Donald Trump has assembled his cabinet team to run the gauntlet through the Senate. Will any be defeated? If so, what kind of candidate might be derailed? And has the process become worse over time?
The idea that the Senate would be the gatekeeper for confirming presidential nominees goes back to the Founding Fathers. As Bruce Fein notes in a Harvard Law Review article, “Alexander Hamilton described the Senate confirmation power as ‘an excellent check upon a spirit of favoritism in the President’ and explained that it would deter ‘the appointment of unfit characters from State prejudice, and from family connection, from personal attachment, or from a view to popularity.’”
One of the myths we have about the Founding Fathers was that it was a congenial time, full of bipartisanship, patriotic unity, professionalism in debate, and good will toward man. The truth is far different. Henry Paul Monaghan writes a much different tale for the Harvard Law Review: the story of John Rutledge, one of George Washington’s nominees for Chief Justice. He was a man from the Constitutional Convention, an Associate Justice on the Supreme Court, and an acting Chief Justice on the Supreme Court. But he was bounced for failing to appease the Federalist Senate on foreign policy matters. He tried to commit suicide after being defeated.
In fact, Monaghan notes “[I]n the first 105 years of American constitutional history, almost one-fourth of the nominees (20 out of 81) failed to win confirmation; others were confirmed only after intense controversy.”
It was a very different story during the post-World War II era. Glen S. Krutz, Richard Fleisher and Jon R. Bond analyze 1,464 important nominations from 1965 to 1994. They found that less than five percent failed, and the overwhelming number of failures occurred when the candidate withdrew or the nomination was rescinded by the executive branch. Could it be the bipartisan “Cold War” consensus leading to party unity in the face of communism, collegial relationships between respected Democratic and Republican leaders (like Mike Mansfield and Everett Dirksen), or the legislative branch abdicating its tough vetting role it used to play? No one knows for sure.
Additionally, Nathaniel Rakich with the 538 blog found that of the 109 cabinet-level appointments from Carter to Obama, just six failed. Only one was voted down: Defense Secretary Nominee John Tower, who was the first to be defeated in a vote since 1925, the ninth in American history. The others withdrew their names, or were withdrawn by the President.
But today, we’re heading back to the days of bitter confirmation battles. “The process has become so polarized and so politicized that nominees feel they must mask their views from members of the Senate in a way that makes informed consideration impossible,” writes Geoffrey Stone, the Edward H. Levi Distinguished Service Professor at the University of Chicago, in 2011.
Indeed, confirmation nominations during the Obama Administration became far more contentious, according to Hakich. “President Obama’s confirmations were the rockiest in modern times, due, in some mix, to increased partisanship and poor vetting.” He had more nominees withdrawn than his five predecessors. He had twice as many contested nominations than any other president before him, going back to 1977.
Hakich speculates that Trump Cabinet nominees will get an Obama-like rough ride, but they should be able to ride out the storm, as the GOP controls the Senate and the Democrats gave up the right to filibuster nominees, expecting that 2017 would be about getting Hillary Clinton nominees through the upper branch.
Could a Trump nominee stumble? “Cabinet nominations tend only to fail when dragged down by scandal or impropriety,” Hakich writes. Krutz, Fleisher and Bond claim that nominees can be defeated if opponents “(1) identify negative information about a nominee to provide a rationale for changing the presumption, and (2) expand the conflict through committee hearings and the media.”
Betsy DeVos’ disastrous hearing, where she stumbled through simple questions about education, could cost her. Grammatical errors in her tweets could give her a Dan Quayle image problem. EPA nominee Scott Pruitt will certainly be grilled about campaign financing as much as climate change, while Rep Mick Mulvaney is accused of not paying taxes on a household employee for several years, similar to problems that sank the Zoe Baird and Linda Chavez nominations—and caused problems for Obama’s HHS nominee Tom Daschle. He’s hoping to be Donald Trump’s Budget Director. Those are the four nominations that stand the greatest liabilities to President Trump. Secretary of State nominee Rex Tillerson appears to have weathered the storm, as critic Sen. Marco Rubio announced that he would reluctantly back him despite reservations. This meant Tillerson will advance to a floor vote without a negative vote.
But there are resources a president can use to protect a nominee. “Presidential resources—high public approval and efforts to signal that the nomination is a high priority—increase the chances of confirmation,” Krutz, Fleisher, and Bond tell us. Trump can get his nominees in if he goes to bat for a vulnerable nominee to boosts his or her approval ratings.
John A. Tures is a professor of political science at LaGrange College in LaGrange, Ga. He can be reached at firstname.lastname@example.org.