D-Wash.) said in an interview that each nominee’s circumstances were different, calling Carlson’s withdrawal a “surprise” and Sohn’s defeat earlier this year less so: The administration "knew exactly what was going to happen," Cantwell said. "We tried to fight for her. We didn’t have the votes.”

“It’s no secret that Republicans have made blocking the president’s nominees a top goal, especially when it comes to positions protecting consumers,” Cantwell added in a statement. “Democrats will never stop fighting for President Biden’s nominees who will stand-up for American consumers.”

The American Accountability Foundation, a conservative opposition research group run by a former staffer for Cruz’s 2016 presidential bid, took credit for helping dismantle Sohn and Washington’s nominations. The White House official blamed “an onslaught of unfounded Republican attacks” for Washington’s defeat and said Sohn “would have been a strong FCC commissioner.”

Su, meanwhile, is still in limbo after she got through the Health, Education, Labor and Pensions Committee, which also has jurisdiction over her confirmation. Senate Majority Leader Chuck Schumer is laboring to confirm her but declining to guarantee confirmation, or even a floor vote.

Sen. Joe Manchin (D-W.Va.) said he's "nowhere" on Su, but Democrats are operating as if he is opposed, according to a person familiar with the matter. That leaves no margin for error given the assumption that all Republicans will vote no. Moderate Sens. Lisa Murkowski (R-Alaska) and Susan Collins (R-Maine) both voted against Su in committee.

There’s little political upside for a vulnerable incumbent to publicly support a nominee who may never get a vote. Tester said “I want to keep my options open until we have a vote” on Su and Sen. Angus King (I-Maine) similarly demurred.

That’s frustrating their colleagues from solidly blue states.

“I haven't been told factually why people would be against her. We're not even talking about the Republicans,” said Sen. Mazie Hirono (D-Hawaii). “I'm just at a loss.”

Biden “has confidence” in Su, who is currently serving as acting labor secretary, White House press secretary Karine Jean-Pierre said this week: “We’re going to do everything that we can to make sure that she actually becomes secretary.”

White House officials and outside groups — including labor unions — have maintained a steady drumbeat of support for Su’s nomination, according to a White House official granted anonymity to detail private conversations. They regularly participate in a “war room” call on the effort.

Chief of staff Jeff Zients and Director of Legislative Affairs Louisa Terrell are in regular touch with Schumer and senators, according to the official. Terrell is working with Sen. Tammy Duckworth (D-Ill.) and Rep. Judy Chu (D-Calif.) to coordinate support.

Past Su and the Commerce Committee, the logjam on judicial nominees has eased since Sen. Dianne Feinstein (D-Calif.) returned to the Judiciary Committee, allowing Democrats to advance Biden nominees who lack GOP support. Still, it hasn’t been all roses there either: Two of the president’s lifetime judicial picks, Jabari Wamble and Michael Delaney, have withdrawn in recent weeks and a third, Scott Colom, is facing a veto from Republican Sen. Cindy Hyde-Smith of Mississippi.

Still, Biden and the Democrats have prevailed on other tough fights. Former Los Angeles Mayor Eric Garcetti muscled through the Senate in March after a nearly two-year stall. The Biden administration is making headway with Republicans on some judicial nominees.

And with an evenly split Senate last Congress, Cantwell was able to confirm FTC commissioners Lina Khan and Alvaro Bedoya and Consumer Product Safety Commissioner Mary Boyle over some rigid GOP opposition.

The president has already tapped Anna Gomez to replace Sohn as the FCC nominee, and Cantwell believes she has better prospects. The senator added that she hopes the administration nominates new candidates for the FAA and NHTSA.

And while Democrats are often able to go around Republicans to unilaterally confirm nominees, early Republican blockades make it that much more difficult to unite their caucus. Even the public defection of one Democrat, like Manchin’s opposition to Sohn, can be enough to force a withdrawal.

“They're having problems on their side,” said Sen. John Thune (R-S.D.), a former Commerce Committee chair. “They just hope that when they push hard enough, that eventually their members will come in line. But there are a couple of cases now where that's not been true.”

John Hendel and Tanya Snyder contributed to this report.