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Yet Another Invented Power of the Senate

It's a pretty old story at this point, so most readers are probably familiar with it, but Sen. Tommy Tuberville (R-AL) is holding up Senate confirmation of military promotions. That means both changes in grade (e.g., from colonel to brigadier general) and changes in job title (e.g., from Vice Chair of the Joint Chiefs of Staff to Chair of the Joint Chiefs). Since the Senate has to approve any promotion to O-5 (lieutenant colonel/commander) or above, as well as any appointment to a major command post, there are now hundreds of officers left in the lurch, including many who are having to delay retirement and many others who are having to assume their new commands on an "acting" basis.

The bee that is in Tuberville's bonnet (helmet?) is the Biden administration policy that the government will pay travel costs for any member of the armed forces who gets an abortion. The Senator is angry enough about this, or at least is interested enough in doing some high-profile posturing, that he's willing to undermine America's military readiness. The impact probably isn't huge, since the country's active-duty officers are pros, but it's not zero, either.

What enables Tuberville to get away with this is, in effect, the vast size of America's military. When the fellows who created the U.S. government decided that the Senate had to approve high-ranking officers, the armed forces numbered less than 10,000 people, with only a small fraction of those (perhaps 100) requiring Senate attention. Now, the number of officers is in the thousands. The Army alone, just to take one branch, has 15 full generals, 42 lieutenant generals, 101 major generals, 111 brigadier generals, 3,687 colonels and 8,696 lieutenant colonels. That's 12,652 people who had to be confirmed to their current rank. Add in the appointments to key commands (e.g., Joint Chiefs, Commander of the Pacific Fleet, etc.), plus the other five branches, and the Senate has to approve thousands of military appointments and promotions each year.

Since the Senate cannot plausibly give serious attention to that many military officers (not to mention all the civilian appointments), the workaround is that the majority leader brings up one, or ten, or fifty names for confirmation, and asks for unanimous consent. As long as nobody objects, the promotion is approved, and the Senate can polish off dozens or even hundreds of approvals in a single day. After all, they know the candidate has already been vetted by their branch, not to mention by 15-35 years of military service. But if a single member objects, as Tuberville is doing, then the confirmation has to go through regular order. That means multiple hours for each candidate, including debate and a roll-call vote of all the senators. Multiply that by 250 or so (the number of backlogged promotions), and the Senate might well end up spending all of its working time between now and the next election if they tried to do it that way.

Of course, it is entirely possible to pick a few key appointments (say, Joint Chiefs) and just do those through normal order. Those ultra-high-ranked postings are probably worth a few days' of the Senate's time. However, Senate Majority Leader Chuck Schumer (D-NY) doesn't want to do that because it effectively lets Tuberville off the hook. To the extent that there's pressure on the Senator from Alabama, it's because he's mucking around with the highest ranks of the armed forces. If Schumer takes up all the really big promotions and handles them through normal order, then all Tuberville would be doing is keeping a bunch of lieutenant colonels from becoming colonels. And that would cause the various folks, including people in the Department of Defense, and many of Tuberville's Republican colleagues, to stop twisting his arm. Schumer wants all the arm-twisting possible.

And note that while Tuberville is currently the guiltiest senator, when it comes to this particular trick, he's not the only one. Sen. J.D. Vance (R-OH) likes what he's seeing, and is threatening to block any new Department of Justice confirmations until the Biden administration ends its "persecution" of Donald Trump. Sen. Joe Manchin (D-WV) won't let any environment-related appointments go through until the White House gets less aggressive about climate change. And Sen. Bernie Sanders (I-VT) is blocking health-related positions until he sees a plan for reducing drug prices that he likes.

Needless to say, it was never the intention of the Founding Parents to allow one senator to gum up entire segments of the federal bureaucracy. Again, back in the 1780s and 1790s, they did not envision how large the government would be, and how important unanimous consent would be to keeping the machine operating. The Senate could change its rules—say, to make it much easier to invoke cloture on confirmations. The problem is that the senators want to be able to gum up the works when it suits their needs, so there's no way that 51 of them will agree to a change. And so it is that senators have an incredibly broad power that appears nowhere in the Constitution, and that the other two branches (and the lower chamber of Congress) can do nothing about. (Z)

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