Epic failures and sneaky loopholes in the Senate’s Cabinet confirmation process

Analysis by Zachary B. Wolf, CNN

(CNN) — For all the drama generated every four years by Cabinet appointments, defeat of a nominee by a vote in the Senate is extremely rare.

The only time a nominee by a new president was rejected by a Senate vote occurred in 1989, when George H.W. Bush nominated John Tower, a former senator from Texas, to be his secretary of defense.

Tower was undone by stories of his excessive drinking and what press reports at the time referred to as “womanizing,” and which Pentagon files back then documented as placing “special attention on the secretaries” as an arms negotiator in Geneva.

Tower was the subject of an FBI investigation into drinking and sexual harassment, part of a security clearance check. Compare that situation with Florida Rep. Matt Gaetz, President-elect Donald Trump’s nominee to be attorney general. Gaetz was once the subject of a federal investigation for sex trafficking by the Department of Justice – the same agency Trump wants him to lead. Gaetz says he’s innocent. But the FBI files, which have never been released, seem likely to come up at his confirmation hearing.

Perhaps Trump’s nomination of Gaetz will test the yearslong streak of no Cabinet nominee being rejected by the Senate. Former House colleagues have said Gaetz bragged about sex with an underage girl. Plus, he has earned the enmity of some of his Republican colleagues, although Trump’s influence could overcome all of that.

Or maybe it will be Robert F. Kennedy Jr., the vaccine skeptic Trump is tapping to head the Department of Health and Human Services. Kennedy has a history of drug use, although it’s rarely mentioned these days.

Rather than face the humiliation of a rejection vote in the Senate, Cabinet nominees are more frequently withdrawn when it becomes clear they cannot be confirmed. Every recent president since Bill Clinton has withdrawn at least one of their initial nominees. Clinton’s initial nominee to be attorney general, Zoe Baird, withdrew her nomination after admitting she employed undocumented immigrants to watch her child.

Here’s a look at the Cabinet confirmation process, why it exists, where it’s gone wrong and how Trump wants to find a way around it.

What is the Cabinet?

Presidents lead the federal government with the help of a group of close advisers and the heads of federal agencies like the Department of Justice and the Pentagon. Some members of the Cabinet, like vice president and White House chief of staff, do not need Senate approval. But most of them do.

Some roles, like US ambassador to the United Nations or CIA director, have been at the Cabinet level in some administrations but not all. The current Cabinet, under President Joe Biden, has 26 members.

Why does the Senate get a say in who works for the president?

Article II is the section of the Constitution that deals with the executive branch. In Section II, it makes clear that while the president is the executive, he hires certain positions spelled out in the Constitution and others established by law with the “advice and consent” of senators. If the Senate is in recess, the president can make temporary appointments.

Here’s what it says in the Constitution:

How many people does the president nominate in total?

A lot! The Partnership for Public Service tracks about 1,200 positions, most well below the Cabinet level, that require Senate approval – although the president probably does not have a personal role in most of those. They are handled by his staff or the newly confirmed heads of agencies.

Some positions can go an entire presidency without a nominee. The process has also gotten much slower in recent years.

How does the nomination and confirmation process work?

In modern times, a president-elect nominates his picks for top officials ASAP after winning the election. Planning should ideally begin before Election Day.

Oversight committees in the Senate can conduct confirmation hearings before Inauguration Day on January 20. They can refer nominees to the full Senate or quick votes when the new president takes the oath of office. But things frequently take a lot longer.

How long does a nomination take?

Longer than it used to. Even after Democratic senators pushed through changes to the rules in 2013 to remove the filibuster from confirmation of administration officials, the two parties have gotten more adversarial about the process.

When the elder Bush assumed office in January 1989, senators had already confirmed seven of his 15 nominees, according to the Partnership for Public Service. When Trump started his first term, he had two confirmations for 26 nominees. When Biden took office in 2021, he had one confirmation for 36 nominees. The slowness continues.

