WASHINGTON ― U.S. President-elect Joe Biden is pressuring Congress to quickly confirm his nominees for national security roles, but it appears the congressional calendar won’t permit his pick for defense secretary to be in place on Day One of the Biden administration.
The Senate traditionally confirms a new president’s defense secretary right away for the sake of national security. But for retired Gen. Lloyd Austin to serve in the position, Congress must pass a waiver of the seven-year cooling-off period between military service and becoming defense secretary — a complication that Congress doesn’t have the time to resolve by Jan. 20.
To consider the waiver, the House Armed Services Committee must organize for the new Congress and, per Chairman Adam Smith, D-Wash., hold a hearing. However, there’s no time because the House will be in recess until Inauguration Day, Jan. 20, a Democratic spokesperson for the committee wrote in an email to Defense News.
“The House Armed Services Committee is planning for a hearing, but given that the House is in recess next week, the hearing is likely to happen on January 21st or later,” the spokesperson said. “As a reminder, the House rules stipulate that committees cannot hold hearings until after committee members have been identified and holds a formal organizing meeting.
“Bottom line, we are following regular order until something else happens, and we are very confident that the waiver will pass the House.”
The news comes as Biden has been naming picks for senior roles at the State Department and National Security Council. He said Wednesday he intends to work with congressional leaders in both parties to advance them.
“My nominees for critical national security positions at State, Defense, Treasury, and Homeland Security have bipartisan support and have been confirmed by the Senate before. They need to be in their jobs as soon as possible after January 20th,” Biden said Wednesday in a statement ahead of the day’s violence.
Sign up for our Early Bird Brief
Get the defense industry’s most comprehensive news and information straight to your inbox
Thanks for signing up!
By giving us your email, you are opting in to the Early Bird Brief.
It’s unclear who would immediately fill the role after Biden is sworn in, and the incoming administration hasn’t announced plans for that.
According to former Senate Armed Services Committee staff director Arnold Punaro, an expert on the confirmation process for Pentagon nominees, Biden could seek the confirmation of his nominee for deputy defense secretary, Kathleen Hicks ― an Obama-era undersecretary of defense. Hicks led Biden’s Pentagon landing team until she handed management of it to former Obama-era undersecretary of defense for policy Christine Wormuth to focus on the looming confirmation process, but Hicks remains involved in the landing team’s discussions.
Biden could instead ask President Donald Trump’s deputy defense secretary, David Norquist, or another current official to fill the role on an acting basis.
“Ever since President [Dwight D.] Eisenhower, in the first 200 days of an administration, there has been a crisis. The individual that needs to be there is an individual the commander in chief trusts to basically carry out his order to the war-fighting combatant commanders,” Punaro said.
Absent Hicks, “David Norquist would certainly be the right person to do that because everybody knows him and you won’t have to get somebody up to speed,” Punaro added.
Beyond the logistics of the House holding a waiver hearing and floor vote, there are logistics to settle in the Senate, which Democrats are on track to control after winning both seats in Georgia’s U.S. Senate elections this week. That narrow majority means Democrats will have a major role in controlling the confirmation process, but Senate Republicans would still have enough leverage to delay Biden’s nominees.
Before the Senate results were final Wednesday, Rhode Island Democratic Sen. Jack Reed, who is poised to chair the Senate Armed Services Committee, said he was working with its current chairman, Sen. Jim Inhofe, R-Okla., to set a confirmation hearing in the next two weeks. The move would take special action because the Senate isn’t scheduled to be in regular session until Jan. 19.
“I hope so, but it’s still in the purview of Sen. Inhofe. And we’ve been talking, and I think we’d like to follow the path closely [like] we did with Gen. [Jim] Mattis in terms of getting some hearings done before the 20th,” Reed told reporters Wednesday.
Since then, the committee on Thursday announced a hearing on civilian control of the armed forces that’s expected to cover the waiver. Set to testify are Lindsay Cohn, of the U.S. Naval War College, and Kathleen McInnis, a Congressional Research Service expert in international security.
It’s an open question how many of Biden’s nominees Republicans will allow to be confirmed on Inauguration Day, if any. Before Trump was sworn in four years ago, there was a partisan fight over the number of his Cabinet picks.
Senate Minority Whip Dick Durbin, D-Ill., told MSNBC last month that any newly elected president deserves to have his team confirmed.
“We have an obligation, I think, personally and politically, to give him a team in place, particularly in the critical departments like the Department of Defense,” Durbin said of Biden. “So I certainly hope that the same courtesy will be extended to President Biden that we extended President Trump.”
In 2017, Senate Minority Leader Chuck Schumer, D-N.Y., allowed Senate Majority Leader Mitch McConnell, R-Ky., only two picks for rapid confirmation ― Mattis to lead the Pentagon and John Kelly to become secretary of the Department of Homeland Security ― and sought floor debates for even the noncontroversial nominees.
At the time, Republicans groused that President Barack Obama got seven of his Cabinet picks installed on his first day as president and that Democrats were endangering national security for holding up Mike Pompeo, then the pick for CIA director and a key member of Trump’s national security team.
Punaro recommended the Senate Armed Services Committee hold both the waiver hearing and a confirmation hearing next week to speed the process.
“My position is they should pull out all the stops to get Austin waived and confirmed by the 20th. He should be there on Day One when the president takes over,” Punaro said. “The secretary of defense is the only other civilian in the war-fighting chain of command, and you need to have someone that the president has confidence in, has nominated, and is his secretary of defense.”
With an eye on the previous administration’s time crunch, which may be exacerbated by Republican resistance, the Biden team has focused on lining up lower-level political appointees who do not need Senate confirmation in order to ensure a strong national security team is in place on Day One. That essentially covers anyone at the deputy assistant secretary of defense level or lower.
In total, Biden has 62 Defense Department jobs to fill that require Senate confirmation, including Austin, Hicks and Colin Kahl, who has been nominated for undersecretary of defense for policy. (While not technically third in the line of succession, that job is often referred to as the third-most important civilian role at the department, given the breadth of its responsibilities.)
It took the Obama administration an average of fove months to nominate and just over two months to confirm its so-called PAS officials (presidentially appointed, Senate-confirmed) — an average of a seventh-month process, according to data compiled by Punaro.
Top-tier officials with the Office of the Secretary of Defense, such as the undersecretary of defense for policy, took just under four months to confirm.
In contrast, the Trump administration was plagued by a slow process for identifying, nominating and confirming individuals for top spots, even though the president’s party controlled the Senate for his entire term.
It took about seven and a half months to nominate and almost three and a half months to confirm — about a total of 11 months to confirm such individuals. When it comes to those top-tier officials, it took the Trump team six months to nominate and an additional three months to confirm — over twice as long as it took the Obama team for those same roles.