Sen. Hawley's 'holds' on Biden nominees are hostage-taking, not policymaking

Sen. Hawley's 'holds' on Biden nominees are hostage-taking, not policymaking
© Greg Nash

Sen. Josh HawleyJoshua (Josh) David HawleyState watchdog to launch review of Biden's Afghanistan withdrawal Juan Williams: Trump's toxicity fuels fear of violence Pentagon, State Department square off on Afghanistan accountability MORE (R-Mo.) announced last week that unless national security adviser Jake SullivanJake SullivanSullivan raised normalizing relations with Israel during meeting with Saudi crown prince: report Biden struggles to rein in Saudi Arabia amid human rights concerns Hillicon Valley — Presented by LookingGlass — World leaders call for enhanced cooperation to fight wave of ransomware attacks MORE, Secretary of State Antony BlinkenAntony BlinkenNuclear watchdog: US, Iran entering 'decisive' period on resuming talks Sullivan raised normalizing relations with Israel during meeting with Saudi crown prince: report Democrats call for State to lift ban on embassies discussing same-sex marriage MORE and Secretary of Defense Lloyd AustinLloyd AustinOvernight Defense & National Security — Presented by Raytheon Technologies — Navy probe reveals disastrous ship fire response Pentagon says almost half of Afghan evacuees at US bases are children Russian fighters escort US bombers over Black Sea MORE resign, he will place a hold on all of President BidenJoe BidenBiden: Democrats' spending plan is 'a bigger darn deal' than Obamacare Biden says he's open to altering, eliminating filibuster to advance voting rights Biden: Comment that DOJ should prosecute those who defy subpoenas 'not appropriate' MORE's nominees to the State and Defense Departments. He claims this is necessary to extract accountability for what he says has been a botched withdrawal from Afghanistan.

This is wrongheaded.

The idea of senatorial holds is in some sense anti-democratic to begin with. Yet senators of both parties have chosen to keep the device as a way of enhancing their individual power. “Holds” can put off votes on nominees indefinitely, and end only when a senator’s demands are met in whole or part, or if Senate leadership devotes scarce floor time to overcoming a filibuster and moving to a vote. Holds are a mechanism for an individual senator, even if likely to be outvoted even 99-1 on a given nominee, to demand attention from the Executive Branch, say on an issue of particular importance to that senator and his or her state. They also can appropriately be used if a candidate for office requires more vetting, perhaps because a staffer working for a given senator or committee has uncovered something concerning about the candidate that requires further investigation prior to a vote.

ADVERTISEMENT

The Senate’s prerogatives in the personnel domain stem from its constitutional authorities to give "advice and consent" over nominees for mid- to high-ranking Executive Branch positions — normally at the level of assistant secretary and above, as well as ambassadorial nominations. This is an important element of the nation’s system of checks and balances. Executive Branch officials not only support the president’s policy agenda, they implement whatever laws and allocate whatever budgets are approved by the Executive and Legislative branches acting together. As such, their obligations are to the government and to the nation as a whole. Congress is, therefore, on solid footing in exercising its prerogatives over these positions, diligently and carefully.

However, while vetting candidates and voting promptly on their suitability for office is essential, and very much constitutional, the practice of holds is not inherent to our system of government. Indeed, holds were not even commonly exercised until recent decades, having originated as an informal courtesy that senators extended to one another on the basis of the chamber’s reliance on “unanimous consent” to conduct much of its business. Today, the use of holds is overly expansive, as the Hawley case exemplifies. In a period of exceptionally complex national security challenges, they can harm U.S. national security.

The use of a hold to try to force the resignation of a sitting official escalates the concept dramatically beyond its original intent. Moreover, if there ever were a situation in which a hold could be appropriate for such purposes, this is not it. To be sure, the collapse of the government in Afghanistan has been tragic, and raises serious questions about specific choices that could have been made differently. But in this case, even more than in most, the policy was clearly President Biden's. One of us (Twardowski) agreed with the policy, while the other (O'Hanlon) didn't. But once the United States was down to nearly zero troops on the ground in midsummer, we were likely to lose most control of the situation. As ugly as August in Afghanistan was — and as tragic as was the Aug. 26 truck bombing that killed 13 brave Americans, as well as the ensuing U.S. retaliatory strike against the wrong target in Kabul — by that point any plausible scenario was likely to be bad. 

For some, Biden’s policy of rapid U.S. departure this year was a mistake; the policy implementation, however, was hardly an unmitigated disaster — and it was in implementation where Sullivan and Company arguably played their greatest roles. On balance, the evacuation effort was impressive, removing more than 120,000 Americans and Afghans — about as many people as were airlifted out of Vietnam over a 14-month period in 1975-1976, according to Vice Chairman of the Joint Chiefs of Staff Gen. John Hyten. Even after the departure of all U.S. troops at the end of the month, remaining Americans still have been able to leave the country.

This is hardly America’s finest hour. But it has not been a complete debacle or bloodbath.

Hawley, who supported former President TrumpDonald TrumpHarris stumps for McAuliffe in Virginia On The Money — Sussing out what Sinema wants Hillicon Valley — Presented by Xerox — The Facebook Oversight Board is not pleased MORE's deal with the Taliban and criticized President Biden for not pulling all U.S. troops out by May, as the Trump deal required, seems to think there was a foolproof way to depart the country without any serious consequences. That is not persuasive. Among other problems, his approach sends a chilling signal to future policymakers: It may be better to kick a perceived failure down the road rather than face the risk of ending it, because the political costs to doing so are higher than simply passing it along to another administration. 

Moreover, there are other costs to Hawley placing holds on Biden's nominees. For one, America's allies may have felt differently about the United States's coordination with them if the United States had all its ambassadors, especially at NATO, in place. 

The Senate is an institution that was designed to be insulated from the national swings of politics more than the House is. But something as fundamentally undemocratic as a hold can only make sense — if ever — when a senator has a specific concern relating to his state, expertise or congressional responsibilities. It is not appropriate for general policy disagreements, which should be addressed through normal order. The Constitution ultimately empowers the president with the conduct of the nation's foreign policy; for Sen. Hawley to block President Biden from appointing anyone and everyone he wants is to thwart the design of the Constitution and to escalate the imposition of a hold to the taking of political hostages.

Michael O’Hanlon is a senior fellow in foreign policy at the Brookings Institution. Adam Twardowski is a senior research assistant in foreign policy at Brookings.