Updated at 3:07 p.m. ET
President-elect Joe Biden's pick for defense secretary might have a tough time winning confirmation in the U.S. Senate.
Unlike other Biden nominees who also may face skeptical confirmation hearings or tight votes in a closely divided Senate, retired Gen. Lloyd Austin would be running into trouble aside from any ideological or policy concerns that might arise. Instead, it's the fact that he's only been retired from active duty for four years.
Civilian control is a key aspect of the U.S. military, and to underscore that principle, defense secretaries are legally required to have been retired from active duty for at least seven years.
President Trump's first defense secretary, retired Gen. James Mattis, had also been out of active service for less than seven years. Congress passed a waiver allowing him to fill the role anyway, with opposition mostly from Democrats. At the time, several key lawmakers made it clear they likely wouldn't do the same again.
Even as several Democrats who had opposed a Mattis waiver said Tuesday they might be open to granting one for Austin, the Senate's narrow makeup — the best case scenario for Democrats is a 50-50 split — means only a handful of defections could sink Austin's bid.
One key voice in the debate is Rhode Island Sen. Jack Reed, the ranking Democrat on the Senate Armed Services Committee. Four years ago he reluctantly voted to give Mattis a waiver, but said at the time he would never do so again. "Waiving the law should happen no more than once in a generation," Reed said in 2017. "I will not support a waiver for future nominees."
But when Reed spoke to reporters on Capitol Hill on Tuesday afternoon, he sounded open to reversing course.
The lawmaker called Austin a "very qualified general officer" who "brings a lot to the Department of Defense."
"I feel, in all fairness, you have to give the opportunity to the nominee to explain himself or herself. That's what I think the principle is," Reed said, adding that was such the case for Mattis and how he was ultimately confirmed. Reed said it would ultimately be up to the Senate Armed Services chairman to decide to hold the hearing. The chairman, Oklahoma Republican Sen. James Inhofe, also shared a supportive note for Austin on Tuesday, but wasn't sure a hearing could be held before Biden's inauguration.
Still, other lawmakers from both parties responded to the selection with skepticism, citing Austin's recent uniformed service.
"That's the exception, not the rule," Majority Whip John Thune, R-S.D., told reporters Tuesday. "We did that for Mattis, but there is a reason why we have civilian oversight of the Defense Department."
Thune said, "I'm not ruling it in or ruling it out. But I think it's something we'll have to consider when the time comes."
Montana Democrat Jon Tester said he's also opposed — at least initially — to supporting a waiver. "I didn't for Mattis, and I don't think I will for him," Tester told a Capitol Hill reporter, referring to Austin. "Look, I loved Mattis, I thought Mattis was a great secretary. I think this guy is going to be a great secretary. I just think we ought to look at the rules."
Austin would be the first Black defense secretary. The retired four-star general is a West Point graduate who went on to lead U.S. Central Command after decades in the Army.
A source familiar with nomination discussions told NPR that Biden got to know Austin in the White House Situation Room during the Obama administration and came to trust the general and his judgment.
"He also appreciated that Gen. Austin knows the human costs of war firsthand," said the source, who was not authorized to speak to reporters.
The Biden transition has not officially announced Austin's selection yet. Other contenders for the post had been Michèle Flournoy, a former undersecretary of defense for policy who had been seen as the initial front-runner, as well as former Homeland Security Secretary Jeh Johnson.
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