As part of last night’s 10 p.m. Senate “wrap-up” activities, the Senate confirmed, by unanimous consent, the nomination of Robert Primus to a second term as a member of the Surface Transportation Board.

Primus was first confirmed in November 2020 to the remainder of Deb Miller’s five-year term, which expires ten days from today. The new term to which he has been confirmed will last a full five years, to December 31, 2027.

Of course, it’s relatively easy to get the Senate to confirm you by unanimous consent when (a) there is no controversy about your particular nomination, and (b) your confirmation won’t upend the partisan balance of your proposed workplace.

In Primus’s case, the Surface Transportation Board is currently full and will still be full after his swearing in for his new term, and in both cases the party line will be three Democrats and two Republicans, the ratio assumed by law when a Democrat occupies the White House.

This is not the case with the five nominees for the Amtrak Board of Directors who were approved by the Senate Commerce, Science, and Transportation Committee on the same day that the panel confirmed Primus’s nomination. At present, the Amtrak Board is entirely filled with holdovers whose terms have expired, and of the eight Senate-confirmed Board slots, five are Democrats and one is a Republican.

President Biden proposed to re-fill those five Democratic slots with four new Democrats and one Democratic re-nominee, but to leave the one Republican (who has been serving in a holdover capacity for seven years) in place and to leave the other two Republican slots vacant.

This is not the way the Senate works, and Republicans seem determined to make sure that no unanimous consent requests to tee up Senate votes on the five pending Amtrak nominees are agreed to until President Biden nominates the two (or three, if Jeff Moreland wants off the Board) Republican members called for in the Amtrak statute and the Commerce Committee confirms them as well.

Majority Leader Schumer could muscle them through if he can get 50 votes and VP Harris for each one. But it is time-consuming (around 4 hours of floor time per nominee, including two roll call votes each), and the Senate is hurrying to adjourn for the year by Friday. Moreover, some Democrats are hesitant to do things like that, in anticipation of the day that a Republican Senate and Republican President might try to stack other boards and commissions by refusing to nominate any Democrats.

So it appears that President Biden will have to re-nominate these five Democrats next year, and in order to get them through the Senate, he will also have to nominate two or three Republicans to the Board as well.