Sen. Tommy Tuberville (R-Ala.) and Senate Democrats remain locked in a struggle in which the Alabama Republican refuses to relinquish his hold on general and flag officer promotions as long as a Biden administration policy to reimburse troops who travel out-of-state to obtain an abortion remains in place.
Yet while both sides agree the 2024 National Defense Authorization bill is the likely mechanism for resolving the dispute, that leaves a growing list of nearly 200 nominations in limbo until Congress takes up the measure. Last year’s bill wasn’t signed until Dec. 28.
Among the 197 pending nominations, 89 belong to the Department of the Air Force, and dozens more are stacked up in the Pentagon.
Any senator can put a hold on nominations, and historically, the power has been used to address particular issues related to a specific nominee. But when Tuberville placed his hold on all general and flag officer nominations March 8, preventing the Senate from confirming them by unanimous consent, he created an unprecedented backlog.
Tuberville opposes the Pentagon’s new reproductive health policy, created in the wake of the Supreme Court’s decision in Dobbs v. Jackson, the case that overturned Roe v. Wade. In response, the Department of Defense said it would provide paid leave and travel expenses for service members located in states where abortion services were not available.
Tuberville maintains the Senate can vote on nominees one at a time, instead of relying on unanimous consent to quickly clear all of them at once. But Senate Democrats and administration officials have criticized the hold.
In a letter to Sen. Elizabeth Warren (D-Mass.) last week, Defense Secretary Lloyd Austin III, in a letter said the delay in action on nominations harms national security and military readiness by threatening the Pentagon’s ability to function.
Tuberville countered in a speech on the Senate floor on May 11 that Austin’s letter was “long on opinion, short on facts,” and asserted the DOD policy violates the Hyde Amendment, a law that prohibits federal funding for abortions.
“The United States Senate has had more than 30 days off already this year,” Tuberville said. “If we want to pass this, let’s vote. But we’ve had 30 days off. That’s not including weekends. The rhetoric just doesn’t match the reality. This is more than enough time for us to have confirmed literally all of the nominations we’ve been talking about. We could’ve already done this.”
The problem is that such votes are procedurally burdensome under Senate rules, which require at least 16 Senators to sign a cloture motion to end debate on each pending nomination. After that, the motion must “ripen” for two days, then a vote is required to end debate, followed by two more hours of consideration before a final vote to approve or reject the nomination.
Cloture motions can be “stacked” so the two-day waiting period does not constantly restart. But the two hours of consideration cannot be skipped without unanimous consent, and every roll call vote in the Senate takes time. Roughly speaking, it would take around three hours to get through the necessary cloture vote, final consideration, and nomination vote for each of the 197 nominees. That adds up to around 590 hours, or more than 24 days of non-stop exclusive Senate action.
Stretched out over a more regular schedule, it would take months to work through all the nominations individually, according to a Senate Democratic aide said.
Alternatively, the Senate could select which nominations to take up. For example, if as expected Air Force Chief of Staff Gen. Charles Q. Brown Jr. is eventually nominated to be Chairman of the Joint Chiefs of Staff, lawmakers could take up that nomination alone.
The Senate aide said, however that there are no plans to do that so far. Senate Majority Leader Sen. Chuck Schumer’s office did not immediately respond to a request for comment, and Pentagon press secretary Brig. Gen. Patrick S. Ryder—whose own promotion to major general is among those pending—declined to comment on the possibility of individual votes.
Contact between the Pentagon and Tuberville’s office has been minimal. An official in the senator’s office confirmed that there has been one contact at the staff level in the past month.
Pressure to push the nominations through is growing as the summer moving season and planned retirements and rotations get caught up in the delay. Chairman of the Joint Chiefs Gen. Mark A. Milley’s term as Chairman ends Sept. 30, and his successor will have to go through the normal vetting process with hearings and meetings with Senators. Work on the annual defense bill is behind, both because the Pentagon was late in delivering its budget to Congress and because Congress has been delayed as lawmakers negotiate over the looming debt ceiling.
When Congress does turn its attention to the NDAA, there are still hurdles to overcome.
Democrats want Tuberville to try to overturn the Pentagon’s policy by offering an amendment to the NDAA prohibiting the Pentagon from providing travel expenses and time off for troops seeking abortions out of state. They say lawmakers have agreed in the past to drop holds or other procedural maneuvers in exchange for a public vote on an issue of concern.
But Tuberville and Sen. Mike Lee (R-Utah) argue that the Pentagon should first suspend its policy, then ask Congress to approve such spending. Tuberville’s office confirmed that he would drop his holds if the administration followed that process.
Either way, resolution on the abortion matter would remain in limbo for months. Only once in the past decade has Congress passed an NDAA before Nov. 25.
In a release, Tuberville’s office noted that “holds” by Senators on nominations are not uncommon. Indeed, Sen. Elizabeth Warren (D-Mass.), who has been one of the leading critics of Tuberville’s hold, placed a hold on the nomination of Air Force Secretary Frank Kendall in 2021 until he agreed to extend his industry recusal from two to four years.
Beyond the sheer number of nominations Tuberville has on hold, another issue at play is whether or not the selection of Huntsville, Ala., survives as the future home of U.S. Space Command. The Air Force identified Redstone Arsenal, Ala., as its preferred location in 2018, but accusations of political favoritism instantly followed and a final decision is still pending years later.
Tuberville wants the Air Force to finalize its choice and proceed with Redstone, while Colorado’s Sen. Michael Bennet, a Democrat, is fighting to keep the command headquartered at Peterson Space Force Base, where SPACECOM is today. Tying the two together is Bennet’s argument that Alabama’s restrictive abortion laws would negatively affect female service members, a factor he says should be counted against Redstone as a suitable location.
NBC News reported on May 15 that the Biden administration might backtrack on plans for SPACECOM at Redstone, quoting anonymous officials saying the reason was in part due to Alabama’s restrictive abortion laws. But that doesn’t mean Redstone holds the key to resolving the issue.
In fact, it seems there is one issue on which Tuberville and the White House see eye to eye: that there is no connection between the SPACECOM headquarters decision and the promotion hold. According to NBC News, White House officials said did not see the two as related. As for Tuberville, his office said that even if the White House agrees to move the SPACECOM headquarters to Alabama, he’s not ready to drop his promotion holds.