Vacancies remain in key Biden administration positions

By Tyler Pager, Ann E. Marimow and Laurie McGinley,

The Biden administration is working to move past the pandemic without a permanent leader for the agency that authorizes drugs and vaccines. Democrats are decrying Republican-led efforts to restrict the right to vote, but President Biden has yet to nominate a solicitor general to represent the government on voting rights and other issues that could come before the Supreme Court.

And the Office of Management and Budget has only an acting director, even as the president seeks a sweeping budget resolution in Congress that would enable his “human infrastructure” plan to pass, one of his top goals.

Biden and his aides consistently tout their “whole of government” approach to solving pressing problems, but several key agencies across the government still have no permanent leaders. As the president approaches six months in office, some of those positions have direct involvement in addressing the crises Biden promised to prioritize at the start of his administration: the pandemic, the economy, climate change and racial inequity.

Each vacancy has its own dynamics. A top candidate for solicitor general, for example, has turned down the job, while the budget position is complicated by competing diversity concerns. But a common thread remains: a delay in nominating leaders who would be expected to be point people for parts of Biden’s agenda.

[The Post is tracking Biden’s picks for key government positions]

There are other significant positions without nominees: a seat on the Federal Reserve Board of Governors, the comptroller of the currency, the assistant attorney general for antitrust, the chair of the Commodity Futures Trading Commission — and the two members of the Council on Environmental Quality besides the chair.

The antitrust position at the Justice Department remains vacant amid an aggressive new push by Biden to promote economic competition. The president signed an executive order Friday taking aim at industries in which a small number of companies dominate the market, declaring that “capitalism without competition isn’t capitalism, it’s exploitation.”

Biden is hardly the first incoming president to struggle with filling key positions. Any new administration faces hundreds of openings at the same time it’s grappling with other urgent challenges. Biden’s pace of nominations is faster than Donald Trump’s, slower than Barack Obama’s and about the same as George W. Bush’s — though unlike any of those three, Biden has decades of Washington contacts to draw on.

Max Stier, president of the Partnership for Public Service, a nonprofit, nonpartisan good-governance organization, compared acting officials to substitute teachers, saying that even if they are good at their jobs it is hard for them to implement far-reaching changes or strategies.

“You might have an amazing educator as a substitute teacher, but it’s still a substitute teacher,” Stier said. “They’re dealing with the issues of the day, but they’re not helping with the things that require longer-term investments.”

White House officials said the administration has named more than 1,000 officials who do not require Senate confirmation, and that the remaining vacancies have not slowed its agenda. They also blamed Republicans for holding up many nominees.

“We are ahead of several prior administrations in terms of nominations sent to the Senate for confirmation,” White House spokesman Chris Meagher said. “We have outstanding acting leaders at FDA, Solicitor General, OMB and OCC, and we look forward to nominating qualified people to these positions.” OCC is the Office of the Comptroller of the Currency, which supervises national banks.

Biden has nominated 304 people out of more than 1,200 civilian positions that require Senate confirmation, according to data compiled by the Partnership for Public Service. Of those, 91 have been confirmed in a Senate that is split 50-50 between the parties with Vice President Harris casting tiebreaking votes.

Advocates worry that some of the openings are in pivotal areas.

“These are really crucial positions in the federal government, and you need people leading those agencies and offices with authority,” said Robert Weissman, president of Public Citizen, a consumer advocacy group. “Acting people don’t bring that authority and can’t undertake long-term projects in the way that full-time confirmed people can.”

The search for an FDA commissioner has been particularly fraught, reflecting a sharp division between critics and supporters of Janet Woodcock, the agency’s acting chief.

Woodcock, who has headed the FDA’s powerful drug division for many years, was named acting commissioner in January. She has been considered one of the front-runners for the permanent job but faces a wall of opposition from a small group of Senate Democrats — including Sens. Joe Manchin III (D-W.Va.), Maggie Hassan (D-N.H.) and Edward J. Markey (D-Mass.) — whose states have been hit especially hard by the opioid crisis. They accuse the FDA of being overly permissive in approving the addictive painkillers for years and say Woodcock, whom they consider too close to the drug industry, deserves much of the blame.

Manchin, whose support is critical for much of Biden’s agenda, has also taken aim at Woodcock for the FDA’s recent approval of a controversial Alzheimer’s drug called Aduhelm. The approval has sparked furious opposition from some scientists who say there is scant evidence of its effectiveness.

