Julie Su's nomination to be Labor Secretary is in serious trouble. As Rebecca wrote, Sen. Joe Manchin (D-WV) came out as a firm "no" vote, meaning it will take just one more Democrat to sink her in the Senate. Sens. Kyrsten Sinema (I-AZ) and Mark Kelly (D-AZ) have been quiet on this nomination, which must give the Biden White House heartburn. Su has been acting labor secretary since the departure of Marty Walsh, and for weeks, the status of her nomination has been rocky. Now, she might not have the votes, but as NBC News highlighted, Biden could invoke a law that could keep Su at the Labor Department indefinitely (via NBC News) [emphasis mine]:
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 had been stuck in a holding pattern with three key centrists — Sens. Joe Manchin, D-W.Va., Jon Tester, D-Mont., and Kyrsten Sinema, I-Ariz. — declining to say publicly where they stand on her.
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. In the 51-vote majority, that means she’d need at least two of the three senators to vote for her.
We'll see what happens, but it wouldn't be shocking if the Biden White House likely goes this route, especially if Sinema jumps on board with Manchin in opposing this nomination. The two often vote in tandem.
UPDATE: This nomination could be cooked:
In the 51-49 Senate, if Sen Sinema is a NO, she and Manchin's opposition would doom Julie Su's chances of being confirm as Labor Secretary. Manchin came out publicly as a NO today, and there are no GOP yes votes for her nomination.
— Frank Thorp V (@frankthorp) July 13, 2023