White House moves on from confirmation effort for Su as Labor secretary

The Biden administration is ready to move on from Julie Su’s nearly five-month confirmation battle, looking instead to indefinitely leave her in the role as acting Labor secretary, according to two people familiar with the discussions.

The decision comes after a White House official last week publicly urged two senators who caucus with the Democrats to reconsider their position on Su. Though the White House is keeping the door open for a change in circumstances, internally there is little expectation that Sen. Joe Manchin (D-W.Va.) will reverse his public opposition or that Sen. Kyrsten Sinema (I-Ariz.) — who has not publicly declared a position — will support Su, according to the two people familiar with the talks. And so, the president and his team are set to move forward in defiance of the Senate confirmation process. It amounts to an implicit admission that the first Cabinet-level official to be replaced in the Biden administration lacks the votes.

The White House feels emboldened to keep Su in the role by a Labor Department rule that allows a deputy to serve in an acting capacity indefinitely, unlike other nominees who are subject to a time limit by a federal vacancies rule.

President Joe Biden still supports Su’s nomination and senior administration officials believe she has done well in the role. Chief of staff Jeff Zients and legislative director Louisa Terrell plan to remain in touch with Senate Democrats if the vote prospect changes, according to a person familiar with their plans.

“She’s doing a great job so I’m not in a hurry to get her confirmed at this point,” said Sen. Tammy Duckworth (D-Ill.), who has worked with the White House to support Su and advocated for having Asian Americans in the Cabinet. “She’s doing the job. She’s more than qualified. She’s been Senate-confirmed once, so just let her continue doing the job.”

The administration’s decision is already facing pushback from Republicans — and could be the basis of legal challenges of any Labor Department regulations issued in Su’s tenure.

Su set a dubious distinction Thursday when she set a record for having the longest pending nomination of a Cabinet-level official when both the White House and Senate were controlled by the same party, according to a Congressional Research Service analysis conducted for Sen. Bill Cassidy of Louisiana, the top Republican on the HELP panel.

Cassidy accused the White House of doing an end-run around the Senate.

“If your administration believes Ms. Su cannot receive the necessary votes for confirmation, then you should rescind her nomination,” he wrote in a letter Thursday to Biden. “Any attempts to bypass the will of Congress, especially its constitutionally mandated advice and consent role, is unacceptable.”

The administration’s efforts are an attempt to clear the cloud of uncertainty that has surrounded Su’s status as an embattled nominee, particularly as it heads into a summer with multiple high-profile labor strikes anticipated.

Sen. Bernie Sanders (I-Vt.), the chair of the Health, Education, Labor and Pensions Committee that oversees the Labor Department, is similarly nonplussed about filling the Cabinet vacancy.

“She would make a great secretary of Labor and I hope very much she will become the secretary,” he said. “If not, I’m confident she’ll continue doing a great job in the position that she has.”

Democrats had hopes that by padding their caucus in last year’s midterm election by one new member, Senate confirmations would be easier this year. Su’s struggles could be ominous for any future Cabinet replacement and come amid a handful of other failed nominees.

But not all Democrats have publicly embraced defeat. Senate Majority Leader Chuck Schumer told reporters on Wednesday that he and Senate leadership is “trying to do everything we can to get her passed, plain and simple.”

And some Democrats privately believe Sinema’s position is still truly unknown — perhaps even to the Arizona lawmaker herself.

Sen. Mazie Hirono (D-Hawaii), another prominent Su supporter, said they only need “one more vote” to get Su across the finish line, although she acknowledged she’d like more clarity about the confirmation prospects from the White House.

The White House official’s request last week that Sinema and Manchin reconsider their positions on Su’s nomination left open the possibility of confirmation. But Manchin, citing “genuine concerns” about Su’s “progressive background,” said he would oppose the nomination. Because Sinema hasn’t publicly revealed any position — as she frequently does — a “yes” vote down the road may be spun against her as caving to the White House’s demand. Su can afford to lose no more than one senator who caucuses with Democrats because Republicans are expected to be universally opposed.

Su initially kept a relatively low public profile typical of pending nominees. But as the White House has embraced her fate, Su has stepped out more publicly, similar to other members of Biden’s Cabinet. She appeared Tuesday with first lady Jill Biden to talk about the administration’s Investing in America Workforce Hub in Pittsburgh. Earlier this month, she did several media interviews related to the monthly jobs report, a typical duty of the secretary.

In another sign of the changing posture of the administration, the Labor Department is expected to soon release several rules that had been pending.

Su’s unconfirmed status has downsides. Because she is currently deputy, the department appears unlikely to be able to fill that role with another person. Acting officials are also often viewed as lacking the gravitas of having successfully gone through Senate confirmation. Former Labor Secretary Marty Walsh, who has lobbied Sinema, Manchin and others on Su’s behalf, pushed back on that idea.

“However long Julie Su is the acting secretary or secretary, she’s going to put her mark on the job,” he said. “I don’t think the word ‘acting’ is any part of it.”

House Education and Workforce Chair Virginia Foxx (R-N.C.) last week asked the Government Accountability Office to clarify the acting secretary’s legal authority to continue serving. An agency spokesperson on Thursday confirmed it has opened a review but said it has no timeframe on the process. GAO reports can often take months or more to be released.

Nick Niedzwiadek contributed to this report.