Biden’s choice of Labor Secretary may not have the votes. She may also not need it.

WASHINGTON — The Senate has stalled on President Joe Biden’s choice for Labor Secretary Julie Su, and Democrats face a conundrum over how to proceed.

Nearly five months after Su’s nomination, it’s still unclear when — or if — the chamber will hold a vote to confirm her. If confirmed, Su would be the first Asian American to serve as Cabinet Secretary under Biden. She has the support of many Democrats and labor leaders.

But Su, who currently serves as acting labor secretary, could continue to run the department anyway. Federal law places no limit on how long Su can serve as acting labor secretary without being confirmed. A 1946 law, amended in 1986, authorizes the assistant secretary of labor, whom Su held under the previous title, to “perform the duties of secretary until a successor is appointed”. The rule is unique to the Department of Labor — many other federal job postings are governed by the Vacancies Act, which requires replacements for certain federal agencies within 210 days.

“I hope she gets the votes to become secretary. Otherwise, of course, she should stay where she is,” said Sen. Bernie Sanders, I-Vt., chairman of the health committee, of the Education, Work and Pensions (HELP), in a short interview: “She does a great job. Why don’t you?”

Su’s nomination has been stuck in a holding pattern with key centrists – including Sens. Kyrsten Sinema, I-Ariz. and Jon Tester, D-Mont. — refusing to say publicly where they stand.

After months of silence, Sen. Joe Manchin, DW.Va., spoke out against Su’s nomination Thursday, calling her “more progressive background” an obstacle when it comes to forging “compromises.” acceptable to both parties. He said he wanted a voice for “both labor and industry” in the role of labor secretary.

All three voted to confirm her as Assistant Secretary of Labor in July 2021, but she won no Republican votes, leaving little hope of garnering GOP support for a promotion. Without Manchin, in the 51-vote majority, she would need all 50 other Democrats in the caucus.

The stalled nomination presents a dilemma for Biden.

Keeping Su without a confirmation vote would be met with rejection from Republicans and potentially some Democratic skeptics. But pulling it out could present other headaches for Biden as he eyes re-election in 2024. Pulling the worker-backed Su and finding a more business-friendly candidate risks backfiring on cornerstone unions. Democratic electoral power. Biden has promised to be “the most pro-union president” in US history. It could also upset prominent Asian Americans, who have previously criticized Biden for his inadequate representation of the rapidly growing population in the administration’s top posts.

The HELP committee voted along party lines, 11 to 10, to advance Su’s nomination on April 26. But there has been no movement since then, an unusual break for a top contender.

Sen. Mazie Hirono, D-Hawaii, said Senate Democrats are missing a vote, but declined to say who she was referring to. She challenged the senators who still haven’t decided on their position on Su, calling it “unfair” to the candidate.

“It would be a terrible thing for someone as qualified and capable as her to withdraw her nomination,” she said. “She deserves our full support… All Democrats have backed her as an MP. She’s already shown her ability to lead this department as secretary.

Some of Su’s Democratic supporters back her to stay on as interim leader if she can’t be confirmed, while others refuse to go along with the idea, hoping she will eventually win Senate approval. .

“It is important that we have a secretary at work and she is already doing the job. So yes, that would make sense,” said Sen. Mark Kelly, D-Ariz.

Sen. John Hickenlooper, D-Colo., echoed his colleague, noting admiration for Su’s qualifications.

“I’m not sure I really understand the reasons beyond politics why she had to face, you know, a steep incline to be confirmed,” he said. “But as far as my perspective on what this country needs…she is.”

But Democrats who keep quiet about Su aren’t so sure she should go without formal confirmation.

“I can’t stand this myself. I did not support him during the last administration. I’m not supporting him in this one,” Tester said. “I just don’t think they can do the job they need to do in an interim role,” he added. “That’s my opinion, may be wrong. But I just think there’s a lot more certainty if you’ve been confirmed.

The tester said he was “still taking information” about Su and that the White House had not contacted him about the candidate.

Manchin said he hadn’t thought about the prospect of Su remaining as acting secretary.

And Republicans, who largely oppose the former civil rights litigator’s nomination and have called on Biden to withdraw it, are warning not to keep it without full confirmation.

“I would strongly oppose it,” said Sen. Bill Cassidy of Louisiana, the top Republican on the HELP panel. “It seems to defy advice and consent.”

A White House official said Biden “continues to support” Su for the job and vowed to “continue to fight for” her Senate votes, praising her qualifications. “The president’s support for Acting Secretary Su is unwavering, and we hope that Senator Manchin and Senator Sinema will reconsider their position,” the official said.

Other Democrats are also rallying around Su.

“AANHPI representation is important, but Julie Su is also the most qualified candidate to be our next Secretary of Labor,” Sen. Tammy Duckworth, D-Ill., said in a statement. “There is no one more ready and prepared to lead the Department from day one than she is. Any senator who has voted to confirm the secretary [Marty] Walsh is also expected to vote to confirm acting secretary Su. I know I will.”

Several Democratic senators refused to consider the possibility that Su could not win Senate approval.

“She’s going to have enough voice. We will confirm it,” said Sen. Sherrod Brown of Ohio.

“I’m not going to consider that possibility,” said Sen. Elizabeth Warren of Massachusetts. “I’m a big fan of Julie Su.”

Senate Majority Leader Chuck Schumer, D.N.Y., dodged questions from reporters on Tuesday about whether Su should continue as acting labor secretary if she fails to be confirmed. .

“I think she will make a very good secretary at work,” he said. “And we’re working hard to get it approved.”

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