Tommy Tuberville Is Just the Face of a 'Broken' Confirmation Process, Critics Say

U.S. Sen. Tommy Tuberville, R-Ala., speaks to reporters in the Capitol building on Sept. 21, 2023, in Washington, D.C.
U.S. Sen. Tommy Tuberville, R-Ala., speaks to reporters in the Capitol building on Sept. 21, 2023, in Washington, D.C. (Anna Rose Layden/Getty Images/TNS)

WASHINGTON -- Anger over Sen. Tommy Tuberville's blockade of high-ranking military promotions may have hit a boiling point this week, as a handful of fellow Republicans began to publicly pressure the former football coach to spike his nine-month-long stunt.

Calling the blockade a "national security suicide mission," Sen. Dan Sullivan of Alaska spent hours on the Senate floor Wednesday night trying to show how it is "hollowing out ... our most experienced military officers." And the saga is also highlighting just how janky the entire system of senatorial advice and consent has become, observers say.

"The Senate confirmation process is broken, and it needs attention and review," said Valerie Smith Boyd, director of the Center for Presidential Transition at the Partnership for Public Service.

"The Senate needs to rethink the way its whole agenda-setting process works," said Gregory Koger, a political scientist at the University of Miami. "Do not give this much power to one person, and [create] a much simpler, expedited process for passing legislation and nominations that are low salience."

Typically, the Senate will quickly confirm dozens or hundreds of military promotions at one time via unanimous consent -- unless someone threatens to object.

Right now that someone is Tuberville, an Alabama Republican who has placed what's known as a hold. Vowing to block the promotion of every general or flag officer to the rank of one-star and above, he is protesting a Pentagon policy that reimburses servicemembers for travel expenses to receive reproductive health care. The policy came after the Supreme Court overturned Roe v. Wade last year, leaving many states to impose total or near bans on abortion.

By recouping servicemembers' gas and toll money on the way to get an abortion, the Pentagon is effectively subsidizing it, Tuberville argues, in violation of laws preventing the federal government from paying for the procedure.

Senate Majority Leader Charles E. Schumer has set aside time here and there to fill some of the most glaring vacancies since Tuberville has said he would allow individual votes to proceed. But getting through the rest of the Tuberville backlog of more than 350 sequentially would take hundreds of hours of floor time, given how long it takes to invoke cloture (which requires at least nine GOP votes to get to the threshold of 60) and then vote on each. On Thursday, the Senate began to confirm more military nominations one by one, including the Air Force's chief of staff, the Navy's chief of naval operations and the No. 2 Marine.

The issue took on renewed urgency this week when Marine Corps Commandant Gen. Eric M. Smith was hospitalized after an apparent heart attack amid two ongoing wars involving U.S. allies Ukraine and Israel.

Democrats are now eyeing a resolution, which Senate Armed Services Chairman Jack Reed, D-R.I., introduced Tuesday, that would let the Senate vote on military nominations in batches without unanimous consent, with the exception of nominees for the Joint Chiefs of Staff and heads of combatant commands. "I will bring it to the floor," Schumer promised on X, formerly Twitter. If adopted, the resolution would be in effect for the rest of the 118th Congress.

But as political scientist Norm Ornstein has argued, Republican and Democratic senators alike are loath to pull a procedural end around Tuberville's hold because they have an interest in maintaining their own ability to deploy such tactics. On Wednesday, Senate Armed Services ranking member Roger Wicker, R-Miss., said he opposed Reed's resolution, as did Sen. John Cornyn, R-Texas.

"I'm not for a rule change because I think we see around here that once precedent is set with a rule change, then it's a slippery slope to other changes that, I think, threaten the institution," Cornyn said.

Tuberville's hold puts his Republican colleagues in an awkward position: They support his goal (killing an abortion-friendly Pentagon policy) but hate how he's trying to get there. And voters, including primary voters, tend to care more about a policy's ends, not the ugly means lawmakers deploy to achieve them.

While some of Tuberville's GOP colleagues had confronted him behind the scenes, questioning his attention-grabbing strategy, Wednesday was one of the first times that tension spilled into the open. Along with Sullivan, Republican Sens. Joni Ernst of Iowa, Todd Young of Indiana, Lindsey Graham of South Carolina and Mitt Romney of Utah sought consent on 61 individual nominations -- and 61 times, Tuberville objected. Now Republicans must decide their next move.

Democrats, meanwhile, have been mostly content to sit back while Tuberville single-handedly proves two of the core arguments they're making to voters ahead of the 2024 presidential elections: Republicans want to restrict abortion access and would rather make a showy fight waging culture wars than actually govern.

