All The President’s Men (And Women)

Over the last several days, President-elect Donald Trump has continued to offer the names of the individuals he would like to serve in his administration. While we are still waiting for nominations for key positions at the U.S. Department of the Treasury, the Office of the U.S. Trade Representative, and financial regulatory agencies, yesterday the president-elect did announce his pick for one key economic post: secretary of the U.S. Department of Commerce. President-elect Trump wants Howard Lutnick, the billionaire who runs the investment bank Cantor Fitzgerald, to lead that agency.

Lutnick is one of the president-elect’s less controversial nominees thus far. Political observers and even some Capitol Hill Republicans are skeptical that former U.S. Rep. Matt Gaetz (R-Fla.) will be confirmed as attorney general, for example, or that Peter Hegseth, President-elect Trump’s choice to lead the U.S. Department of Defense, will make it through the Senate confirmation process. Former U.S. Rep. Tulsi Gabbard’s (D-Hawaii) bid to be director of national intelligence also seems to be in trouble.

What will these three nominees, and anyone else put forward for top-level administration positions, have to submit themselves to over the next several weeks in their quest to be confirmed by the United States Senate? This week, we answer that question and look at the ghosts of failed past presidential nominees.

What Does The Confirmation Process Look Like?
Experts at the law firm Arnold and Porter have provided a step-by-step guide to the Senate confirmation process:

• First, nominees must first submit several pieces of paperwork, including a list of political contributions and questionnaires related to their finances, work history, and foreign travel. This step happens prior to a nominee’s name being formally submitted to the Senate for confirmation.
• Next, the FBI and other government investigators use these forms to conduct background checks. This investigation will include interviews with friends, colleagues, and associates of the nominee. This part of the process also must be completed before the nominee’s name is formally submitted to the Senate.
• Once a nominee’s name has been submitted to the Senate, that body will assign the nominee to a committee. This committee will hear testimony from the nominee and vote on whether he or she should move toward a full vote on the Senate floor.
• Prior to this hearing, nominees will typically meet with every senator, with a particular emphasis on those individuals who sit on the committee that will hear testimony from the nominee. Nominees also must fill out a questionnaire from the Senate that members of that body can review.
• If the committee approves a nomination, it then goes to the full Senate for consideration. Under current Senate rules, nominees only need a majority of senators to vote for them in order to be confirmed. Senators cannot filibuster nominations.

President-elect Trump would like to make at least a few tweaks to this process.

First, as noted in last week’s column, he would like to utilize recess appointments, which would allow his nominees to bypass many of the steps outlined above at be confirmed to serve in his cabinet. It is still unclear whether GOP leadership is willing to allow this strategy. In fact, according to The Hill, outgoing Senate Republican Leader Mitch McConnell (R-Ky.), “who usually defends the Senate’s right to exercise its ‘advise and consent’ power over executive branch nominees … declined to offer any advice” to incoming Majority Leader John Thune (R-S.D.) for how to handle recess appointments. “We’ll just see how this unfolds,” he said.

It also has been reported this week that President-elect Trump would like to allow private investigators to take over the duty of completing nominee background checks. This strategy would limit the FBI’s role in the vetting process, but Republican lawmakers do not seem to be on board with this idea. Sen. Lisa Murkowski (R-Alaska), who already has voiced skepticism about Gaetz’s nomination and will be a key vote on nominees, told The Hill, “I get there is distrust by some of the different agencies, and the FBI is not immune from that, but I do think it is vitally important, particularly from a national security perspective, that you have a level of vetting that is thorough. What agenda does the private investigator have?”

Senate Republicans have acquiesced to Donald Trump’s nomination process demands in the past, however. As Ballotpedia has noted, during Trump’s first term in office, the Senate took “several steps to speed up the process from nomination to confirmation for appointees, including proposing limiting debate, canceling an August recess, and changing Senate rules.”

What Is The Normal Timeline For Confirmations?
Given the dizzying pace of nominees’ names coming from the Trump transition in recent days, it seems like the president-elect is working more quickly than his predecessors, but then-President-elect Joe Biden also got right to work in November 2020.

On November 11, then-President-elect Biden announced that Ron Klain would be White House chief of staff. As President-elect Trump has done, Biden followed that news with other top White House staff announcements. (These positions do not require Senate confirmation.) On November 22, Biden selected Tony Blinken as his nominee for secretary of state. The day after, he said he would nominate Alejandro Mayorkas to be secretary of homeland security, Avril Haines to be the director of national intelligence, Linda Thomas-Greenfield to be U.S. ambassador to the United Nations, and former Chair of the Federal Reserve Janet Yellen to be Treasury secretary.

