News that Sen. Ben Ray Luján (D-NM) had a stroke and was hospitalized last week throws Democrats’ agenda in the evenly divided Senate into question.
Luján’s office said in a statement that the senator is “expected to make a full recovery.” But no one knows for sure how long that will take, so Democrats could be down to just 49 senators for at least some time. (Luján aides estimate he’ll be back in four to six weeks, unless there are complications, according to Garrett Haake of NBC News.)
Unlike the House, which adopted “proxy voting” policies during the pandemic, senators must be present in person to vote. So a prolonged illness that renders a senator’s presence impossible can be a serious complication for a majority, as Democrats experienced in 2009 and 2010 with the health woes of then-Sens. Ted Kennedy (D-MA) and Robert Byrd (D-WV).
That doesn’t necessarily mean the Senate is grinding to a halt or shutting down, or that Senate Minority Leader Mitch McConnell is now in charge. Much of the chamber’s activity has been, and will continue to be, bipartisan. It’s Democrats’ partisan agenda — nominees who can’t get Republican support, and the stalled Build Back Better Act — that will be most harmed. Luján’s absence will essentially require bipartisanship for everything again. (Though not just yet; two Republican senators, Mitt Romney and John Hoeven, are out with Covid this week.)
What Luján’s absence means for nominations
Nominees need a majority of the senators present to get through. So far during Biden’s term, Democrats have had the ability to confirm nominees with their 50 votes alone, plus Vice President Kamala Harris’s tiebreaker if all Republicans are opposed. Luján’s absence means Democrats can no longer win such party-line votes, so long as all Republicans are present.
If Romney and Hoeven return and Luján remains absent, Republicans would theoretically have the power to block all of President Biden’s nominees. Still, there are reasons to doubt that will happen. The vast majority of Biden’s nominees have gotten at least some support from Republican senators; Vice President Harris’s vote has only been necessary to confirm eight nominees so far. GOP obstruction very well might increase now that Republicans actually can spike nominees, but so far they have not seen blanket obstruction as being to their strategic advantage.
Instead, the GOP will likely focus their opposition on a few nominees they deem controversial or unacceptable, or whom they see political advantage in blocking. Lifetime-appointment judgeships will surely be under scrutiny — for instance, Judge Holly Thomas, a Biden nominee to the Ninth Circuit Court of Appeals, was confirmed with zero Republican votes this month, with Sen. Ted Cruz (R-TX) calling her a far-left “activist advocate.” The White House may feel pressured to take controversial nominees off the table until Democrats have 50 solid Senate votes again, but they could also push them anyway and stoke high-profile showdowns.
And, of course, there’s that Supreme Court vacancy. Democrats have been optimistic that Biden’s nominee could win the votes of some moderate Republicans like Sen. Susan Collins (ME), but that will likely depend on who is chosen and how the debate over that nomination plays out. If Democrats are down a senator, that means Collins is the key swing vote they will have to win to get a justice confirmed. That could affect the White House’s calculations about whom to nominate in the first place.
What Luján’s absence means for legislation
For ordinary legislation, such as this month’s expected government funding bill, Luján’s absence probably won’t have much of an impact. Due to the filibuster, almost all bills in the Senate already required 60 votes, meaning all 50 Democrats and at least 10 Republicans. Luján’s absence bumps that up to 11 Republicans, but a substantial level of bipartisanship was already necessary.
But the Build Back Better bill — designed to go through the Senate’s special filibuster-proof budget reconciliation process, and with no hope of getting any Republican support — is more imperiled. Even if Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) are eventually won over, the passage of any reconciliation bill depends on having 50 Democrats present.
If Luján’s health problems stretch on and become a serious impediment to Democrats’ agenda, he may face some pressure to resign. New Mexico has a Democratic governor, so his replacement would also be a Democrat. However, that would trigger a special election for the seat (Luján won it in 2020), something Democrats would surely prefer to avoid.
That’s a question for the future, though. The main impact now is that until Democrats have 50 votes again, the Senate agenda has to be a bipartisan one.