Why Senators Rebel

Imagine you’re a member of the U.S. Senate, constitutionally charged with vetting Donald Trump’s nominees to federal agencies and courts.  (Don’t panic. It’s only pretend.) More specifically, imagine that you’re a Republican senator, under pressure from your base and your leadership to confirm as many nominees as possible as swiftly as possible.

Maybe you love this president. Maybe you hate him. Maybe you hate him but represent a state that loves him. No matter: Team loyalty dictates that you give his picks every benefit of the doubt.

So what happens when a nominee lands in your lap who is so unqualified, politically toxic, or otherwise problematic that you simply cannot vote “yes”?

For real Republicans serving in the real Senate, this is when things get interesting.  

Majority members recognize the political hazards of crossing a president from their own party, not to mention one with an itchy Twitter finger. That said, they also want to avoid being tagged partisan lickspittles willing to swallow whatever this president dishes out. These days, with Republicans taking heat for circling the wagons around Trump even on radioactive matters like the Russia probe, it makes increasing political sense for lawmakers to signal their non-lickspittleness by taking on some of the president’s more alarming nominees.

Just don’t read too much into their pushback.

As is often the case, such mini rebellions tend to be driven at least as much by concerns over pet issues, institutional prerogatives, and personal pique as by concerns over the actual quality of Trump’s choices. “Anybody who’s saying, ‘Oh, there is a concerted effort behind the scenes’ is probably going out of their way to make themselves seem good,” cautioned a Republican aide. “Like everything in politics, this all comes down to people and personalities.”

Already, Trump has had nominees fail for a wide range of posts, including cabinet seats (Andrew Puzder for Secretary of Labor), agency chiefs (Scott Garrett at the Export-Import Bank; Tom Marino for drug czar), agency sub-chiefs (Michael Dourson to head the EPA’s chemical safety division), chief scientists (Sam Clovis at USDA), general counsels (Ryan Newman for the Army; David Ehrhart for the Air Force), and, of course, judges (Brett Talley, Jeff Mateer, and Matthew Petersen for federal district court seats). Jim Bridenstine’s bid to head NASA is technically alive but widely expected to remain, as a Republican aide put it, “on ice.”

Lawmakers’ reasons for opposing a nominee vary widely, as does the degree to which members opt to make their objections known. “This is all on a case-by-case basis,” stressed the GOP aide.

John McCain, chairman of the Armed Services Committee, was not shy about his displeasure that David Ehrhart, Trump’s pick for Air Force general counsel, came from the defense giant Lockheed Martin. McCain felt that the Pentagon was being stacked with too many industry players. Ehrhart’s nomination never made it out of committee.

Similarly, McCain wasn’t high on Ryan Newman to serve as Army general counsel. Newman does not favor requiring women to register for the draft; McCain does. Newman’s nomination also stalled in committee.

Labor Secretary-wannabe Puzder didn’t rub any one Senator the wrong way so much as multiple Republicans balked at the accusations of spousal abuse swirling around him, as well as his having employed an undocumented immigrant as his housekeeper.

Representative Tom Marino’s shot at drug czar was derailed by revelations that legislation he shepherded in 2016 had knee-capped the DEA’s fight against opioid abuse.

Michael Dourson will not be overseeing chemical safety at EPA thanks to Richard Burr’s and Thom Tillis’s concerns about his consulting work for the chemical industry. In explaining their objections, the North Carolina Senators cited water-contamination crises in their home state.

Scott Garrett will not head the Ex-Im bank because of his assaults on the institution during his time in Congress. Garrett’s antipathy did not sit well with manufacturing and business interests, which in turn did not sit well with some Republicans. Tim Scott and Mike Rounds cast the “No” votes to stop the nomination from clearing the Banking Committee.

Jeff Mateer’s court nomination was abandoned after Judiciary Committee Chairman Chuck Grassley warned the White House that confirmation was a long shot. Grassley and others were troubled by the culture-warring nominee’s past remarks on subjects like gay-marriage (a “disgusting” step on the slippery slope to bestiality, as Mateer sees it), homosexuality more broadly (he’s a fan of conversion therapy), and transgender children (proof that “Satan’s plan is working”).

