Analysis

Biden's controversial Cabinet picks will reveal who holds the cards in Washington

Republicans will be picky about Biden's nominees. Democrats should be, too.

"I think they're going to pick a couple of people just to fight [over] no matter what."

That was President-elect Joe Biden's wearily wry response to New York Times columnist Tom Friedman when asked about Republican opposition to Neera Tanden, Biden's nominee for director of the Office of Management and Budget. Tanden has come under fire for a history of picking fights on Twitter, usually with Republicans, though she certainly has her fair share of left-wing detractors as well. The irony of Republicans of all people disqualifying a nominee on the basis of mean tweets escaped neither Biden nor Friedman — but what Biden's reaction telegraphed to me was that if Republicans needed a scalp, Tanden's was one they could have.

She's unlikely to be the only Biden nominee to be challenged — nor the most consequential. And the challenges may come not just from Republicans, but from left-wing Democrats, too.

Take Biden's pick to lead the Department of Health and Human Services, California Attorney General Xavier Becerra. Becerra has neither extensive managerial experience nor particular expertise relevant to fighting the pandemic — both qualifications that might seem important when preparing to roll out a national vaccination effort with unprecedented speed. What he does have is experience fighting against the Trump administration in court, and before that, working on the Affordable Care Act during his time in Congress. For this reason, his choice has been widely seen as a political shot across the bow — a sign that Biden intends to move swiftly using executive power to reverse a whole suite of policies enacted by President Trump.

Becerra has also been characterized by New York Times columnist Ross Douthat as "an abortion-rights maximalist who has used his attorney general's office to sue the Little Sisters of the Poor" and "to pursue felony convictions against the pro-life filmmakers who made undercover videos of Planned Parenthood executives talking about the sale of fetal body parts." For that reason especially, the pick has already drawn fire from conservative and anti-abortion groups, and has become a campaign talking point in the Georgia Senate races highlighting the importance of keeping the chamber to block such nominees. Becerra is perfectly teed up to be the Betsy DeVos of the Biden administration: a made-to-order symbol for fundraising and campaign organizing by the opposition party, proof that behind the mask of moderation, Biden's White House is as "hard-left" as they imagine Kamala Harris' would be.

Becerra can only play that role, though, if he's confirmed. Will he be? It's hard to see how the GOP could avoid at least making an effort to sink his nomination, lest they lose all credibility with their own base — but they might fail. Pro-choice, independent-minded Republican senators like Lisa Murkowski of Alaska and Susan Collins of Maine could be hard to keep on side to block a mainstream and politically adept nominee who had once been a colleague in the lower chamber.

Of course, Senate Majority Leader Mitch McConnell could simply refuse to hold a vote on any nominee he wants to block. That applies not only to Cabinet-level appointments but to sub-Cabinet nominees who will never draw a great deal of press attention. But a spate of such refusals would be noticed — and would be properly understood as a sign that Republicans do not want to let the Biden administration govern unless it governs as they see fit. And the reality is: They can do that. If McConnell wants to block Becerra's ascension, or any others, and force Biden to the table to negotiate more confirmable nominees, he can do it. It doesn't matter if it isn't fair and it doesn't matter if it destroys the historic norm of letting the president largely choose his own Cabinet. Biden is the president of the United States; he has to govern. McConnell is a newly re-elected senator from Kentucky; he doesn't.

Once McConnell enters into those negotiations, though, he will truly be Biden's partner in governance; he won't be able to claim that he deferred to the president on nominees that he personally disagreed with. That might be one good reason for him to allow nominations like Becerra's to go through and win confirmation on a narrow margin. It's also a reason for Biden to be relatively sanguine about Becerra's fate — to say nothing of Tanden's. Either they get confirmed, and he's got the nominees he wanted (and has pleased his own base for "winning" a fight with the GOP), or they don't, and the GOP has been drawn into the process of bipartisan governance that has been a key Biden goal.

How should the left respond, then? Well, they can't beat 'em; McConnell really does hold the cards. But they can join 'em. And if they pick the right fight, they might actually do some good — for the country and for their own reputations.

That fight is against General Lloyd Austin, Biden's nominee for secretary of defense. Democrats should oppose Austin, not because he's more likely, as a military man, to incline toward an interventionist foreign policy. The opposite is more likely the case, especially if someone like Michèle Fluornoy is the alternative. Rather, they should oppose him for reasons of fundamental principle.

Biden chose Austin, he says, because of his lengthy and recent experience as a soldier-statesman. That's precisely the wrong case to make. The reason we have a legal restriction on recently retired military officers from serving in the role is to entrench the norm of civilian control of the military. The nomination of General James Mattis as Trump's first secretary of defense stretched that norm. Following it immediately with another recently-retired officer begins to entrench a contrary norm: that only those with extensive military careers can be trusted — not only by the American people, but by the military itself — to run the Defense Department. It's a significant step toward treating the armed services as an interest group that must be consulted on foreign policy rather than an instrument for the American people, through their representatives, to deploy on behalf of the national interest.

If left-wing Democrats in the Senate want to show that they intend to play an active role in shaping the Biden administration, this would be a good place to do it. It would put the administration on notice that their choices are being watched by their own side. It would demonstrate that diversity is not a trump card to deflect criticism on other principled bases. And it might even be an opportunity for bipartisanship, if there are any Republican senators able to muster a defense of this venerable constitutional principle.

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