The challenges ahead (Biden's America)

[River]

They could always put the filibuster back in 2022. These are rules made by humans. They can be changed by humans.

[Voronwë the Faithful]

Mitch McConnell is threatening to filibuster the motion that puts Democrats, who won the Senate, in charge of the Senate's committees.

There are some centrist Democrats who don't want to get rid of the filibuster.

Preventing them from actually controlling their own committees would be one quick way to get them to change their minds.

What is McConnell up to? Does he want the filibuster gone for 2022 or after but doesn't want to be the one to pull that trigger?

Link? The last I heard McConnell and Schumer were close to a deal on power-sharing, that was based on the last time the Senate was split fifty-fifty.

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[Voronwë the Faithful]

I cannot find anything that says that McConnell is threatening to filibuster the motion that puts Democrats in charge of the Senates committees (indeed, I don't believe that such a motion could be filibustered). Rather, what I am seeing is that the hangup in the talks is over McConnell's insistence that the Democrats agree not to get rid of the filibuster.

https://www.foxnews.com/politics/mcconn ... ings-talks

[Dave_LF]

There are a variety of people claiming he's threatening to filibuster the Organizing Resolution. For example, Senator Schatz:
https://twitter.com/brianschatz/status/ ... 2235702273

[N.E. Brigand]

Yes, it was Sen. Brian Schatz of Hawai'i who tweeted this:

"McConnell is threatening to filibuster the Organizing Resolution which allows Democrats to assume the committee Chair positions. It’s an absolutely unprecedented, wacky, counterproductive request. We won the Senate. We get the gavels."

[N.E. Brigand]

As with James Mattis in 2017 and George Marshall in 1950, Lloyd Austin, who is Joe Biden's choice for Secretary of Defense, is ineligible to serve in that role unless Congress first passes a waiver. This is because he was very recently a military officer, and in furtherance of promoting the principle of civilian control over the military, a 1947 law requires a seven-year waiting period following retirement from active duty before a person can serve in this position.

Both the House and Senate have to vote for this. I can't find the vote numbers for Marshall, but Mattis's waiver passed 268-151 in the House and 81-17 in the Senate. Mattis was then confirmed by a vote of 98-1, with only Kirsten Gillibrand voting against. (She voted no on all but one of Trump's cabinet appointees.)

Today Austin's waiver was approved 326-78 in the House and 69-27 in the Senate.

Republicans controlled both chambers in 2017. Democrats control both chambers now.

[Voronwë the Faithful]

Despite what Sen. Schatz tweeted, I do not believe you can "filibuster" an organizing resolution. Typically they are approved by unanimous consent after the two leaders have reached agreement. What McConnell is doing isn't really a filibuster in the true sense of the term. One would think a sitting Senator would know that.

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[elengil]

One would think a sitting Senator would know that.

One would think a sitting Senator would know that you can't subpoena phone calls, either, and yet that didn't stop one from asking.

[Voronwë the Faithful]

I'm not sure I understand what you mean by that.

[elengil]

I'm not sure I understand what you mean by that.

https://twitter.com/cspan/status/101237 ... 53?lang=en

Little bit of retro-humor.

[Voronwë the Faithful]

Okay, forgive me for being pedantic. First of all, Jim Jordan is not (and I sincerely hope never will be) a senator. Secondly, Rosenstein statement wasn't really true; of course you can subpoena phone records, or recordings of phone calls (or emails, which is the other thing that Jordan was asking about). I think he was just annoyed at Jordon's assholic-ness (I know I would have been if I had been in his shoes) and spoke off the cuff.

With regard to the organizing resolution, I can't find any clear indication of exactly what is necessary to pass the organizing resolution. In a recent op-ed by Trent Lott and Harry Daschle (who were the party leaders the last time there was a 50-50 split and were able to reach an agreement) they state that it requires a majority vote, but that can't be right, because if it were true the Democrats could just pass it with Harris breaking the tie. I saw something in the Senate's own records that stated that usually it is passed by unanimous consent but occasionally engenders "fierce debate" (I can't find the link to that right now). I saw some place else that said that it required 60 votes, which is probably correct, but I can't find anything that confirms that. And I don't think that 60 vote requirement is a result of the usual requirement for a closure vote before the actual vote on a bill or nomination (which is what a filibuster is really about). But maybe it is, and Sen. Schatz is right after all. But I still think that he is using the term as a shorthand for a more general bit of turtlelike obstruction.

