Abortion and the Continuing Brouhaha Over General Officer Promotions

If you believe members of the Biden Administration, Alabama Senator Tommy Tuberville’s refusal to consent to “unanimous consent” motions to confirm General Officer/Flag Officer promotions for our military is an existential danger to the republic. So let’s just take a deep breath, lean back in our chairs, and consider what is actually happening.

Because of the Senate’s arcane rules, the Senate gets a significant amount of its work done via the vehicle of “unanimous consent”—i.e., by seeking to pass a measure without actually voting on it. It happens all the time. If you’ve ever watched C-Span covering the Senate, you will often hear a Senator say: “I ask unanimous consent to do such and such.” The usual reply from the presiding officer is: “Without objection, so ordered.” The problem comes when a Senator says, “I object.” That brings the process to a grinding halt. Any single Senator can object to a motion for “unanimous consent,” thereby defeating that very expeditious means of passing legislation or confirming nominees and requiring the Senate to proceed by its ordinary rules, which, being arcane, might take considerable time.

That is what’s currently happening in the Senate. Senator Tuberville from Alabama objects to the policy promulgated by the Secretary of Defense that promises service members seeking abortions government funding to travel from a state restricting abortion to a state with more liberal abortion laws. Senator Tuberville’s response: He has stated that he will object to any unanimous consent motion seeking to confirm promotions for General Officers/Flag Officers until the DOD policy is withdrawn or Congress approves an exception for using federal funds for such a purpose. He has not, as some have claimed, objected to promotions of all officers through Colonel for the Army, Air Force, and Marine Corps and through Captain for the Navy and Coast Guard via unanimous consent.

Senator Tuberville is pro-life and is protesting the Defense Secretary’s decision to allow the use of federal funds for abortion, something which is expressly forbidden by federal law. See 10 U.S.C. § 1093(a) & (b). The Defense Secretary’s policy is unlawful.

Let’s look at what Senator Tuberville is and is not doing. Let’s begin with what he is not doing. He is not forcing the military to go without new senior leaders. You may have heard the incessant crying and moaning about how senior military positions are “vacant” because of his actions. But that is only partially true. Nothing Senator Tuberville has done (or continues to do) – stops or can stop – the Senate from proceeding with confirming President Biden’s DOD nominees. The Senate simply has to do so following the Senate rules which allow for a vote to overcome his objections. Granted, that will be time-consuming. But it has been Senate Majority Leader Chuck Schumer’s choice to decline to prioritize the confirmation of these nominees via existing Senate rules that has resulted in certain senior positions in the military being vacant. Had Senator Schumer started the confirmation process when Senator Tuberville announced his decision to object to confirming the officers by unanimous consent, a significant number of them would already be in office.

What Senator Tuberville is actually doing is exerting what little leverage the Senators in the minority have in shaping Biden Administration policy. Senator Tuberville has asked for one of the following: either to stop the policy (which violates federal law) or to have Congress vote on the issue (i.e., vote either to authorize that the DOD may spend federal funds as it is doing regarding abortion or to determine such funding is impermissible). Although Senator Tuberville is the one being blamed for the impasse by senior Senators on the Left and their allies in the press, the impasse could be resolved overnight if the Biden Administration opted for either of Senator Tuberville’s suggestions.

So the sky is not falling, and the republic is not teetering on the edge of an abyss over the issue of senior officer promotions. Making and implementing political policy is often a messy process. Our forefathers created a system that was designed to work slowly, giving an opportunity for all sides to be heard. What is currently happening in the Senate vis-à-vis senior military promotions is just the most recent episode of our republic slowly and carefully charting the pathway forward.

In a republic like ours, decisions tend to be made by those toward the middle of the political spectrum. That usually means that both Democrats and Republicans must compromise to get things done, and compromise takes time. The issue of abortion remains a lightning-rod issue, even after (or, perhaps, especially after) Roe v. Wade was overturned. It is not likely to go away in the short term. How it will play out in the country remains to be seen, but unilateral decrees by the Secretary of Defense that implicate the use of federal funds for abortion without the express legislative backing by Congress seem to me to be the wrong way to proceed. Senator Tuberville may have temporarily halted appointments in the Senate, but he has a point – and President Biden, Senator Schumer, and the Left in Congress need to take notice.