Which is why Republicans are now beginning to think about just how completely they want to obstruct Biden’s presidency if they retain control of the Senate. The likely answer is: “More than anyone could have imagined.”
That obstruction could be unprecedented — not just blocking all significant legislation, not just launching endless bogus investigations, and not even just refusing to allow Biden to fill any judicial vacancies, on the Supreme Court or any other court. Most radically of all, Senate GOP leaders could even refuse to allow the new president to appoint a Cabinet.
But at least one Republican senator wants everyone to know that he wouldn’t do that — or maybe not, anyway:
“When it comes to finding common ground, I will do that,” [Sen. Lindsey O.] Graham told reporters. “The vice president deserves a Cabinet. I’ll give him my input about who I could vote for as secretary of state, attorney general. . . . There may be some people that I just can’t vote for because I think they’re unqualified or too extreme.”
So generous of him! Having spent the last four years as one of the most shameless Trump lickspittles in Washington, Graham (S.C.) will now move to become the “moderate” Republican that Democrats can deal with. But don’t be fooled: If there’s a way to undermine and hamstring Biden, Graham and all the other Republicans will find it and use it.
But this might not be as bad as it looks. In fact, in this area, Republican obstruction could be a gift to Biden.
Here’s some context. Only nine times in U.S. history has the Senate rejected a president’s nominee for a Cabinet position. It has only happened once in the last 60 years, when the 1989 nomination of former senator John Tower (R-Tex.) to become defense secretary was voted down on the grounds that he was a heavy drinker. (Tower denied the charge, but pledged to let no more alcohol pass his lips if he was confirmed; it didn’t help.)
In 17 other cases, a nominee was withdrawn before a vote could be taken because of some controversy or other. But like judicial nominations, Cabinet choices used to be confirmed without much regard to ideology, so long as they were reasonably qualified and not beset by scandal.
But, of course, things don’t work that way anymore. We saw this in 2017, when the collection of (mostly) incompetents and grifters Trump nominated to fill his Cabinet received an unusual amount of opposition from Democratic senators.
It was essentially a free pass for Democrats to make a statement with no practical effect: They could vote no, demonstrating opposition to Trump while knowing that since Republicans had the majority, his picks would still get confirmed.
But in January, we are likely to have a president taking office with a Senate controlled by the other party. The last president who faced that situation was George H.W. Bush, and apart from Tower, all his nominees were confirmed by unanimous or near-unanimous votes.
That will not be the case for Biden. The question he’ll confront is how far Republicans are willing to go to deprive him of the aides he needs to run the government.
They may not yet know themselves. But I’d say that they will string Biden along for as long as possible, telling him they’ll vote to confirm nominees if only he gives them the right ones. How about some centrist Democrats? Well . . . no. Too liberal. How about moderate Republicans? Mmm . . . no, still too liberal. How about different moderate Republicans? Well . . . we’ll think about it. It could drag on for months.
The key question is whether Biden allows them to pull him into that briar patch. Because he has an alternative: He could say, “Confirm my picks, or I’m going to use the Vacancies Act to fill those positions, and you’ll have nothing to say about it.”
“Every president had relied on a version of the Vacancies Act to run the government,” Hauser told me. That’s because it permits the president to take any official who has been confirmed to another position, or any high-ranking and established civil servant already in the government, and use them to fill vacancies.
Presidents routinely use the act this way at various levels, Hauser said, adding that this could be used to fill Cabinet slots. That person can then hire deputies, and the government would operate perfectly well.
It does mean, however, that because they’d have to be drawn from within the government, the acting secretaries would be civil servants instead of the ex-politicians or business leaders who often get those jobs. What if, instead of wrangling over the nomination of some hospital corporation CEO to be secretary of health and human services, Biden just gave Anthony S. Fauci the job?
That’s not to mention that the president can, with the cooperation of the House speaker, declare Congress in recess and then make recess appointments. The very prospect of Biden playing that kind of hardball might make Republicans step back from giving him too much trouble regarding his Cabinet nominations.
As Hauser put it: “Joe Biden does not need to make Mitch McConnell co-president." Now, Biden just needs to realize it.