Wednesday, June 21, 2023: President Biden Nominated Burrows for 3rd U.S. EEOC Commissioner Term
Kalpana Kotagal Nomination for Commissioner Still Awaiting Senate Vote
President Biden nominated Charlotte A. Burrows for a third term on the U.S. Equal Employment Opportunity Commission (“EEOC”). Burrows, currently the Commission Chair, was initially nominated to serve as a Commissioner in 2014 (by President Obama) and then re-nominated in 2019 (by President Trump). Wasting little time, the President formally sent the nomination to the Senate within a few hours of his announcement that he intended to do so. Ms. Burrows’ nomination comes none too soon since her current term of office expires at the end of this week.
If confirmed, Ms. Burrows’ third term will expire on July 1, 2028. Her current term expires on July 1, 2023. However, under Commission Rules, sitting Commissioners may remain in office until the end of the calendar year in which their term of office terms out, if the U.S. Senate does not previously confirm the President’s Nominee to replace a departing Commissioner.
Kotagal Nomination Still Awaiting Full Senate Vote
While the bi-partisan Commission has seats for five Members – three for the party currently in the White House, and two for the opposition party – it currently has only two members from each of the Republican and Democrat parties. Almost three months ago, on March 28, 2023, the U.S. Senate Committee on Health, Education, Labor, and Pensions (“HELP”) Committee voted to advance the controversial nomination of Kalpana Kotagal to fill the fifth EEOC Commissioner slot (see our story here.)
With Republican Janet Dhillon’s resignation from the Commission in early December 2022 (which we reported here), the five Member bi-partisan Committee is currently evenly staffed with 2 Democrats and 2 Republicans. This means that Chair Burrows cannot advance any new Commission policies without bi-partisan support from at least one of her Republican Commissioners.
So, far, Commission leadership has shown little appetite for bi-partisan agreement while awaiting Ms. Kotagal’s confirmation to allow the Chair to drive policies she prefers forward on a 3-2 Democrat Commissioner vote.
Should Ms. Kotagal’s nomination again fail, as it did in the last Congress, the 2-2 Democrat-Republican policy standoff would then continue until December 31, 2023, when Ms. Burrows would roll off the Commission if not confirmed by the U.S. Senate (requiring 51 Senatorial votes in favor of her Nomination. If only 50 Senators were to vote in favor of Ms. Burrows’ nomination, then she could nonetheless also be seated if Vice President Kamala Harris were to cast a tie-breaker vote in favor of Ms. Burrows (as would be expected if it comes down to a 50-50 tie on the Senate floor).
Depending on when, and if, the full Senate votes to approve the Kotagal nomination, Democrats will, for the first time in the Biden Administration, have a 3-2 voting majority on the Commission. However, if the Senate does not confirm Burrows’ or Kotagal’s nominations by the end of the year, the currently tied Commission could have a Republican majority for the second time during the Biden Administration.
Nominations Stalls and Snags
President Biden first nominated Ms. Kotagal on April 5, 2022, to replace Commissioner (and former Chair) Dhillon on the Commission. In September 2022, we reported that Ms. Kotagal’s nomination was a “Political Rugby Scrum in Progress” with the Commission majority at stake.
In June 2022, the President also nominated Karla Gilbride for the position as the EEOC General Counsel. The Senate failed to approve either the Kotagal or Gilbride nominations in the previous (117th) Congress which adjourned January 3rd of this year as the 118th Congress was seated. Nonetheless, President Biden re-nominated them both in January. In February, the Senate HELP Committee reported favorably on Gilbride’s nomination. (Our story is here).
However, even though the Kotagal and Gilbride nominations have now been pending for over a year, Senate Majority Leader Chuck Schumer (D-NY) has not yet scheduled either Ms. Kotagal or Ms. Gilbride for a full Senate floor vote. Given the passage of time since even their renewed nominations, it is clear that Senate Majority Leader Schumer still simply does not yet have the 50 votes needed to get either candidate to at least a tie-breaker vote to insure their confirmation(s).
Moreover, Majority Leader Schumer has much bigger “fish to fry” with the still pending nomination of Julie Su to be the next Secretary of Labor (a Presidential Cabinet nomination) as that also very controversial nomination now enters its fourth month of stalemate. We last wrote about that continuing drama here on June 12, 2023.
One wonders at what point the White House will recognize that a new reality has set in at the United States Senate and that the White House must accordingly “lower its sites” and nominate less controversial federal agency candidates capable of being confirmed pursuant to the “Advice and Consent” of the Senate. The setting in of that reality for Julie Su will likely come in late July if Majority Leader Schumer is unable by then to ramrod the 50 votes he needs soon after the July 4th Senate recess ends on July 17th. The timing of Acting Secretary Su’s confirmation process dictates the timing of the EEOC confirmations, if they are ever to occur, as we point out below.
At that point in mid-July when the Senate returns from its long Fourth of July break to resume business, the White House will have been in a self-described “daily” “war-room” conference for almost two-full months in a “maximum push” to get/find/cajole/coerce Acting Secretary of Labor Julie Su the 50 Senate votes she needs to be confirmed. At that point, the White House and Ms. Su will be half-way into their fifth month trying to find 50 votes (and at a time they appear to be at least four if not five Democrat Senator votes short of the needed 50). Myth of Sisyphus playing out?
At some point all the legislative ”log-rolling” the White House can offer the non-cooperating Democrat Senators will have been exhausted. And, at some point, additional White House offers of even more “pork” financial gifts to the states of the non-cooperating Democrat Senators (financial grants; highway monies; power plant funding; regulatory permits or relief to corporate contributors to the Senator’s Political Action Committee (PAC);–whatever the Senator wants) will become self-defeating as those Democrat Senators already cooperating with the White House on these controversial nominations will begin to wonder what they have to do to get their snouts in the feed trough too?
The Julie Su confirmation Cabinet Member process is important to the EEOC confirmation process because once Secretary Su either fails or wins confirmation (we think up or down by the end of July), the logjam of political appointee nominations will then break. Majority Leader Schumer will then start to work the Senate Floor to see if he can muscle through the Senate the lesser Presidential political appointee nominations, like Ms. Kotagal and Ms. Gilbride (and many others in the nomination process currently sitting in a holding pattern pending the outcome of Julie Su Presidential Cabinet nomination).
More Background: In mid-April, EEOC Vice Chair Jocelyn Samuels (Democrat) and Commissioner Keith E. Sonderling (Republican), in a “Fireside Chat” discussion at DEAMcon23 in Chicago, provided their insights into the Senate confirmation process. (See their comments here).