The ongoing (possibly eternal) delay in Representative Jim Bridenstine’s confirmation to head NASA is seen as a classic case of political score settling. Yes, he lacks the scientific background some might expect in the job. But the bigger black mark, say Republicans, is that, during the 2016 presidential primaries, he attacked Marco Rubio. (Bridenstine was Team Cruz.) Rubio has insisted he doesn’t hold a grudge. Even so, he has emerged as the congressman’s most ardent critic, brandishing the high-minded argument that the space program should be led by a scientist, not a political animal.

Strike one against Sam Clovis was that he lacked the hard-science background typical of the USDA’s chief scientist. Strike two: While co-chairman of Trump’s 2016 campaign, Clovis encouraged foreign-policy adviser George Papadopoulos’s efforts to foster ties between the campaign and Russian officials. Strike three: Clovis’s work as a talk-radio host. Some of his commentary had already drawn fire from Democrats. (Clovis isn’t much for gay rights, and he has his doubts about global warming.) Republicans feared that more controversial shoes were yet to drop. “The guy was a shock jock, and folks didn’t want to have basically another sound bite basically dropping every day of confirmation hearings,” said the GOP aide. “Enough members of the Ag Committee went to [Chairman Pat] Roberts and said, ‘We don’t want to have to deal with this nightmare.’”

Then there’s Louisiana Senator John Kennedy’s shivving of multiple district court nominees. Kennedy was among those put off by Jeff Mateer. (The senator’s office ignored multiple requests to chat.) But his first high-profile takedown was of Brett Talley, the rare nominee to draw a unanimous “unqualified” rating from the American Bar Association. (An erstwhile horror novelist and ghosthunter, Talley had scant trial experience.) Despite his weak resume, Talley’s nomination cleared committee on a party-line vote. But it soon came to light that he’d failed to disclose that his wife is chief of staff to White House counsel Don McGahn, the guy spearheading Trump’s judicial picks. Worse, reports surfaced that Talley had been a prolific poster on a sports website, with many spirited political observations—including a defense of the early KKK.

Kennedy pounced. “I had no idea of his connection” to McGahn’s office, the Senator fumed to reporters. “And he’s never tried a lawsuit in his natural life. And he’s gonna be on the federal bench? Give me a break. A break. It is embarrassing. And I think the president of the United State is getting some very, very bad advice.” Kennedy vowed that, if Talley’s nomination came to the floor, he would vote against him “in a heartbeat—twice, if I can.”

Democrats “were caught off guard, pleasantly” by Kennedy’s stand, a Democratic aide told me. Such statements are invaluable in thwarting bad picks, stressed the aide. “The most powerful thing is for a Republican Senator to signal to the White House, ‘Stop making me eat shit!’”

Kennedy wasn’t done. Just days after Talley withdrew, Kennedy humiliated nominee Matthew Petersen during his confirmation hearing. An FEC commissioner (he had worked closely with McGahn during their time together at the agency), Petersen had no meaningful trial experience. Under Kennedy’s grilling, it became clear that he also had little knowledge of federal trial rules and courtroom procedures. All of which Petersen might have survived if his cringe-inducing testimony had not become a viral web sensation. Kennedy later snarked to a Louisiana reporter, “Just because you’ve seen ‘My Cousin Vinny’ doesn’t qualify you to be a federal judge.”

When Petersen’s nomination followed Mateer’s and Talley’s down the toilet, Kennedy took a swipe at the White House’s selection process. “Our job on Judiciary is to catch any mistakes that have been made,” he told reporters. “I believe that the president is sending some great nominees, but there are some that have been not so great.”

Now, pretty much no one thinks Kennedy acted purely on worries about the specific nominees. He and Don McGahn had clashed over previous nominations. (Kennedy had expected more of a say in certain picks.) The freshman Senator was, in fact, the first Republican to vote against a Trump judicial nominee when he opposed Gregory Katsas—McGahn’s then-deputy—for the D.C. Circuit Court of Appeals. (Katsas was confirmed.) However troubling Kennedy found Mateer, Talley and Petersen, torpedoing their nominations also sent a message to the White House. “That was a shot across the bow of Don McGahn if I’ve ever seen one,” chuckled the Democratic aide.

Not that there’s anything wrong with that. Whatever ulterior motives are at play with this or that nominee, the end result is that at least a few terrible picks get taken out of the game. That may be as close to a win-win as you get in politics today.