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Biden's labor secretary pick may not have the votes. She also may not need them.

Biden faces a dilemma on whether to stand by Julie Su, his union-backed nominee. He could also use a law that enables her to stay in place indefinitely on an acting basis.
Senate HELP Committee Holds Nomination Hearing For Julie Su To Be Labor Secretary
Deputy Labor Secretary Julie Su testifies at her confirmation hearing to be the labor secretary on April 20.Kent Nishimura / Los Angeles Times via Getty Images file

WASHINGTON — The Senate is stalled on President Joe Biden’s pick for secretary of labor, Julie Su, and Democrats face a conundrum on how to proceed.

Nearly five months after Su was nominated, it remains unclear when — or whether — the chamber will hold a vote to confirm her. If confirmed, Su would be the first Asian American to serve as a Cabinet secretary under Biden. She has the backing of many Democrats and union leaders.

But Su, who currently serves as the acting labor secretary, could just keep running the department anyway. Federal law places no limits on how long Su can serve as acting labor secretary without being confirmed. A 1946 law, amended in 1986, permits the deputy labor secretary, which Su served as under the previous head, to “perform the duties of the Secretary until a successor is appointed.” The rule is unique to the Labor Department — many other federal job openings are governed by the Vacancies Act, which requires replacements for certain federal agencies within a time constraint of 210 days.

“I hope she has the votes to become the secretary. If not, of course, she should stay where she is,” Sen. Bernie Sanders, I-Vt., the chair of the Health, Education, Labor and Pensions (HELP) Committee, said in a brief interview. “She’s doing a great job. Why would you not?”

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

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

All three voted to confirm her as deputy labor secretary in July 2021, but she won zero Republican votes, leaving little hope of getting any GOP support for a promotion. Without Manchin, in the 51-vote majority, she'd need all the other 50 caucusing Democrats.

The stalled nomination presents a dilemma for Biden.

Keeping Su on without a confirmation vote would face pushback from Republicans and potentially some Democratic skeptics. But withdrawing her could present other headaches for Biden as he eyes re-election in 2024. Pulling the labor-backed Su and finding a more corporate-friendly nominee risks blowback from unions, a cornerstone of Democratic electoral power. Biden has promised to be “the most pro-union president” in U.S. history. It could also upset prominent Asian Americans, who have already criticized Biden for inadequate representation of the fast-growing demographic in the highest-ranking positions of the administration.

The HELP Committee voted along party lines, 11-10, to advance Su’s nomination on April 26. But there’s been no movement since then, an unusual pause for a high-profile nominee. 

Sen. Mazie Hirono, D-Hawaii, said that Senate Democrats are one vote short, but declined to say who she was referring to. She took issue with senators who still haven’t decided where they stand on Su, calling it “unfair” for the nominee.

“It would be a terrible thing for someone as qualified and as competent as her to withdraw her nomination,” she said. “She deserves all of our support... Every single Democrat supported her for deputy. She’s already shown her ability to lead this department as secretary.” 

Some of Su’s Democratic supporters back her staying in the job as the acting head if she can’t get confirmed, while others refuse to entertain the idea, hopeful she’ll ultimately get Senate approval.

“It’s important that we have a secretary of labor and she’s already doing the job. So yeah, that would make sense,” said Sen. Mark Kelly, D-Ariz.

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

“I’m not sure I really understand the reasons beyond politics of why she has faced, you know, a steep hill to get confirmed,” he said. “But in terms of my perspective on what this country needs … she’s it.”

But Democrats who remain silent on Su aren’t so sure she should stick around without a formal confirmation.

“I don’t support that myself. I didn’t support it in the last administration. I don’t support it in this one,” Tester said. “I just don’t think they can do the job they need to do in an acting position,” he added. “That’s my own opinion, could be wrong. But I just think there’s much more certainty if you’ve been confirmed.”

Tester said he’s “still taking input” on Su and that the White House has not contacted him about the nominee.

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

And Republicans, who broadly oppose the former civil rights litigator’s nomination and have asked Biden to withdraw it, warn not to keep her on without full confirmation.

“I would strongly object,” said Sen. Bill Cassidy of Louisiana, the HELP panel’s top Republican. “It seems to defy advise and consent.”

A White House official said Biden "continues to stand by" Su for the job and vowed to "continue fighting for" her to win the votes in the Senate, praising her qualifications. "The President's support for Acting Secretary Su is unwavering, and we hope Senator Manchin and Senator Sinema 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 Labor Secretary,” Sen. Tammy Duckworth, D-Ill., said in a statement. “There is no one more ready and prepared to lead the Department on day one than she is. Any Senator who voted to confirm Secretary [Marty] Walsh should vote to confirm Acting Secretary Su, too. I know I will.”

Several Democratic senators refused to consider the prospect that Su could fall short of getting the Senate’s stamp of approval. 

“She’s gonna have enough votes. We’re gonna confirm her,” said Sen. Sherrod Brown of Ohio.

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

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

“I think she’ll be a very good labor secretary,” he said. “And we’re working hard to get her approved.”