A sequel to this morning’s post. Remember that because Lloyd Austin is a former general who’s been retired for less than seven years, he needs a waiver under federal law in order to serve as secretary of defense. That means both houses, not just the Senate, have to act in order for him to be confirmed. And it means (I think) that 60 votes in the Senate, not 50, will be needed to clear him. Legislation is still subject to the filibuster, after all, and a waiver pursuant to a statute is legislation.

Many a Dem made the point in 2017 when James Mattis needed a waiver that the seven-year rule existed for a reason. Civilian control of the military is a crucial civic principle, and putting a recently retired officer in charge of the Pentagon weakens that principle a bit. In the end, though, Mattis was confirmed overwhelmingly, partly because of the respect he enjoys in Washington and partly because Dems saw him as a figure whose stature might keep Trump from going off the rails. Austin is also well respected for his service but Biden doesn’t need a chaperone. He could just as easily choose an alternative like Michele Flournoy or Jeh Johnson. As such, asking Congress to grant a waiver to Austin is all but asking them to repeal the seven-year rule altogether. If we’re going to let recently retired officers serve as SecDef any time the president asks, why have the rule to begin with?

Some Senate Dems have gone on record today to say no, they won’t grant Austin a waiver. Most notable among them is Biden enemy turned friend Elizabeth Warren, but she’s not alone. Austin could be in trouble. Emphasis on “could be.”

Sen. Elizabeth Warren, a Massachusetts Democrat and member of the Senate Armed Services Committee, praised Austin’s credentials and said that she looks forward to meeting him.

“But I opposed a waiver for Gen. Mattis, and I will oppose a waiver for Gen. Austin,” Warren said. “I don’t think we ought to be doing these waivers.”

“I understand the importance of civilian control,” said Sen. Mazie Hirono, a Hawaii Democrat who sits on the Armed Services Committee. “So I have some concerns about being asked to doing a waiver.”

Sen. Jon Tester, a Montana Democrat, who opposed the waiver for Mattis, said he would do so again for Austin.

I noted in this morning’s post that Richard Blumenthal is also against a waiver. Looks like Austin’s going down. Or is he?

That’s a powerful vote of confidence in Biden’s choice. Another very powerful voice who sounds open to the possibility of confirming Austin today is Jack Reed, the ranking member on the Senate Armed Services Committee. Reed said in 2017 that he couldn’t see himself voting for another waiver for a SecDef nominee in the future after voting for one for Mattis. Today, according to CNN, he sounds … different: “I feel, in all fairness, you have to give the opportunity to the nominee to explain himself or herself… One of the reasons that we were able to reach the position on the waiver is General Mattis had the opportunity to testify and, you know, made some compelling arguments.” So Reed’s gone from a hard no to a “let’s hear him out.” So has Dick Durbin:

How about Kirsten Gillibrand? She was also strongly anti-waiver in 2017. Hmmmm:

Team Joe appears ready to go to the mat for their guy and is surely lobbying Senate Democrats on his behalf behind the scenes. A piece in The Atlantic appeared this afternoon under Joe Biden’s own name making the case for Austin at length:

He was the first African American general officer to lead an Army corps in combat and the first African American to command an entire theater of war; if confirmed, he will be the first African American to helm the Defense Department—another milestone in a barrier-breaking career dedicated to keeping the American people secure…

The next secretary of defense will need to immediately quarterback an enormous logistics operation to help distribute COVID-19 vaccines widely and equitably. Austin oversaw the largest logistical operation undertaken by the Army in six decades—the Iraq drawdown…

Above all, I chose Lloyd Austin as my nominee for secretary of defense because I know how he reacts under pressure, and I know that he will do whatever it takes to defend the American people. When the Islamic State emerged as a terrorist threat in Iraq and Syria, endangering the security of America’s people and allies, President Obama and I turned to Austin, who then led U.S. Central Command. He designed and executed the campaign that ultimately beat back ISIS, helping to build a coalition of partners and allies from more than 70 countries who worked together to overcome a common enemy.

Biden’s piece mentions more than once Austin’s role in supervising America’s withdrawal from Iraq, a feather in his cap for lefty opponents of the war. Team Joe is also pushing Austin on social media this afternoon, featuring audio from the nominee himself:

*If* Biden were facing unified Republican opposition to Austin, he’d be sunk. Even with a 50/50 Senate next year, Schumer would be short of the 10 Republican votes he’d need in order to grant Austin a waiver from the seven-year rule. But Biden’s not facing unified Republican opposition. On the contrary, one of the most powerful Republicans in the Senate on military issues is in Austin’s corner:

The most far-left member of the U.S. Senate isn’t opposed to a waiver either:

A Twitter pal raises a sly possibility. Most Senate Dems might vote no on a waiver for Austin but yes on confirming him whereas most Senate Republicans might vote yes on a waiver but no on confirmation. Depending upon how many defectors there are in each group, it’s possible that he gets the waiver thanks mostly to the GOP and then gets his appointment thanks mostly to Democrats. This morning I was skeptical that he’d be confirmed, but if Biden’s willing to spend political capital on him the way he’s done today then I need to revisit that. This isn’t a trial balloon, it seems, this really is his guy. And considering that he’d be the first black defense secretary in American history, neither side is eager to vote him down. Hawaii Sen. Brian Schatz, a Democrat, said he disliked the “trend” of waivers that started with Mattis and might now continue with Austin — but that that actually *supports* the case for Austin. “It is difficult to imagine voting for a Mattis waiver and not an Austin waiver,” he told Politico. “I think for everybody it’s going to be hard to justify doing it for one distinguished retired general officer and not another.”

The white retired general gets a waiver to lead the Pentagon but the black retired general doesn’t? Not a good look.

I’ll leave you with this counterpoint, though, with which I agree. Someone should remind President-elect “Norms” that this is how norms erode — a member of one party gets away with skirting a rule and members of the other party treat it as license to do the same. If you want to rebuild norms, you have to be willing not to take advantage of a bad precedent, even when you have a defensible reason to do so.