President-elect Joe Biden’s choice to lead the Pentagon is facing early resistance from Democrats on Capitol Hill, indicating a potentially rocky confirmation process for one of the top Cabinet posts.
Retired Army Gen. Lloyd Austin, who has yet to be officially unveiled as Biden’s nominee for Defense secretary, is already running into stiff opposition from some Democrats, many of whom appeared unwilling on Tuesday to exempt him from a law intended to preserve civilian control of the military.
That rule — which requires a Pentagon chief to be at least seven years removed from the military — isn’t likely to tank Austin’s nomination, with key Republicans saying Tuesday they would support providing the prospective nominee a waiver. But several Biden allies expressed concerns about granting a waiver for Austin just a few years after supporting one for James Mattis, President Donald Trump’s first defense secretary.
“This is becoming a trend, and I don’t like it. It is difficult to imagine voting for a Mattis waiver and not an Austin waiver,” Sen. Brian Schatz (D-Hawaii), who supported a Mattis waiver, told POLITICO. “I think for everybody it’s going to be hard to justify doing it for one distinguished retired general officer and not another.”
Picking a nominee who requires a waiver makes a post that is ordinarily drama-free much more complicated. It also puts Congress in the awkward position of doing something that most agreed should be incredibly rare; a waiver must be approved by both chambers, giving the House a stake in confirming a Cabinet official.
Biden had faced enormous pressure from the Congressional Black Caucus to select an African-American as Defense secretary. Many expected Michèle Flournoy, a former undersecretary of defense for policy in the Obama administration, to be picked to lead the Pentagon, thereby sidestepping the waiver issue. If confirmed, Austin would be the first Black Defense secretary.
“I, like many other senators, have real reservations about giving another waiver under federal law for a recently retired general to become secretary of defense,” Sen. Tom Cotton (R-Ark.) said on Fox News. “I can tell you that senators across the spectrum, from liberal Democrats to conservative Republicans, are opposed to doing that again.”
Austin, who left the military in 2016 after serving for 41 years, led U.S. Central Command, a role in which he was responsible for all U.S. military operations in the Middle East. He was previously the top U.S. commander in Iraq.
After officially announcing Austin as his choice on Tuesday, Biden wrote in an Atlantic op-ed that Austin “should be confirmed swiftly” and said he hopes Congress grants a waiver. The president-elect cited Austin’s role overseeing the drawdown of U.S. troops from Iraq and ending Operation Iraqi Freedom, hailing him as a man of “extraordinary skill and profound personal decency.”
His distinguished record as a military officer, though, doesn’t appear to be enough to move some Democrats.
“I have the deepest respect and admiration for Gen. Austin, and his nomination is exciting and historic. But I believe that a waiver of the seven-year rule would contravene the basic principle that there should be civilian control over a nonpolitical military,” said Sen. Richard Blumenthal (D-Conn.), a member of the Senate Armed Services Committee who opposed a Mattis waiver in 2017. “That principle is essential to our democracy, and it’s the reason for the statute, which I think has to be applied, unfortunately, in this instance.”
Blumenthal and the 16 other Democrats who opposed a waiver for Mattis appeared unwilling to back off their opposition. “I didn’t for Mattis, so I probably wouldn’t for him,” Sen. Jon Tester (D-Mont.) said bluntly.
But Rhode Island Sen. Jack Reed, the top Democrat on the Armed Services panel, expressed openness to supporting a waiver for Austin, even though he said in 2017 that he would not support an exemption for future nominees.
“The burden of proof is on the administration. It also comes down ultimately to the quality of the nominee,” Reed said. “Gen. Austin is an outstanding officer, and I think he should have an opportunity to talk about his vision for the Department of Defense, and that I think is the decisive factor. But still I think the preference would be for someone who’s not recently retired.”
Austin’s nomination is already putting many Democrats who opposed a waiver for Mattis in the politically tough spot of having to reverse course or vote to sink one of Biden’s top Cabinet picks. Democrats who have long favored preserving civilian control of the military indicated they would be willing to give Biden the benefit of the doubt.
“I want to hear from the Biden administration, the Biden team, about why they feel this pick, with the necessary waiver, is so critical,” said Sen. Chris Murphy (D-Conn.), who opposed Mattis’ waiver. “I inherently trust the Biden administration on issues of national security in ways that I do not inherently trust the Trump administration. So I’m certainly — given that I’m a believer in his policy, I’m much more willing to give him deference.”
It’s unclear if Biden’s transition team consulted with Senate Democrats prior to selecting Austin. Senate Minority Leader Chuck Schumer (D-N.Y.) said on Tuesday: “I’m just looking at all of this now.”
Notably, top Republicans, who are favored to retain control of the Senate after the Georgia runoffs in January, suggested they had no issue with granting a waiver to Austin.
“I would do it in a heartbeat,” Armed Services Committee Chair Jim Inhofe (R-Okla.) said. “It’s not so much because of Austin. I don’t know him that well. I just never have believed that we should have to have that seven-year period in there. I just don’t believe that. I would support any of the waivers.”
Though the Senate easily approved a waiver for Mattis in 2017, deliberations in the House dissolved into a partisan battle after Trump’s transition team nixed the retired Marine general’s planned testimony before the House Armed Services Committee. Most House Democrats dropped their support for a waiver after Mattis failed to testify, and the measure passed largely along party lines.
Rep. Elissa Slotkin (D-Mich.), a former senior Pentagon official who worked with Austin, said she isn’t sold. Granting a waiver “just feels off” despite her “deep respect” for the retired four-star general, the House Armed Services member said in a statement.
“[A]fter the last four years, civil-military relations at the Pentagon definitely need to be rebalanced,” Slotkin said. “General Austin has had an incredible career — but I’ll need to understand what he and the Biden Administration plan to do to address these concerns before I can vote for his waiver.”
But Austin got an early boost in his looming confirmation battle from House lawmakers in both parties.
Rep. Anthony Brown (D-Md.), the vice chair of the Armed Services Committee, quickly backed Austin. Brown publicly supported Flournoy to be Defense secretary and voted against the waiver for Mattis.
“Lloyd Austin is top flight and he’s the right choice to lead our civilian & military personnel at the Pentagon,” Brown wrote on Twitter Monday.
GOP Rep. Don Bacon of Nebraska, a retired Air Force brigadier general, also said he’ll support a waiver for Austin.
“It does not bother me to have a retired general be the secretary of defense,” Bacon said in an interview on C-SPAN. “He is retired, so he’s now a civilian.”
“He’ll have to answer some questions during his tenure at Central Command when ISIS took control of a third of Syria and a third of Iraq,” he predicted. “He’ll probably have to answer some questions there. But from my perspective, I think he’s going to be a good choice.”