Tom Williams/CQ Roll Call via AP Images
Julie Su testifies at the Senate confirmation hearing considering her nomination for deputy secretary of labor, March 16, 2021.
Joe Biden on Tuesday announced his intention to nominate Julie Su for labor secretary, replacing the departing Marty Walsh. Su is currently Walsh’s top deputy, and she also will serve as acting labor secretary once Walsh exits, until at least such time as the Senate acts on her nomination. That creates a powerful dynamic for confirmation.
Su, a progressive labor advocate who rose to prominence defending Thai garment workers in Southern California who were effectively enslaved, won confirmation as deputy secretary in July 2021 on a 50-47 vote. The roll call went strictly along party lines, with three Republicans missing the vote.
There has always been a lingering possibility that the two most conservative members who caucus with Democrats—Sens. Joe Manchin (D-WV) and Kyrsten Sinema (I-AZ)—would move to reject Su, or any other progressive nominee, and call for a more business-friendly candidate.
Now, because Democrats picked up a Senate seat in the 2022 midterms, both Manchin and Sinema would have to oppose Su for her to lack the votes for the position. But more importantly, by nominating the acting secretary Biden has created a situation where Su will be in charge of the department both in the months leading up to any vote on her nomination and potentially as long as the administration wants her in the job. Manchin and Sinema have been boxed in.
Under the statute that created the Department of Labor, the deputy secretary is the official with the authority to “perform the duties of the Secretary” should they resign, which Walsh did to take the job as head of the National Hockey League Players’ Association. The statute says that the deputy secretary serves in this position until a successor is appointed. Since Senate Majority Leader Chuck Schumer is under no obligation to put Su’s nomination on the floor for a vote, this means that her position as the legally confirmed deputy, and therefore acting secretary, is indefinite, under the statute.
That puts Manchin and Sinema, if they indeed oppose Su (again, they voted for her confirmation in 2021), in a difficult position. They could publicly come out in opposition to Su’s elevation, but without a vote on her or a replacement, she would be serving in the position anyway.
A similar dynamic arose around Shalanda Young, who is now the White House budget director. She served in an acting capacity at the Office of Management and Budget for months in 2021. After the original nominee, Neera Tanden, withdrew, the nomination lay vacant for months, but Young was doing the job. Eventually she got the nomination and was confirmed, as it was difficult to deny her the position at that point.
If Su is rejected by the Senate for confirmation, under the Labor Department statute, she would still be deputy secretary, and therefore the only official able to serve as acting secretary until a replacement is named. However, the statute holds that “no part of any appropriation contained in this or any other Act shall be paid to any person for the filling of any position for which he or she has been nominated after the Senate has voted not to approve the nomination of said person.” It’s unclear how that would apply to Su, since she would have been duly confirmed as deputy secretary and only fulfilling the acting secretary position as part of the duties of that office.
Presidents with their party in power in the Senate rarely lose on executive branch nominees.
Given the situation, it seems rather unlikely it would even get to this point. Senate leaders rarely put a nomination on the floor if they know it will fail. Su would just keep serving as acting secretary, and that could act as a powerful spur to round up the votes for confirmation, given the circumstances.
Su was the labor secretary under Gavin Newsom in California prior to becoming deputy secretary of the federal department. In 2020, she was criticized by conservatives for her role running the California unemployment system as labor secretary during the pandemic. California’s system was mired with billions of dollars in fraud, but so were most state unemployment agencies in various states.
Meanwhile, Su has broad support across the labor movement, including from the head of the Association of Flight Attendants, Sara Nelson, who was also reported to be in the running for the position.
“Fantastic news for the country!” Nelson tweeted. “Julie Su is the real deal and she will do everything in her power to put working people central to the agenda! I am so proud of her work, her sisterhood and solidarity, her commitment to promote a labor movement for all working people.”
Presidents with their party in power in the Senate rarely lose on executive branch nominees, and the broad support for Su along with her existing position running the Labor Department makes her confirmation very likely.