Fog of Confirmation War

No one even knows for sure how many Senate-confirmed positions there are.

The Senate Armed Services Committee estimates it considers 50,000 promotions each Congress, and a 2023 report from the Congressional Research Service put the number of military appointments and promotions at "approximately 65,000 per two-year Congress." But the Congressional Résumé, the official tally of what the legislative branch does, says there were closer to 40,000 military nominations in the 117th.

The idea that a committee of 25 senators is doing any kind of actual vetting for 40,000 to 65,000 officers is absurd on its face. So why do it?

Because the Constitution says so. Article II, Sec. 2 provides that the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States ... but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

The framers never foresaw a system like we have today. The very idea of a standing army, let alone one with more officers today than the population of the largest city in the colonies, worried them. George Washington appointed only four men to his new Cabinet; the Senate confirmed the first the same day it got the nomination.

As the federal government has grown, the number of Senate-confirmed positions has grown with it. Civilian nominees increased from 779 in 1960 to 1,237 by 2016, according to a Partnership for Public Service report, as Congress created new federal offices and sought to maintain some check on the executive's steadily growing power.

Congress tried to shrink the Senate's to-do list in 2011 with a law that converted 163 Senate-confirmed positions into presidential appointments. Despite this, the report found that the number of Senate-confirmed jobs still rose from 1,212 in 2012 to 1,237 in 2016.

That same reform created the privileged nomination calendar as an attempt to speed up some nominations by letting them skip committees and head straight to the floor for a vote. But another Partnership for Public Service report found those actually take longer to confirm now, going from an average of 171 days before to 251 days. Low-priority, part-time positions take 72 percent longer (287 days) than full-time positions to get confirmed.

Just who counts as a principal "officer of the United States" versus an "inferior officer" isn't clear. While the Supreme Court has ruled on the issue on multiple occasions, it's done so on a case-by-case basis, declining to create clearly delineated definitions of the two terms. But it is clear that lots of Senate-confirmed positions today are really inferior.

Not every commissioned military officer is an officer of the United States: Lieutenants and below in the Navy, and captains and below in the other branches, aren't subject to the Senate's advice-and-consent. While all the officers caught up in Tuberville's net would likely be considered principal officers, the further you go down the chain of command, the more "inferior" their subordinates appear to be.

On the civilian side, lots of Senate-confirmed positions clearly aren't officers of the United States. No matter how highly you value education, it's hard to make the case for the trustees overseeing some of the federal scholarship programs, like the Barry Goldwater Scholarship and Excellence in Education Foundation. "There are 303 Senate-confirmed positions that are part-time service to boards and commission," said Boyd, suggesting the president alone could handle most of those appointments.

Other Senate-confirmed positions could be converted to non-appointed civil service jobs, she said.

Just because some positions could drop their Senate confirmation without running afoul of the advice-and-consent clause, doesn't mean they should. Inspectors general don't set policy or exercise the sovereign power, but it makes sense to have the legislative branch provide some modicum of independence through confirmation to keep the administration from filling those positions with toadies.

While Boyd contends that converting more appointees into permanent staff would make life easier for incoming administrations, some Republicans want to go in the opposite direction.

At the end of his term, former President Donald Trump tried to make tens of thousands of civil service positions into political appointments, a move the Biden administration quickly reversed. Should Trump win back the White House, his allies say he'd immediately implement detailed plans to "dismantle the deep state," while other GOP presidential candidates have made similar pledges.

Even though the framers hoped the appointments clause would help vet top-ranking officials, senators have withheld their consent for nominees for petty political reasons from the start. The very first rejected nominee, Benjamin Fishbourn, was denied a naval officer posting in Savannah simply because Georgia Sen. James Gunn didn't like him.

Still, for the most part, the Senate was more zealous in checking the president's power to fill the judiciary while largely deferring to his preferences in the executive branch, including the military. That's changed in recent years, as more and more nominations have required cloture votes.

And while Missouri Sen. Josh Hawley placed holds on some of President Biden's top Pentagon picks last year as part of his own high-profile blockade, moves of this scale are unprecedented, said David Lewis, a political scientist at Vanderbilt University.

"What's unusual is it's about military nominations," he said. "Now these relatively standard, noncontroversial nominees are being caught up in the same kind of political fights that have been increasingly common with civilian nominations."

The increase in partisanship, driven more by Republicans growing more conservative than Democrats more liberal, has also exacerbated matters, said Lewis. "Those norms are kind of breaking down, partly under the weight of political polarization, that people recognize that there are political benefits to making a visible political stand," he said.

Caroline Coudriet contributed to this report.

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