Sen. Alexander: Democrat Delays Could Cause Trump to Bypass Senate on 350 Key Nominees

Posted on May 24, 2017

“Delaying the inevitable approval of nominations by a president you don’t like may sound to your base like good politics, but it would be supremely bad governing.  Senate Democrats would diminish their influence and shoot themselves in both feet. They should want to have a say in the accountability that comes with the confirmation process.”—Lamar Alexander

 

WASHINGTON, D.C., May 24, 2017 – U.S. Sen. Lamar Alexander (R-Tenn.) today warned that if Senate Democrats continue delaying the confirmations of presidential nominees, they would give President Trump “an excuse to staff the government with about 350 key appointees who are unconfirmed and unaccountable to the United States Senate.”

“An administration mostly managed by acting presidential appointees who have not been confirmed by the Senate surely would be a first in American history,” Alexander said today in a speech on the Senate floor. “Delaying the inevitable approval of nominations of a President you oppose may sound to your political base like good politics, but it would be supremely bad governing. Senate Democrats would actually be diminishing their influence and shooting themselves in both feet. They would be turning over to a President they don’t like, an excuse to staff the government with about 350 key appointees who are unconfirmed and unaccountable to the United States Senate.”

Senate Democrats—who in 2013 changed the Senate rules to allow presidential nominees to be confirmed by a simple majority—used delaying tactics to stretch out confirmation of President Trump’s cabinet longer than any other president in recent history.

Alexander warned that if Democrats continue their delay tactics, then President Trump, who has been slow to make nominations to subcabinet positions, “would have every excuse to stop nominating and simply appoint acting officials to about 350 of the remaining key positions.”

Alexander asked: “What difference would it make to have an administration mostly unconfirmed by the Senate? It would mean that the Senate would be giving the executive more power at the expense of the legislative branch. This undermines the checks and balances created by our nation’s founders.”

Below are the senator’s prepared remarks:

Here is the scorecard on 557 key presidential nominations during the first 100 days of the Trump Administration, through April 29, according to the Partnership for Public Service in collaboration with the Washington Post:

On cabinet appointments, President Trump did his job, but Senate Democrats did not. Trump announced all of his cabinet nominations before he was inaugurated on January 20, but Democrats delayed confirmation of cabinet nominations more than those of any other recent president.

On subcabinet appointments, President Trump did not do his job. He was slower than any other recent President to send his nominations to the Senate.

So, here is what could happen: If Democrats continue their delaying tactics when President Trump does send subcabinet nominees to the Senate, the President would have every excuse to stop nominating and simply appoint acting officials to about 350 of the remaining key positions. An administration mostly managed by acting presidential appointees who have not been confirmed by the Senate surely would be a first in American history.

Delaying the inevitable approval of nominations of a President you oppose may sound to your political base like good politics, but it would be supremely bad governing. Senate Democrats would actually be diminishing their influence and shooting themselves in both feet. They would be turning over to a President they don’t like, an excuse to staff the government with about 350 key appointees who are unconfirmed and unaccountable to the United States Senate.

What difference would it make to have an administration mostly unconfirmed by the Senate?

It would mean that the Senate would be giving the executive more power at the expense of the legislative branch. This undermines the checks and balances created by our nation’s founders.

Democrats complain that Republicans delayed some of President Obama’s nominees and that is true. In fact, this has always been true. My own nomination for U.S. Education Secretary in 1991 was delayed two months by a Democrat senator who put a hold on my nomination for unexplained reasons. President Ford’s nomination of Warren Rudman to the Interstate Commerce Commission in 1976 was blocked by Democrat New Hampshire senator John Durkin.

The rest of that story is that Rudman eventually asked President Ford to withdraw the nomination, ran against Durkin and defeated him in the next election.