[N.E. Brigand]

Thanks for digging into that, V.

When they are properly organized, the Senate will have to decide on the timetable for the second impeachment trial of Donald Trump. The House will be sending over the Articles of Impeachment on Monday.

A number of Republicans are now arguing that it's unconstitutional to impeach or try a former president.

Accordingly I appreciate this list of conservatives who have previously called for a former president to be newly impeached, years after that president was out of office, including Congressman Matt Gaetz, Tom Fitton of Judicial Watch, and, yes, President Donald Trump.

[Voronwë the Faithful]

McConnell reportedly has been asking to delay the trial to give the former president's legal team time to prepare. My guess is that he will eventually give up his demand for a written guarantee that the Democrats will never seek to eliminate the filibuster (which there is no way they will agree to) in exchange for an agreement for a short delay in the trial (which many Democrats including President Biden would not mind because it would allow the Senate to focus on other priorities such as confirming Biden's cabinet and addressing Covid relief). But that is pure speculation on my part.

[Voronwë the Faithful]

Lloyd Austin has been confirmed as Defense Secretary. The vote was 93-2. The two no votes were from Republicans Mike Lee and Josh Hawley. Republicans Burr, Capito, Hyde-Smith, Moran and Tillis did not vote.

[N.E. Brigand]

As with James Mattis in 2017 and George Marshall in 1950, Lloyd Austin, who is Joe Biden's choice for Secretary of Defense, is ineligible to serve in that role unless Congress first passes a waiver. This is because he was very recently a military officer, and in furtherance of promoting the principle of civilian control over the military, a 1947 law requires a seven-year waiting period following retirement from active duty before a person can serve in this position.

Both the House and Senate have to vote for this. I can't find the vote numbers for Marshall, but Mattis's waiver passed 268-151 in the House and 81-17 in the Senate. Mattis was then confirmed by a vote of 98-1, with only Kirsten Gillibrand voting against. (She voted no on all but one of Trump's cabinet appointees.)

Today Austin's waiver was approved 326-78 in the House and 69-27 in the Senate.

Republicans controlled both chambers in 2017. Democrats control both chambers now.

As V has noted, Austin's nomination was confirmed 93-2.

- - - - - - - - - -
I got cross-posted because I was adding the following, which might be useful for future comparative reference. It's Trump's original cabinet nominees, ordered by number of votes received and showing their last day in office and length of service in that role.

100-0 -- David Shulkin, Veterans' Affairs -- last day Mar. 28, 2018 (=14 months)
98-1 -- James Mattis, Defense -- Jan. 1, 2019 (23 months)
93-6 -- Elaine Chao, Transportation -- Jan. 11, 2021 (47 months)
88-11 -- John Kelly, Homeland Security -- Jan. 2, 2019 (23 months)
87-11 -- Sonny Perdue, Agriculture -- Jan. 20, 2021 (21 months)
72-27 -- Wilbur Ross, Commerce -- Jan. 20, 2021 (47 months)
68-31 -- Ryan Zinke, Interior -- Jan. 2, 2019 (22 months)
62-37 -- Rick Perry, Energy -- Dec. 1, 2019 (45 months)
58-41 -- Ben Carson, Housing and Urban Development -- Jan. 20, 2021 (46 months)
56-43 -- Rex Tillerson, State -- Mar. 31, 2018 (14 months)
53-47 -- Steven Mnuchin, Treasury -- Jan. 20, 2021 (47 months)
52-47 -- Tom Price, Health and Human Services -- Sep. 29, 2017 (8 months)
52-47 -- Jeff Sessions, Attorney General -- Nov. 7, 2018 (21 months)
51-50 -- Betsy DeVos, Education -- Jan. 8, 2021 (47 months)
n/a -- Andrew Pudzer, Labor, withdrawn (replaced by Alex Acosta, 60-38 -- July 19, 2019 (27 months))