The three presidents before Trump’s first term all had more than 200 nominees confirmed by 200 days in office. Trump had 119 and Biden had 118 confirmed nominees at that point, although Trump had nominated far fewer people than other presidents.

Is there a way around the nomination process?

Sort of. There is that mention in the Constitution of recess appointments – something Trump has said he wants to use.

While his fellow Republicans who will control the Senate in January have not rejected the idea, leaders like Sen. John Thune also clearly don’t want to give away their power over oversight. Plus, recess appointments only last until the end of the next Senate session, usually around the calendar year.

Trump, frustrated with the process during his first term, appointed multiple people to be “acting” heads of agencies, but they can only serve in that capacity for a matter of months, according to law. There are also limits on who can be made an acting secretary.

Why doesn’t every president use recess appointments?

Presidents like Ronald Reagan, Clinton and both Bushes did use recess appointments, although usually for positions below the Cabinet level. Only three Cabinet secretaries have been appointed during a recess since 1900, according to the Senate Historical Office. The most recent was Mickey Kantor, who served briefly as Clinton’s secretary of commerce.

When Barack Obama used recess appointments to make the National Labor Relations Board function, he was sued. The US Supreme Court ruled it takes at least a 10-day recess to justify a recess appointment.

So that was the end of recess appointments?

So far, yes. Senators have simply stopped taking long recesses. The last 10-day recess they adjourned for was in 2016, according to records kept by the Senate Historical Office. Instead, they will take short breaks, and a single senator can enter the chamber every few days for a “pro forma” session during which no business is typically conducted.

Could Senate Republicans just take a recess and let Trump appoint a Cabinet?

Technically, yes.

While Democrats can no longer filibuster Cabinet nominees, they can slow the process down. It’s possible Republicans could decide to adjourn for a long recess, but it would be an incredible abdication of power by GOP leaders. It would certainly be the subject of a lawsuit, and there’s some evidence a conservative Supreme Court would be skeptical of an effort to fill Trump’s Cabinet in a manufactured recess.

Is there a loophole?

There is another clause in the Constitution that some Trump allies are looking at. The House and Senate are each given the power to adjourn, but for anything longer than three days, they need each chamber’s approval. If the House and Senate can’t agree, the Constitution says this about the president:

So if Senate Republicans don’t want to give up their power, it is technically possible that House Speaker Mike Johnson could get the House to pass an adjournment resolution the Senate would not agree to. Trump could then adjourn the Senate for 10 days to ram through a Cabinet.

Let’s explore that. Johnson is set to have a very slim majority. He’d need every House Republican to go along with him in a quest to declare parliamentary war on a Republican-controlled Senate. Seems extremely unlikely to happen. But who knows.

The president has never in US history tried to adjourn the House and Senate using this authority. The Senate Historical Office said it was not aware of serious discussion about this particular clause in the Constitution since the 1930s.

The conservative legal expert Edward Whelan writes about this idea in The Washington Post and encourages Johnson to shoot it down.

Who was the first Cabinet nominee to be rejected?

The first Cabinet officer to be rejected was Roger B. Taney, who then-President Andrew Jackson wanted as Treasury secretary in 1834 to gut the Second Bank of the United States, the precursor to the Federal Reserve. (Trump, coincidentally, would like to exert more power over the Federal Reserve today.)

Senators rejected Taney even after he served in the post temporarily, according to an account by the Senate Historical Office.

Then, the Senate rejected Taney when Jackson put him forward for a Supreme Court nomination. Jackson then put Taney forward again, but this time for chief justice of the Supreme Court. Taney was ultimately confirmed and, as chief justice, swore in Jackson’s hand-picked successor, Martin Van Buren, who, coincidently, the Senate had rejected as Jackson’s ambassador to England.

Taney, appointed for life to the Supreme Court, was ultimately an epic historical villain. He wrote the Dred Scott decision, which ruled that Black Americans could never be citizens.

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