A little over three years ago, Senator Mitch McConnell stood on the Senate floor and issued a warning to the Democrats who then controlled the majority.
“I say to my friends on the other side of the aisle, you’ll regret this,” McConnell, then the minority leader, told them. “And you may regret it a lot sooner than you think.”
At the urging of Majority Leader Harry Reid, Democrats had just voted along strict party lines to change the rules of the Senate, deploying what had become known in Washington as “the nuclear option.” McConnell and his Republican colleagues were furious. Under the new rules, presidential nominees for all executive-branch position—including the Cabinet—and judicial vacancies below the Supreme Court could advance with a simple majority of 51 votes. The rules for legislation were untouched, but the 60-vote threshold for overcoming a filibuster on nearly all nominations was dead.
As Donald Trump prepares to assume the presidency this afternoon flanked by Republican majorities in Congress, McConnell’s warning is looking more and more prescient. Trump may win Senate confirmation of his entire Cabinet, and while Democrats will oppose many of his nominees, it was their vote in November 2013 that helped pave the way for their success.
“Certainly it would have been easier to defeat them had the rules not changed,” Senate Minority Leader Charles Schumer acknowledged on Thursday. The New York Democrat has mocked Trump’s nominees as the “Swamp Cabinet” and has spent the last few weeks denouncing the incoming president’s picks for their conflicts of interest, unpaid taxes, and their adherence to rigid conservatism. He’s accused Senate Republicans of trying to jam through the nominees with quick hearings and minimal vetting. “From top to bottom, it’s clear that Republicans were attempting to orchestrate a cover up of the president-elect’s swamp cabinet,” Schumer said. “Senate Democrats and the American people won’t stand for it.”
But can they stop it?
While Democrats plan to allow at least two of Trump’s nominees to be confirmed Friday after his inauguration, they have identified eight of his picks as “controversial” and are demanding either more information or a lengthy floor debate before a vote. Those include Rex Tillerson for secretary of state, Steve Mnuchin for treasury secretary, Senator Jeff Sessions for attorney general, Representative Tom Price for health and human services secretary, and Betsy DeVos for education secretary. Yet because of the rules change, Democrats can only stall for so long—probably a few weeks in total. They need at least three Republican defections to defeat any nominee, and so far not a single GOP senator has said they would vote against a Trump choice.
Schumer has voiced regret about the nuclear option since Trump’s election, telling CNN earlier this month that he had argued internally for keeping the 60-vote threshold not only for Supreme Court nominees but for the Cabinet as well.
Reid, who retired earlier this month, has no such regret. “I doubt any of us envisioned Donald J. Trump’s becoming the first president to take office under the new rules,” he wrote in The New York Times in December. “But what was fair for President Obama is fair for President Trump.”
Democrats had grown frustrated over the GOP’s frequent use of the filibuster, either to block nominees from receiving an up-or-down vote or simply to gum up the works in the Senate and limit how many people the Democrats could confirm. Reid and his allies have said winning confirmation of three judges to the D.C. Circuit Court of Appeals—widely considered the nation’s second most powerful court—alone justified the move.
It was obvious Democrats would have less power to block Trump nominees immediately after the election. But the impact of the 2013 rules change is becoming even more apparent as Trump’s nominees face the kind of problems that have forced potential appointees to withdraw in the past. Democrats have, for example, assailed Price for buying stock in a medical-device company just a week before introducing legislation that would have benefitted the firm. Representative Mick Mulvaney, Trump’s pick for budget director, disclosed that he had failed to pay more than $15,000 in federal taxes on a household employee. A similar issue forced Tom Daschle to abandon his nomination for health and human services secretary eight years ago. DeVos has yet to detail how she will comply with conflict-of-interest laws as education secretary.
So far, however, the only complaints have come from Democrats. Republicans have stuck with Trump, treating the Democratic huffing-and-puffing with a collective eye roll. “Thank you for this anger management hearing,” Senator Pat Roberts quipped after one Democrat laid into Price at his hearing before the health committee on Wednesday. McConnell has suggested Democrats simply haven’t gotten over their election defeat.
The only nominee who has run into trouble with Republicans so far is Tillerson, who annoyed Senator Marco Rubio by refusing to call out Vladimir Putin and other regimes for human-rights violations. Rubio hasn’t said how he’ll vote on Tillerson’s nomination in the Foreign Relations Committee, and his opposition could jeopardize the former ExxonMobil’s confirmation. Other Republican senators, however, have predicted that all of Trump’s nominees would be confirmed.
That hasn’t happened at the beginning of a presidency since the Reagan years. While the Senate hasn’t rejected a nominee in a floor vote since 1989, each president in the last three decades has seen at least one of their original nominees withdraw under political pressure.
Would Democrats have been able to block a number of Trump’s nominees if the filibuster threshold were still 60 votes? “For a variety of different reasons, I think they would have been,” said Jim Manley, a former spokesman for Reid and Senate Democrats. Manley’s reasoning, however, rests as much on the Beltway changing norms as it does on the particular revelations Trump’s nominees are confronting. “In years past,” he said, “there had been some sort of an idea that presidents deserve to have their nominees in place absent some serious allegations of misconduct. But that was then, and this is now.”
Another ex-Reid aide, Adam Jentleson, argued that the rules change didn’t alter the dynamic as much as it might seem. Even though Cabinet appointees needed bipartisan support to overcome a filibuster, their nominations only imploded once members of the majority party started peeling away. “If those nominees could have gotten more than 50, they would have been put on the floor,” said Jentleson, who is now a senior strategic adviser for the political arm of the liberal Center for American Progress. “There’s a different set of considerations that go into Cabinet nominees. People believe the president deserves to eventually have his team in place.”
“If you're going to sink a Cabinet-level nominee,” he added, “you’ve got to sink them on a simple majority vote. That’s always been the case, and it still is today.”
A filibuster can’t defeat a nominee outright; it only postpones indefinitely an up-or-down vote. And over time, Jentleson said, Democrats would have to defend why they were preventing someone who had the support of a majority of the Senate from taking office. That political pressure, he noted, is what forced Republicans to eventually confirm Loretta Lynch as attorney general in 2015 after a lengthy delay. “The public will stomach delay, especially when they are unanswered questions,” Jentleson said. “But they probably won’t stomach indefinite blocking.”
Still, the factors that a president considers when choosing how and where to spend political capital go beyond simple vote counts, and it’s possible the Trump team would have chosen different nominees if they knew they’d need Democratic support in the Senate.
For now, Democrats are using the leverage they do retain to drag out the confirmation of Trump’s Cabinet for a few more weeks in the hope that more scrutiny and at least the hint of scandal will cause Republicans to abandon the more controversial picks. And there’s some hope they might work. “I think it's very possible that one or more are not going to be able to survive the process,” Manley said.
If nothing else, they reason they can inflict some political pain on Trump and the Republicans while showing the Democratic base that they won’t “be rolled over” by the new president, Manley said. Yet the likelihood is that before spring arrives, Trump will have most if not all of his Cabinet nominees in place. Confirmation delayed, after all, is not the same as confirmation denied.