The U.S. Senate on December 8 confirmed Shailen Bhatt to be Administrator of the Federal Highway Administration, by voice vote.

Bhatt had been approved by the Senate Environment and Public Works Committee on November 29, by unanimous vote, and a nine-day gap between committee approval and floor approval is the way things worked back in the Good Old Days (in this context, the 1950s/1960s/1970s) when the Senate was still functional.

But similar Senate precedents from the Good Old Days mean that several nominees for the Amtrak Board of Directors approved by the Senate Commerce, Science and Transportation Committee on December 7 probably won’t be approved by the Senate this year and will get rolled over into the next Congress.

At the markup session that approved five nominees for the Amtrak Board of Directors (all of whom are Democrats), the ranking Republican on Commerce, Roger Wicker (R-MS), said “While I will support reporting the Amtrak board nominees to Democrat seats on the board, I will follow established precedent of withholding support for their confirmation by the full Senate until we have nominees for Republican seats, which are also ready for confirmation by the full Senate.”

The Amtrak Board’s organic statute (49 U.S.C. §24302) says “Not more than 5 individuals appointed under paragraph (1)(C) [which prescribes 8 individuals nominated by the President and confirmed by the Senate] may be members of the same political party.” If the Senate were to confirm the five nominees reported this week by committee, the party margin on the Amtrak Board would be 5 to 1, with 2 Republican vacancies, and if the lone Republican holdover, Jeff Moreland, should leave, it would be 5 to 0.

It is, therefore, not surprising at all that Wicker would insist on holding the Democratic nominees back to wait on Republican nominees to fill out the Board completely. This means that the Amtrak nominees cannot appear on “hotline” unanimous consent requests for the year-end nominations package, since committee ranking minority members get a veto on basic unanimous consent protocols.

And Ted Cruz (R-TX) is very likely to replace Roger Wicker as the head Republican on the Commerce Committee in January, and Cruz does not strike us as the kind of person who would fail to protect his side when it came to filling Amtrak Board seats.

So, the Amtrak Board nominees are likely to be sent back to the President at the close of the 116th Congress at noon on January 3, at which point President Biden could re-submit the nominees. The fact that the Commerce Committee confirmed these five means it is more than likely that he would re-submit these, but the fact that the will probably get sent back at all means that President Biden, who knows a thing or two about Senate precedent, might also want to work with Congressional Republican leaders to find some Republican members to fill the other three seats on the board, if only so the five Democrats can actually be confirmed.