There is a better way to resolve differences between senators and the President. In December 2015, President Obama seemed content to allow John King to serve as his Acting Secretary of Education for the last year of his term. I told the President I thought it was inappropriate for a President to have an Acting Cabinet member for so long and that, while I disagreed with King on many points, I urged him to nominate King and, if he did, I promised that I would hold a prompt hearing and see that he was confirmed.

President Obama nominated John King on February 11, 2016 and he was confirmed on March 14, 2016. I disagreed with King often but the Secretary was confirmed by and accountable to the Senate as the Constitution envisions.

All of President Trump’s cabinet nominees are now confirmed, but this is how long it took compared with his three immediate predecessors: All of Trump’s nominations were announced before his inauguration, but the Senate confirmed only two on Day 1 because Senate Democrats would not agree to any more than that.  His third cabinet nominee was confirmed on January 31st

To compare, by January 31st in prior administrations, President Obama had 10 nominees confirmed, and George W. Bush and Bill Clinton each had 13 confirmed.

Keep in mind that it is impossible for Democrat senators by themselves to defeat a Trump nominee. Confirmation requires only a majority present and voting to confirm, that is, usually 51. There are 52 Republican senators. In addition, Vice-President Pence can vote in case of a tie. There is no 60-vote filibuster available to block nominees because Democrats, when they were in the majority in 2013, changed Senate rules to eliminate the filibuster on nominations.

So, by their obstruction Democrats are only delaying the inevitable, using various tactics to require the Senate to use nearly a week of floor time to approve even non-controversial nominees.

We do not know how Democrats will treat President Trump’s more than 350 remaining key nominees because President Trump has made so few of them. For example, I am chairman of the Health, Education, Labor and Pensions Committee. Aside from the cabinet secretaries, of the 557 key positions identified by the Washington Post, 35 of them within the cabinet agencies require recommendations to the full Senate by the HELP committee.  

Department of Health & Human Services—8

Department of Education—14

Department of Labor—13

At the end of the first 100 days, April 29, our Committee had received just one subcabinet nomination—that of Dr. Scott Gottlieb for FDA commissioner who was promptly confirmed on May 9th.

Compared with President Trump’s one subcabinet nomination sent to our committee in his first 100 days, President Obama made 13 subcabinet nominations in his first 100 days, President George W. Bush made 10 and President Clinton made 14 to our Committee.

(There actually are nearly 700 more presidential nominees requiring Senate confirmation that are not considered “key” by the Washington Post analysis.)

Unfortunately, there are ominous signs about how Democrats will treat non-cabinet nominees. Democrats required the Senate to take nearly a week of floor time to consider the nomination of Iowa governor Terry Branstad to serve as Ambassador to China. There was no excuse for this other than obstructionism. Branstad is the longest serving governor in American history. He has a well-documented relationship with the Chinese President.

He was approved by voice vote by the Senate Foreign Relations Committee and ultimately approved by the full Senate earlier this week, 82 to 13.

If Democrats treat other non-controversial ambassadors and subcabinet nominees the way they treated Governor Branstad—requiring nearly a week of Senate floor time to consider a nominee—then President Trump almost certainly will bypass the Senate and name hundreds of acting heads of subcabinet departments. Under the Constitution, he may do that whenever he chooses. There are flexible limits on the time one may serve as an acting position, but if that time expires, the President can simply appoint someone else.

Hopefully, President Trump will speed up his nomination of subcabinet members. And hopefully, Democrats will return to the common practice of routine floor approval of presidential nominations when the confirmation process has determined that the nominee deserves to be approved.

Our founders created a system of government based on checks and balances of three co-equal branches of government. There has been much complaining recently about the rise of the executive branch at the expense of the legislative branch.

Having an executive branch and embassies mostly staffed by acting personnel not confirmed by, or accountable to the United States Senate undermines the principle of three co-equal branches of government.

The President should want his team in place and should speed up recommending key nominees to the Senate. And senators, especially those in the minority, should want to have a say in the vetting and accountability that comes with the Senate confirmation process.