The Senate Confirmation Process in the Trump Era

January 10, 2017, ABC News

In times when nothing related to elections works the way one anticipates, it shouldn’t be surprising that confirming the incoming president’s appointees is setting its own precedents. The nation’s sharp ideological divide is reflected in the U.S. Senate’s progress and process in confirming Cabinet secretaries and other agency heads. In an unprecedented move, the Senate Democratic minority is signaling that they will oppose most or all of Trump’s nominees, making it likely that most will be approved by a party-line 52-48 margin.

Traditionally, the U.S. Senate’s Constitutional “advise and consent” power over presidential appointees has been exercised with a presumption that people nominated for high office by the president should be confirmed unless there is an exceptional reason why they should not be. To be sure, exceptions have occurred throughout American history, but even those exceptions have typically been disposed of by a nominee’s decision—with or without prompting—to withdraw their name from Senate consideration rather than have the Senate hold a close vote or, worse, reject a nominee.

Nominees, once announced, traditionally head to Capitol Hill to hold informal meetings with the members of the Senate committee that will hold hearings on their confirmation. Courtesy photos are taken, specific concerns and pet projects of each committee member are discussed, and the nominee is made aware of any particular policy issue or initiative that he or she may be questioned about during the hearing.

These meetings are part of the preparation process for both nominees and committee members, regardless of party and any prior friendship or professional contact. Meanwhile, nominees fill out questionnaires and financial disclosure forms, and background checks are performed. Ideally, the president’s transition team will have already done much of this work, meaning that the nominee will have most of the materials ready for the Senate. The confirmation hearings themselves typically give the nominee the opportunity to assure committee members that the nominee, once confirmed, will work with the Senate as a whole and each committee member in particular. These promises are not legally binding, but it is understood by all that there is a certain amount of horse-trading and pledge-making being done using diplomatic (political) language.

Democrats would like to have several of the confirmation hearings delayed. There is concern that not all of Trump’s nominees have provided all the financial records and other documentation of potential conflicts of interest necessary for evaluation and investigation. One reason for this, according to Republican spokespeople, is that many of the nominees are wealthy beyond the level of wealth typically associated with Cabinet service. These multimillionaires and billionaires have countless investments and other relationships, all of which take time to document. Some Democrats insist that no nominee’s hearing should be held before complete disclosure information has been received and verified.

Some nominees, like Oklahoma Attorney General Scott Pruitt, are being opposed because they have expressed opposition to department policy (at the Environmental Protection Agency) or even, in the case of former Gov. Rick Perry (R-TX), advocated for the closing of the agency he has been nominated to lead (Department of Energy).

Nominees are being opposed for both principled and political reasons. Commentators have noted that Democratic-aligned and other groups fearing change in federal policy are using the confirmation process to generate both protest and contributions. Senate Democrats can oppose Trump’s nominees, endearing them to their supporters without affecting the nominees’ confirmation by the full Senate.

The mechanics of voting are simple. Since Republicans constitute a majority of all Senate committees, nominees are very likely to be recommended for confirmation once hearings are complete. Since it takes only 41 votes to defeat a filibuster and invoke cloture (force a Senate vote after a defined period of debate), it’s highly unlikely that nominations can be stopped on the Senate floor.

The possibility exists that three GOP senators may join with all 48 Democrats to oppose a nomination and refuse to confirm a nominee. This is extraordinarily unlikely because, in a partisan environment, both Republican and Democratic senators will be encouraged by their leadership to be loyal to their party. Failure to do so can carry serious penalties for a senator—and promotion of their state’s interests in the Senate. Further, threats to hold a senator accountable to the electorate for their vote in 2018 is more problematic for Democrats than for Republicans, since 23 Democratic and two Democratic-aligned Independent Senators are up for reelection and only eight GOP Senators are. Besides, 2016 was the year the GOP was supposed to be vulnerable and expected to lose its Senate majority, and it didn’t happen. Defections from party rigidity may happen, but on both sides of the political aisle.

As with much of the recent election-related drama, the confirmation process unfolding beginning this week in the U.S. Senate offers abundant opportunity but little likelihood of significant deviation from historical norms for both political parties, with the exception of more than usual close votes. President-elect Trump will get all or most of his nominees confirmed, and the partisan battles will continue.—Michael Wyland