Only four cabinet nominees had been confirmed by the fifteenth day of Trump's term (and thus theoretically could have been counted as serving a full 48 months had they remained in office to the end): James Mattis, John Kelly, Elaine Chao, and Rex Tillerson. Of those, only Chao almost made it, missing the four-year mark by 20 days. The longest-serving Trump cabinet member was Devos, who fell just 18 days short of four years, then Chao, and then Mnuchin, who was 24 days shy of 48 months.

[Voronwë the Faithful]

Thanks, N.E.B. It would be interesting to compare those numbers to Obama's nominees, but I don't think I have it me to look that up.

[RoseMorninStar]

Who works in these positions prior to confirmation? The old order (so to speak) or do the nominees begin work and wait for confirmation?

[River]

The old order. Or an acting, depending on circumstances.

[Frelga]

McConnell reportedly has been asking to delay the trial to give the former president's legal team time to prepare. My guess is that he will eventually give up his demand for a written guarantee that the Democrats will never seek to eliminate the filibuster (which there is no way they will agree to) in exchange for an agreement for a short delay in the trial (which many Democrats including President Biden would not mind because it would allow the Senate to focus on other priorities such as confirming Biden's cabinet and addressing Covid relief). But that is pure speculation on my part.

I'd like you to be right, if only so we can have some logical reasoning behind the running of the government.

[N.E. Brigand]

I got cross-posted because I was adding the following, which might be useful for future comparative reference. It's Trump's original cabinet nominees, ordered by number of votes received and showing their last day in office and length of service in that role.

100-0 -- David Shulkin, Veterans' Affairs -- last day Mar. 28, 2018 (=14 months)
98-1 -- James Mattis, Defense -- Jan. 1, 2019 (23 months)
93-6 -- Elaine Chao, Transportation -- Jan. 11, 2021 (47 months)
88-11 -- John Kelly, Homeland Security -- Jan. 2, 2019 (23 months)
87-11 -- Sonny Perdue, Agriculture -- Jan. 20, 2021 (21 months)
72-27 -- Wilbur Ross, Commerce -- Jan. 20, 2021 (47 months)
68-31 -- Ryan Zinke, Interior -- Jan. 2, 2019 (22 months)
62-37 -- Rick Perry, Energy -- Dec. 1, 2019 (45 months)
58-41 -- Ben Carson, Housing and Urban Development -- Jan. 20, 2021 (46 months)
56-43 -- Rex Tillerson, State -- Mar. 31, 2018 (14 months)
53-47 -- Steven Mnuchin, Treasury -- Jan. 20, 2021 (47 months)
52-47 -- Tom Price, Health and Human Services -- Sep. 29, 2017 (8 months)
52-47 -- Jeff Sessions, Attorney General -- Nov. 7, 2018 (21 months)
51-50 -- Betsy DeVos, Education -- Jan. 8, 2021 (47 months)
n/a -- Andrew Pudzer, Labor, withdrawn (replaced by Alex Acosta, 60-38 -- July 19, 2019 (27 months))

Only four cabinet nominees had been confirmed by the fifteenth day of Trump's term (and thus theoretically could have been counted as serving a full 48 months had they remained in office to the end): James Mattis, John Kelly, Elaine Chao, and Rex Tillerson. Of those, only Chao almost made it, missing the four-year mark by 20 days. The longest-serving Trump cabinet member was Devos, who fell just 18 days short of four years, then Chao, and then Mnuchin, who was 24 days shy of 48 months.

It may be worth noting that Donald Trump was very slow to fill many positions, especially those below cabinet level but still requiring Senate confirmation. And he also had an enormous amount of turnover in his first two years. Rachel Maddow had a running gag where she would present the ever expanding list of Trump administration staff who had departed early. She eventually filled a wall with four columns in small font.

