Biden’s request to waive law for Defense nominee puts Democrats in a bind

Democratic senators may now have to reverse their previous stance to back Austin, who served 41 years in the Army and retired in 2016

President-elect Joe Biden‘s nomination of retired Army Gen. Lloyd Austin to be secretary of defense has put some Senate Democrats in a bind. In the past, they’ve opposed naming recently retired military officers to the post, yet they don’t want to be seen as blocking the first African American to lead the Pentagon.

Congress waived a law prohibiting the appointment of such officers in confirming President Donald Trump‘s choice for the post, retired U.S. Marine Gen. Jim Mattis, in 2017. But that came over the objections of some Democrats, who may now have to reverse themselves to back Austin, who served 41 years in the Army and retired in 2016.

Sticking to their past stands would mean defying a president from their own party just as he takes office. In announcing Austin’s pick, Biden said he hoped the Senate would grant Austin the same waiver it did Mattis.

Read More: Biden selects retired Army Gen. Lloyd Austin to be secretary of defense

President-elect Joe Biden speaks during an event to announce his choice of retired Army Gen. Lloyd Austin, right, to be secretary of defense, at The Queen theater in Wilmington, Del., Wednesday, Dec. 9, 2020. (AP Photo/Susan Walsh)

Introducing Austin Wednesday at an event in Wilmington, Delaware, Biden said, “He is the right person for this job at the right moment.” He said Austin is “feared by our adversaries, known and respected by our allies.”

He would be the first Black leader of the Pentagon, a historic nomination that could have even more resonance at a time of extraordinary racial tension in the country. Before announcing Austin as his pick, Biden was facing pressure from activists over a lack of diversity in some of the key posts of the Cabinet he was building.

Before Mattis, the only other time Congress approved a waiver was in 1950, for George Marshall.

Rhode Island Sen. Jack Reed, the ranking Democrat on the Senate Armed Services Committee, said at the time of the Mattis confirmation, “Waiving the law should happen no more than once in a generation. … Therefore, I will not support a waiver for future nominees.”

Now Reed is suggesting he’d be open to the possibility for Austin: “I feel, in all fairness, you have to give the opportunity to the nominee to explain himself or herself,” he told reporters Tuesday.

Similarly, Illinois Sen Dick Durbin opposed the waiver for Mattis but now says, “I was so impressed with his performance that I would consider a waiver for Austin, once I get to know him.”

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In this Sept. 16, 2015, photo, U.S. Central Command Commander Gen. Lloyd Austin III, testifies on Capitol Hill in Washington. (AP Photo/Pablo Martinez Monsivais, File)

Civilian control of the military has long been rooted in Americans’ wariness of large standing armies with the power to overthrow the government it is intended to serve. That is why the president is the civilian commander in chief, and it is the rationale behind the prohibition against a recently retired military officer serving as defense secretary.

Some Democrats who agreed to the 2017 waiver saw Mattis as tempering Trump’s impulsive nature and offsetting his lack of national security experience. Now the Mattis period at the Pentagon is viewed by some as an argument against waiving the rule again.

Mattis’ critics say he surrounded himself with military officers at the expense of a broader civilian perspective. He resigned in December 2018 in protest of Trump’s policies.

Chuck Schumer, the Democratic leader in the Senate, struck a cautious tone Wednesday, when asked about a wavier for Austin, saying, “I’m gonna have to study that.”

Senate Minority Leader Schumer
Senate Minority Leader Chuck Schumer (D-NY) speaks during a press conference at the US Capitol on November 10, 2020 in Washington, DC. (Photo by Samuel Corum/Getty Images)

“Bottom line is that Austin’s a very good nominee and we’ll figure out where to go from there,” Schumer said.

Connecticut Democratic Sen. Richard Blumenthal said despite the historic racial angle of Austin’s nomination, he would not vote for a waiver because it “would contravene the basic principle that there should be civilian control over a nonpolitical military.”

“That principle is essential to our democracy. … I think (it) has to be applied, unfortunately, in this instance,” Blumenthal said Tuesday.

Sen. Tim Kaine, a Virginia Democrat, was non-committal, saying in a statement he’d “closely evaluate the implications for waiving the National Security Act requirement twice in just four years.” But Hawaii Democratic Sen. Brian Schatz, went further Tuesday, saying, “This is becoming a trend, and I don’t like it. It is difficult to imagine voting for a Mattis.”

And, with the Senate almost evenly divided politically — with the outcome of two Georgia special elections pending next month — Biden can only lose so many Democrats, which is unusual for an incoming president from the same party. That means he’ll need some Republican support to get Austin confirmed, though, that will be forthcoming, at least in some quarters.

Sen. James Inhofe, R-Okla., the current chairman of the Armed Services Committee, said, “I always support waivers.”

Austin was an unexpected choice as Biden’s secretary of defense nominee. Most speculation centered on Michele Flournoy, an experienced Washington hand and Biden supporter. She would have been the first woman to run the Pentagon.

U.S. Under Secretary of Defense for Policy Michele Flournoy testifies during a hearing before the Senate Armed Services Committee March 15, 2011 on Capitol Hill in Washington, DC. (Photo by Alex Wong/Getty Images)

Austin is widely admired for his military service, which includes leading troops in combat in Iraq and Afghanistan and overseeing U.S. military operations throughout the greater Middle East as head of Central Command.

Still, opposition to another waiver has also come from outside the Senate. Kori Schake, director of foreign and defense policy studies at the American Enterprise Institute think tank, tweeted that she had reluctantly supported a waiver for Mattis because she believed Trump posed “a threat to Constitutional governance domestically and the liberal order internationally. Thankfully, Biden is neither, so the circumstances don’t support a waiver.”

Biden has countered concerns by arguing that Austin knows that a Pentagon chief’s duties are different from those of a military officer. He said Austin is aware that “the civil-military dynamic has been under great stress these past four years,” an allusion to Trump’s hiring of numerous retired generals for key posts early in his administration, including Mattis.

House Speaker Nancy Pelosi, D-Calif., has followed Biden’s lead, announcing her support and calling Austin “particularly well-positioned to lead during this precarious moment.”

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