The Senate Health and Finance committees are due to take up Becerra’s nomination later this month, though only the Finance panel will vote on whether to advance Biden’s pick. As the hearings approach, Democrats in Congress and Biden administration officials remain confident Becerra has the votes to be confirmed — and say efforts to block him from taking the helm of the federal health department in the middle of a pandemic will backfire.
“Republicans are being completely contradictory,” a person close to the administration who was involved in the transition told POLITICO. “They’re saying both that [Becerra] doesn’t have enough health care experience but also that he’s responsible for the pandemic response in California. It’s completely nuts to accuse the AG of that since it’s not something he has oversight over.”
While some public health experts have blamed California’s strict rules for prompting cooped-up residents to rebel and flout precautions, leading to uncontrolled spread of the virus, Democrats stress that it was that Newsom who created the policies — not Becerra.
As the coronavirus overtook California this summer, churches and conservative groups sued over state restrictions, arguing that halting physical services violated their constitutional right to worship.
Becerra argued in multiple courts that indoor congregate activities that involve singing or chanting pose a particularly high risk of transmission and cited several superspreader outbreaks that began in churches in other states. He also faced off in December against restaurants and strip clubs in San Diego County that wanted to reopen as cases, hospitalizations and deaths broke records. The Supreme Court upheld some of California’s restrictions in May, but in December — after Trump nominee Amy Coney Barrett was confirmed to the bench — justices sided with a California church demanding to reopen and asked a lower court to take another look. The restrictions, for now, remain in place.
The Supreme Court upheld some of California’s restrictions in May, but since Trump nominee Amy Coney Barrett joined the bench has twice sided in part with California churches in opinions issued in December and late Friday night. In its latest ruling, the court’s conservative majority blocked the state from banning indoor worship in hard-hit counties but left in place restrictions on capacity limits and indoor singing.
Democrats have pointed to Becerra’s record as California’s top legal officer as a major reason why he’s qualified to run the Department of Health and Human Services, citing his management of a large bureaucracy, his defense of the Affordable Care Act — including a case now before the Supreme Court — and his efforts to crack down on opioid manufacturers and big health companies accused of anti-competitive practices. And defending pandemic restrictions, they argue, was not only part of his job but the right thing to do.
“Whenever there’s a challenge to a state law or executive order, it’s our job to defend it, provided we believe it is constitutional,” Massachusetts Attorney General Maura Healey, who worked with Becerra on several health-related cases, told POLITICO. “What he’s done is consistent with what a number of us have had to do. In my state, for example, we’ve faced over 40 lawsuits over the governor’s executive orders during this pandemic. And people need to remember that those executive orders were born out of science, data and listening to public health experts about what needed to happen.”
But Republicans on the Senate’s two health care committees are planning to argue that California’s handling of the pandemic reflects poorly on Becerra as well as Newsom.
Sen. Mike Braun (R-Ind.), who sits on the HELP Committee, said he’s worried Becerra will bring a big government approach to HHS’ work rather than “a more practical, entrepreneurial” one.
“When you look at places like New York and California that have been two of the biggest places for sheltering at home and big across the board shutdowns — being very bureaucratic in its approach — you see that California is probably showing the worst results of any state in the country, especially now when the virus has really raised its ugly head to a higher level in general,” he told POLITICO. “They’re taking that hard line of doing things that I think are counter to not only public health but just the right decisions.”
Braun is one of several Republicans who have held lengthy calls with Becerra they describe as positive. Braun even praised Becerra’s record on taking on hospitals’ monopolistic practices and pledged to work with him constructively if he’s confirmed.
Yet GOP senators still believe that Becerra is the most vulnerable of all of Biden’s top-tier nominees — even more than Neera Tanden, the White House budget director designate, whose antagonistic Twitter history while heading a liberal think tank has alienated many on the right and left, or Alejandro Mayorkas, whose confirmation was slow-walked by conservatives objecting to his immigration policy views.
Becerra is “considered the most radical nominee and the one members oppose the most,” the senior Republican Senate aide said. “We expect there will be more and louder opposition to him than there was to [Mayorkas].”
“If there’s anyone not likely to make it, it would be him,” another Senate GOP aide added.
Sen. Tom Cotton (R-Ark.), who doesn’t sit on either of the health committees, has for weeks been tweeting and writing op-eds arguing Becerra shouldn’t be confirmed, arguing he would be “Joe Biden’s lockdown enforcer.”
Multiple GOP aides, noting it would take just one Democratic defection to bring the nomination down if the chamber’s Republicans are united in opposition, have floated Sens. Joe Manchin (D-W.V.) and Mark Kelly (D-Ariz.) as potential targets. Manchin’s office would not say if the centrist Democrat has been approached about Becerra and how he plans to vote. Kelly’s office said there have been no GOP efforts to secure his vote and that he is continuing to evaluate Becerra’s qualifications for the job.
Meanwhile, the administration is working to shore up Democratic support and reach across the aisle. Becerra has held virtual meetings with more than 30 senators since he was nominated in December. In addition to highlighting his work on health care as attorney general, his confirmation team has also taken pains to remind lawmakers and the public that Becerra, a former Los Angeles congressman, served for decades on the House Ways and Means committee and helped write and pass the Affordable Care Act.
“With thousands of lives being lost every single day, our nation cannot afford anything but swift confirmation of Xavier Becerra, who brings decades of health care policy experience to the table and as the attorney general of our largest state has fought alongside Republicans and Democrats to expand access to Covid treatments and to hold opioid manufacturers’ feet to the fire,” said Biden transition spokesperson Andrew Bates.
Patty Murray (D-Wash.), who this week became Senate HELP Chair, told POLITICO that scheduling Becerra’s hearing is among her first priorities.
The Finance committee, which will vote to send Becerra’s nomination to the Senate floor, just received Becerra’s background paperwork last week, and is working through it now. Lawmakers are also waiting to learn what the schedule of the upcoming impeachment trial will be and whether committees will be able to conduct other business during that time.
Even if they ultimately lack the votes to block Becerra, Republicans plan to make his road to confirmation a slog. That means going after him in the two hearings and, as they did with Mayorkas, refusing to yield any time when his nomination comes to the Senate floor. As the upper chamber juggles impeachment, the Covid-19 relief package and several other Cabinet nominees, this could drag out the process for weeks.
Though much of the federal government’s Covid-19 response is being run through the White House’s task force, which is already up and running, people familiar with the process said the delay in confirming Becerra makes it more difficult for HHS to make progress on major policy shifts with acting department heads. That could weigh heavily on a new administration eager to unwind a slew of Trump administration rules while shoring up the Affordable Care Act and relying on regulatory initiatives that must be crafted by the health department.
But administration officials are outwardly unconcerned.
Asked in a recent briefing, if the delay in confirming Becerra would stall implementation of a series of Biden executive orders on Obamacare, Medicaid and family planning, one senior official demurred.
“HHS is a big agency,” the official said, praising the department’s career staff. “We expect them to get to work right away.”
