When Marine Corps Commandant Gen. Eric Smith suffered an apparent heart attack on Sunday, the service tapped the three-star commander of its Combat Development Command to temporarily fill in. The move was made because the Corps had been without an assistant commandant since Smith took office in September.
Smith’s hospitalization has called into question what happens if a service is without its top two officers, as the role of assistant commandant is one of hundreds of other positions, including two service chief spots, that have gone vacant for months, as one senator holds up confirmation processes over a disagreement with the Pentagon’s reproductive health care policies.
Since March, Sen. Tommy Tuberville, R-Ala., has refused to vote to confirm flag and general officer nominees, creating a backlog of nearly 400 vacant senior military positions.
“My dispute with the Pentagon is not just about abortion,” Tuberville wrote in an opinion piece for Al.com in May. “It is more about the illegal use of taxpayer funds to facilitate elective abortion.”
While the medical community defines “non-elective” as an emergency, life-saving surgery, federal law allows taxpayer funds to be used to terminate a pregnancy if a mother’s life is in danger, or if the pregnancy resulted from rape or incest. For the Pentagon, that hasn’t changed.
However, after states set about banning or severely restricting abortion access post-repeal of Roe v. Wade, the Defense Department moved to allow troops to take time off and have their travel expenses reimbursed in order to go out of state to obtain legal, non-covered abortions, with the assurance of the Justice Department that paying for hotels and plane tickets is not tantamount to paying for a medical procedure.
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Tuberville doesn’t agree, and has retaliated against DoD by holding up nominations.
On Thursday, the Senate held a special vote to confirm the three highest-ranking open positions, one of multiple piecemeal efforts made to work around Tuberville’s objections.
That included the assistant Marine Corps commandant spot, as Smith was tapped to move from that job to the service’s top spot in July following the retirement of Gen. David Berger. Instead, Smith served as acting commandant until late September, when he was finally confirmed. But Smith’s replacement as top assistant has not yet been confirmed, so he has been, in effect, doing both jobs.
“Nobody should feel bad for me,” Smith told reporters Sept. 6 at the Defense News Conference in Arlington, Virginia, in response to a Marine Corps Times question about his schedule. “I make plenty of money, and nobody usually yells at me, so that’s good. But it is not a sustainable thing when the last thing you do is flip your computer off at 11:30 at night and you’re getting up at 5 o’clock in the morning.”
So, when Smith fell ill, the Marine Corps had to consult Title 10 of the U.S. code, which governs who runs the services when their chiefs are incapacitated.
Figuring out who the no. 3 officer is in each of the services is not a neat, statutorily-controlled process like it is for, say, the White House, where the line runs from the president to the vice president, speaker of the house, president pro tempore of the Senate, and down to the cabinet secretaries.
Unless the president intervenes, that role is filled by the senior-most officer in the service’s headquarters office. For the Marine Corps on Sunday, that was Lt. Gen. Karsten Heckl of Marine Corps Combat Development Command.
Heckl, however, is now back to third in line, as the Marine Corps on Friday swore in Lt. Gen. Christopher Mahoney as assistant commandant.
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Thursday’s vote also paved the way for Adm. Lisa Franchetti, who had been the vice chief of naval operations since September 2022 and served as the acting CNO since August.
Now the sea service is without a confirmed VCNO, though Vice Adm. James Kilby has been tapped as the nominee.
The Navy declined to name a particular officer or position in their headquarters who would be chosen should Franchetti fall ill, but said they would decide based on Title 10.
Generally, the senior-most officer in CNO’s office would be determined by that admiral’s time in service, CNO spokesman Lt. Michael Valania told Military Times on Friday, though the code stipulates the officer must also be “not absent or disabled and who is not restricted in performance of duty.”
Gen. David Allvin was also sworn in as Air Force chief of staff on Thursday, after serving as the vice chief of staff since November 2020 and the acting chief since October of this year.
Lt. Gen. Jim Slife, currently the Air Force’s deputy chief of staff for operations, is the nominee to replace him as the vice chief. He is also the third highest-ranking officer in the Air Force and would fill in for Allvin should he become incapacitated, Air Force spokeswoman Laurel Falls told Military Times on Thursday.
The battle to confirm chiefs for each of the services is over, but Tuberville’s blockade continues to hold up hundreds of other nominations, including those for the VCNO and Air Force vice chief.
Senate Majority Leader Chuck Schumer, D-N.Y., said Thursday he would bring a resolution that would allow the Senate to quickly confirm the remaining nominees.
“If we can’t solve this problem another way, we will all have to vote to move these nominees forward,” he said. “Our military deserves better, our service members deserve better, their spouses and their kids and their entire families deserve better.”
Meghann Myers is the Pentagon bureau chief at Military Times. She covers operations, policy, personnel, leadership and other issues affecting service members.