Still, the Trump transition team has acknowledged it wants to faster than past transitions. Spokesperson Brian Hughes told The Hill, “President Trump’s incoming administration is moving at an accelerated schedule in order to make good on getting key nominees confirmed in order to start delivering for the American people.”

Is this speed necessary? The answer to that question is in the eye of the beholder, but in 2017, President Trump’s cabinet nominees were approved relatively quickly. After being formally nominated on January 20, 2017, Secretary of State Rex Tillerson, Secretary of Treasury Steve Mnuchin, Attorney General Jeff Sessions, Secretary of Health and Human Services Tom Price, Secretary of Education Betsy DeVos, Secretary of State Elaine Chao, and Secretary of Veterans Affairs David Shulkin were all confirmed within four weeks. Secretary of Defense James Mattis was confirmed the day President Trump took office, January 20.

To be sure, the time it takes to complete the presidential confirmation process has lengthened over the last two generations. According to the Partnership for Public Service, the average Senate confirmation process for all presidential appointments, not just cabinet nominations, took more than twice as long during the first Trump administration (115 days) than it did during President Ronald Reagan’s time in office, when the average was 56.4 days. That lengthening is mostly attributable to the time it takes to confirm individuals for sub-cabinet roles, however. During the first Trump administration, the average length of time between nomination and confirmation for cabinet nominees was just 30.9 days.

Of course, some nominees never make it to a Senate floor confirmation vote.

A (Very) Short History Of Discarded Nominees
Based on history, it is very unlikely the full U.S. Senate will reject the Gaetz, Hegseth, and Gabbard nominations in a formal vote. In fact, in the last 235 years, the upper chamber of Congress has voted down just nine cabinet-level nominees. The last one was in 1989 when George H. W. Bush nominated John Tower, a former U.S. senator, to be secretary of defense. His background check revealed a history of alcohol abuse, compromising situations with members of the opposite sex, and questionable ties to defense contractors.

The Senate rejected Tower by a vote of 47–53.

The second most recent rejection came in 1959 when President Dwight D. Eisenhower nominated Lewis Strauss as secretary of commerce. This rejection was largely personal: Strauss was the very unpopular leader of the U.S. Atomic Energy Commission. In a Senate floor speech, then-Sen. Gale McGee (D-Wy.) said, “I was impressed by Mr. Strauss in the first days of the hearing … It was only after that he began to unfold the step-by-step evasion and snow us with words instead of direct answers to questions, and sometimes use downright deceit and falsehood, in reply to questions which had been asked.”

The small number of rejected nominees is skewed by the fact that some controversial nominees have withdrawn their bids before they are ever voted upon. Still, this number also is relatively small. Only 18 cabinet nominees have withdrawn their names from consideration prior to a floor vote.

This list includes four individuals whom then-President Trump nominated during his first term:

• Andrew Puzder, Secretary of Labor: Then-President-elect Donald Trump nominated Andrew Puzder in December 2016, but allegations of spousal abuse, wage theft, and sexual harassment quickly surfaced. After Senate leaders told the president-elect Puzder would likely be rejected by the Senate, Puzder withdrew himself from consideration. That announcement did not happen until February 2017, however.
• Ronny Jackson, Secretary of Veterans Affairs (VA): Then-President Trump chose Jackson to be his second VA secretary on March 28, 2018. Senators were worried about Jackson’s lack of management experience. Also, current and former employees in the White House Medical Unit accused Jackson of creating a hostile work environment and drinking on the job. Jackson, a Republican member of Congress from Texas, withdrew his nomination on April 26, 2018.
• Patrick Shanahan, Secretary of Defense: Then-President Trump nominated Shanahan on May 9, 2019, to be his second secretary of defense. After reports of domestic violence surfaced, the White House announced on June 18, 2019, that Shanahan would not be formally nominated.
• John Ratcliffe, Director of National Intelligence: Then-President Trump nominated Ratcliffe on July 28, 2019, despite warnings from Sen. Richard Burr, the Republican chair of the Senate Intelligence Committee, that Ratcliffe could not be confirmed. Five days later, Trump would not be nominating Ratcliffe after all. Ratcliffe has been nominated by President-elect Trump to serve as the director of the Central Intelligence Agency during his second term.

As of yesterday, President-elect Trump was standing behind even his most controversial nominees. According to Reuters, when asked on Tuesday if he was reconsidering Gaetz’s nomination, the future commander-in-chief simply said, “No.” With a relatively healthy GOP majority in the Senate, President-elect Trump won’t need any Democrats to support his nominees in order to have them confirmed. Still, he can afford to lose only three Republicans on any one individual’s confirmation, so expect lots of lobbying in the weeks ahead from the president-elect and his allies.