On Thursday, the agency revised the Aduhelm label to limit its use to only early-stage Alzheimer’s patients, and on Friday, Woodcock called for the inspector general of the Department of Health and Human Services to investigate the agency’s dealings with Biogen, the manufacturer of the Alzheimer’s drug.

Still, Woodcock has loyal backers inside and outside the agency who praise her broad expertise and no-nonsense style. “She has been a great leader,” said one senior FDA official, who spoke on the condition of anonymity to discuss an internal personnel situation. “We really like her.”

Woodcock has also been credited with restoring morale in an agency that was beaten down after attacks from Trump and his top aides. And she has the support of many patients groups and oncologists who say that her flexibility on regulatory matters has helped fast-track therapies for diseases that have few treatments.

For months, administration officials hoped that the opposition to Woodcock among Senate Democrats would fade. But now some observers say that seems unlikely, especially with the blowup over the Alzheimer’s drug. Woodcock declined to comment.

Several other names have been floated for FDA chief, a search that has also been slowed, in part, by the White House’s effort to select diverse candidates. Only two women have ever been the permanent administrator of the agency, and there has never been a top administrator of color.

Joshua Sharfstein, a former top FDA official who is now a vice dean at Johns Hopkins University, has been mentioned from the outset. Other names have included Michelle McMurry-Heath, a former FDA official who heads the Biotechnology Innovation Organization, an industry trade group, and Florence Houn, a former agency official who worked for the drug company Celgene and is now a consultant.

But it is not clear if any of them are still in the running, and selecting a nominee with ties to the drug industry could be tricky in the current political climate.

Diversity concerns have also complicated the nomination for OMB director. Biden initially nominated Neera Tanden, a former senior adviser to Hillary Clinton, but she withdrew after senators objected to her previous biting criticism of their colleagues on Twitter. The White House then named Deputy Director Shalanda Young, a popular figure on Capitol Hill, to serve as acting director of the office.

Young, who is African American, immediately became the front-runner to get the job permanently. But Asian American groups, disappointed with the lack of representation in Biden’s Cabinet, have pushed the president to replace Tanden, who is Indian American, with another nominee of Asian descent.

They have coalesced behind Nani Coloretti, who served in the Obama administration, but the Biden White House, which has shown disdain for public campaigning for positions, has not signaled any urgency to move on the nomination.

OMB has tremendous influence over a president’s agenda, particularly as the Biden administration looks to use the budget reconciliation process to push the president’s American Families Plan through Congress.

Also unfilled is the high-profile post of solicitor general, the government’s top advocate at the Supreme Court and a role often referred to as the “10th justice.”

Elizabeth B. Prelogar, a veteran appellate lawyer, has been serving as acting solicitor general and is a potential pick for the permanent role. Prelogar, who previously served in the office and as an adviser to special counsel Robert S. Mueller III, would be the second woman to formally hold the position.

Supreme Court Justice Elena Kagan was the first, serving as solicitor general under Obama. “Our Supreme Court bar is woefully lacking in diversity,” said Neal Katyal, who worked under Kagan and then became acting solicitor general himself, adding that “it’s time for another” woman.

People familiar with the process said the administration initially approached another veteran of the office, California Supreme Court Justice Leondra Kruger. Kruger, who is also considered a potential U.S. Supreme Court nominee, turned down the offer, according to a person who spoke on the condition of anonymity to discuss personnel matters. The White House declined to comment on Kruger.

But Prelogar’s path to the solicitor general job could be complicated by a law that limits the president’s ability to pick a person for a job in which she already serves in an acting capacity. That means if Prelogar is nominated, she would have to step down from her current role and move to another job within the Justice Department while she is awaiting confirmation.

Besides representing the government in individual cases, the solicitor general spearheads the administration’s broader Supreme Court strategy — which cases to pursue, which to drop, which arguments to make. At a moment when liberals are on the defensive with a 3-to-6 minority on the court, such strategizing is all the more critical.

The vacancies worry liberals and Democrats who fear their priorities will not be pushed as aggressively during what could be a limited window for Biden’s agenda. And they are concerned the momentum for nominations is flagging.

“It feels like the ones that didn’t get done, it’s dragging on,” Weissman said. “We’re almost six months in.”

Harry Stevens contributed to this report.