I'm not sure I have time to compile the list of Obama's original nominees either, but I'm doing it anyway:

n/a -- Robert Gates, Defense (appointed by George W. Bush in 2006) -- last day June 23, 2011 (= 29 months for Pres. Obama)
v.v. -- Tom Vilsack, Agriculture -- Jan. 13, 2017 (96 months)
v.v. -- Arne Duncan, Education -- Jan. 1, 2016 (83 months)
v.v. -- Stephen Chu, Energy -- Apr. 22, 2013 (51 months)
v.v. -- Janet Napolitano, Homeland Security -- Sep. 6, 2013 (56 months)
v.v. -- Shaun Donovan, Housing and Urban Development -- July 28, 2014 (66 months)
v.v. -- Ken Salazar, Interior -- Apr. 12, 2013 (51 months)
v.v. -- Ray LaHood, Transportation -- July 2, 2013 (53 months)
v.v. -- Eric Shinseki, Veterans Affairs -- May 30, 2014 (64 months)
94-2 -- Hillary Clinton, State -- Feb. 1, 2013 (48 months)
80-17 -- Hilda Solis, Labor -- Jan. 22, 2013 (47 months)
75-21 -- Eric Holder, Attorney General -- Apr. 27, 2015 (75 months)
60-34 -- Tim Geithner, Treasury -- Jan. 25, 2013 (48 months)
n/a -- Bill Richardson, Commerce, withdrawn (replaced by Judd Gregg, also withdrawn, then by Gary Locke, v.v. -- Aug. 1, 2011 (29 months))
n/a -- Tom Daschle, Health and Human Services, withdrawn (replaced by Kathleen Sebelius, 65-31 -- June 9, 2014 (62 months))

I've used the abbreviation "v.v." for voice votes, in which the Senate didn't bother with a formal vote and just asked for unanimous consent to which no one objected, so there was no count. Obama later had four replacement cabinet nominees confirmed by a unanimous formal vote: Leon Panetta for Defense (100-0) in 2011, Ernest Moniz for Energy (97-0) in 2013, Anthony Foxx for Transportation (100-0) in 2013, and Robert McDonald for Veterans Affairs (97-0) in 2014. Trump had just the one unanimous vote noted above and no voice votes for his cabinet nominees.

Tom Vilsack served longest in Obama's cabinet. As noted, Obama had a rocky start with two positions whose nominees withdrew (twice for Commerce), but once in place, at least twelve of Obama's fourteen originally confirmed cabinet members served through at least the end of his first term. The first quasi exception is Hilda Solis, who did serve through the end of Obama's first term but who departed one-month shy of a full four-years. House Republicans were said to be investigating some malfeasance at the Labor Department at that time, but nothing ever came of it. Later that year, she started campaigning for a seat on the Los Angeles County Board of Supervisors, which she won in 2014 and where she remains to this day. The other exception, Commerce Secretary Gary Locke, was appointed by Obama as Ambassador to China in 2011 and remained in that role until 2014. In addition, Obama's original Defense Secretary, although not nominated by him, did leave about halfway through Obama's first term. Nobody left a cabinet position during Obama's first term due to scandal.

By contrast, four of Trump's fifteen original cabinet members served until his final month in office, when two of them then resigned in protest over his support for the insurrection.

Since I was curious, I checked: the two votes against Hillary Clinton's nomination were Jim DeMint of South Carolina and David Vitter of Louisiana. Neither man is still in Congress. DeMint resigned partway through his second term in 2013 to lead the Heritage Foundation (a conservative think tank), while Vitter didn't seek reelection following his second term and became a lobbyist in 2017. Two other senators didn't vote: Ted Kennedy, who was ailing, and Clinton herself. There were two vacancies: Al Franken's narrow 2008 victory over for Norm Coleman for Minnesota's seat wasn't final until July 2009, and Ken Salazar of Colorado resigned the previous day to become Obama's Interior Secretary, leaving a one-day gap until Michael Bennet was seated to replace him.