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Biden urges Senate to confirm historic Pentagon pick despite legal barrier

President-elect Joe Biden (left) retired U.S. Army General Lloyd Austin (Chip Somodevilla/Getty Images/TNS)

President-elect Joe Biden put Senate Democrats in a pickle on Wednesday by tapping retired Army Gen. Lloyd Austin to become the first Black defense secretary in American history despite a longstanding legal barrier that could complicate the ex-general’s path to confirmation.

Austin, who also served as the first African-American commander of the U.S. military’s Middle East command, has emerged as one of Biden’s most contentious Cabinet picks because he retired less than five years ago. By law, a member of the armed forces cannot serve as defense secretary within seven years of retirement, unless the Senate grants a waiver — a rarely used exception that long has been a point of contention for Democrats.

But Biden said this perilous moment in U.S. history requires Austin’s “unique” qualifications.

“There are good reasons for this law that I fully understand and respect,” Biden said of the seven-year restriction, “and I would not be asking for an exception here if I did not believe this moment in our history didn’t call for it.”

As a 40-year veteran of the armed services who climbed the ranks to become a four-star Army general, Austin’s “intimate knowledge of the Defense Department” will be paramount as the U.S. military gears up to play a herculean role in distributing coronavirus vaccine doses next year, Biden said.

Austin’s extensive experience will also be elementary in deterring adversarial threats without engaging in “forever wars,” and his “personal experience” is a harbinger for reform at a time of widespread racial unrest, the president-elect continued.

“At a time when more than 40% of our active-duty forces are people of color, it’s past time the Department had leadership that reflects that diversity,” Biden said.

Speaking after Biden at his transition team headquarters in Delaware, Austin stressed he holds a “deep appreciation and reverence for the prevailing wisdom of civilian control of our military.”

“I recognize that being a member of the president’s Cabinet requires a different perspective and unique responsibility from a career in uniform,” Austin said. “And I intend to keep this at the forefront of my mind.”

The restrictions on Pentagon leadership are rooted in the idea that the nation’s armed forces should not be led by an echo chamber of military commanders. The Founders’ wariness of large standing armies with the power to overthrow the government also plays a role.

Congressional waivers for defense secretaries have only been issued twice in U.S. history — in 1950 for George Marshall and in 2017 for Jim Mattis, President Trump’s first Pentagon chief.

Many Senate Democrats opposed Mattis’ waiver, and they may be hard-pressed to grant one for Austin.

Senate Minority Leader Chuck Schumer (D-N.Y.), who could become the chamber’s majority leader next year, gave a noncommittal answer on Wednesday.

“I’m gonna have to study that,” the New York Democrat told reporters. “Bottom line is that Austin’s a very good nominee and we’ll figure out where to go from there.”

Sen. Richard Blumenthal (D-Conn.) was more forthcoming.

The Connecticut Democrat said that while he appreciates the racial aspect of Austin’s pick, he would vote against a waiver because it “would contravene the basic principle that there should be civilian control over a nonpolitical military.”

“That principle is essential to our democracy,” he said. “I think (it) has to be applied, unfortunately, in this instance.”

Several other Democrats were also uneasy, including Sen. Brian Schatz of Hawaii and Tim Kaine of Virginia.

“This is becoming a trend, and I don’t like it,” Schatz said.

Control of the Senate will ultimately be determined by the outcome of a couple of Jan. 5 runoff elections in Georgia, but, even if Democrats regain their majority, Austin could only lose so many blue votes and still earn confirmation. That means he may have to rely on some Republican support.

Oklahoma Sen. James Inhofe, the Republican chairman of the Senate Armed Services Committee, held off on outright backing Austin’s nomination this week, but told reporters he “always” supports waivers.

Beyond the seven-year restriction, some disappointment abounded from Biden supporters who were hoping the president-elect would tap ex-Obama adviser Michele Flournoy to become the first woman to lead the Defense Department, which has long been male-dominated.

“That sound you hear is the dejected silence of women realizing the bar they have to overcome to achieve their ambitions is (once again) higher than men will admit,” tweeted Katrina Mulligan, a former national security official in the Obama administration. “It is possible to be BOTH enthusiastically supportive of the first black nominee to the position and also disappointed that a qualified woman was passed over.”

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