In the Senate, one senator can hold up anything.
And, in the Senate, a determined supermajority of senators can overcome a blockade erected by that sole senator on a nomination or a piece of legislation.
It simply takes time.
That aforementioned supermajority can thwart the tactics of the lone senator bottlenecking the parliamentary traffic. Eventually. Senators must file “cloture” and later “invoke” cloture. That’s the Senate term for overcoming a filibuster. And if senators can cobble together a coalition of 60 of their colleagues on legislation or just 51 for a nomination, the singular senator filibustering the issue at hand is blocking things on borrowed Senate time.
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But what happens when a single senator holds up an entire slate of nominees? Or, in this case, the routine promotions of 250 military flag officers? These are the top military leaders in the country.
That’s what unfolded over the past few months. Sen. Tommy Tuberville, R-Ala., is blocking the promotions as a protest over the Pentagon’s abortion policy. Following last year’s Dobbs Supreme Court decision, the Pentagon implemented a plan that would give pregnant women on the armed forces health care plan time off to travel across state lines for abortions. A number of states imposed strict limitations on abortion in light of the Dobbs opinion. Service members can’t control where they’re assigned to serve. So the Pentagon put forth a policy which would give women the opportunity to receive reproductive health care if they so chose.
Tuberville’s move prevented the Marine Corps from having a Commandant.
Marine Commandant Gen. David Berger stepped down a few weeks ago. Gen. Eric Smith is up for the job. But he’s only the acting Commandant since the Senate hasn’t been able to advance his promotion due to Tuberville’s roadblock. The Senate just conducted a confirmation hearing for Air Force Chief of Staff. Gen. Charles Q. Brown to become Chairman of the Joint Chiefs of Staff — the top military post in the U.S. However, Brown’s matriculation could fall victim to Tuberville’s hold later this year.
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Defense Secretary Lloyd Austin spoke to Tuberville about his holds last week. But it’s unclear if they can bridge the impasse.
Let’s now examine the parliamentary mechanics of Tuberville’s “holds” for the armed forces.
There is no “rule” in the Senate which addresses “holds” on nominations or promotions. It’s kind of a Senate custom. But, truly a “hold” in the Senate is “withholding consent.” In other words, Tuberville is telling other senators that he won’t allow votes on the promotions of senior military officers quickly. Thus, the senator is “withholding consent.”
So let’s explore the question of “consent” in the Senate.
The Senate typically regards a swath of military promotions of this caliber as “non-controversial.” The Senate, Pentagon and the administration have already vetted the service personnel tapped for these positions. It’s rare that senators would find a red flag at this stage which could sidetrack a promotion. Thus, the Senate often advances the promotions “en bloc.”
In other words, the Senate takes a batch of the promotions — if not all — and considers them simultaneously. It’s the most efficient way to move.
Promotions of this nature are subject to one round of cloture.” In other words, one filibuster. And since we are dealing with a “nomination” (promotion), only a simple majority is necessary in the Senate to overcome a filibuster (usually 51 yeas).
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Confirmation of the promotion would come next. That also entails a simple majority.
More than 250 military promotions are pending. But doing them one by one could really start to chew into the Senate’s schedule. Floor time is the most important commodity in the Senate. The more time the Senate burns on promotion, the less time is has to address other nominations – let alone legislation.
Here’s the process:
Let’s say this all begins on a Monday. Senate Majority Leader Chuck Schumer, D-N.Y., calls up a single nomination/promotion on the floor. Tuberville would indicate he intends to filibuster — not granting consent. So Schumer would immediately “file cloture” on that individual nomination/promotion. By rule, the Senate requires an “intervening day” before it may vote on “invoking cloture” or breaking Tuberville’s filibuster.
So Tuesday serves as the intervening day. Cloture “ripens” for a vote on Wednesday. If the Senate secures a majority to overcome the filibuster on Wednesday, Tuberville and other senators then have the right to require the Senate incinerate another portion of time before a final vote to confirm the nomination or promotion. Thus, the Senate may not actually vote to approve the promotion until Thursday or so.
So, so each nomination may take about four to five days — depending on what time of day the process started.
Senate Armed Services Committee Chairman Jack Reed, D-R.I., recently excoriated Tuberville for the time burn.
“The senator from Alabama often says if we really wanted these generals and admirals, we would just vote. But I’d like to explain that the senator is now allowing a simple vote. He is demanding cloture on every nomination,” said Reed.
The Rhode Island Democrat then explained how his staff commissioned the Congressional Research Service (CRS) to figure how much time the Senate would consume, processing each promotion singularly. Reed says the CRS determine if the Senate did nothing but these military promotions and worked around the clock, it would consume “668 hours” or “27 days.” If the Senate devoted eight hours of its day just to military promotions, the process would devour 84 consecutive days.
“So just vote is not an answer,” snapped Reed. “This is not a feasible solution.”
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This is why the Senate often gets “consent” — or, as it’s known on Capitol Hill “unanimous consent” — from all 100 senators to advance a slate of non-controversial nominees or promotions together. This is “en bloc.” But the catch is that all 100 senators must be in agreement.
Provided all 100 senators are on board, the Senate Majority Leader often often tees up a unanimous consent request which hurdles the filibuster bar and even confirms the nominations/promotions all at once. But if a single senator objects, the gig is up.
This expedited process may still happen on a large chunk of nominations/promotions — even if a senator has a reservation about one or two particular people. If a senator insists, the Senate might then just vote on that individual nomination/promotion.
This is why Tuberville’s decision to withhold consent is important. He’s applying his senatorial prerogative toward more than 250 flag officers up for promotion all at once. Not just an individual officer.
Sen. J.D. Vance, R-Ohio, recently placed holds on all of President Biden’s nominees for the Justice Department in retaliation for the prosecution of former President Trump.
Both Tuberville and Vance are well within their rights as senators to engineer this gambit — even if it’s a rarely utilized one. That’s especially true with the case of Tuberville, applying this toward a bundle of routine promotions.
Floor time is paramount in the Senate. Tuberville has capitalized on an issue important to him. And unless the Senate wants to carbonize weeks and weeks on routine, non-controversial promotions, Tuberville is so far prevailing in his protest over the military’s abortion policy.