One of the Senate’s most important responsibilities is to provide “advice and consent” for the president’s nominations. America’s Founders saw this as a “silent operation,” with the possibility of rejection an “excellent check” that would discourage “the appointment of unfit characters.”
Instead, Democrats have made it a very loud way to fight President Donald Trump, opposing him by blindly opposing his nominees. Although knowing this would be the Democrats’ M.O., the Republican Senate—so far at least—has a surprisingly weak record getting Trump’s executive branch nominees confirmed.
Executive branch positions that require Senate confirmation are listed in what is commonly called the “Plum Book” because, well, that’s the color of its cover. The Senate Committee on Homeland Security and Government Affairs and the House Committee on Government Reform take turns publishing this list after each presidential election. The 2024 Plum Book listed 936 positions that require Senate confirmation, 20% lower than the average for the previous eight editions.
The number of executive-branch positions that should require Senate confirmation has been debated for decades. A 1989 report by the National Commission on the Public Service recommended curtailing the growth in the number of presidential appointees. The Center for Presidential Transition made the same suggestion 35 years later.
Does the Senate, for example, really need to confirm the chairman of the Appalachian Regional Commission, the members of either the Barry Goldwater Scholarship and Excellence in Education Foundation, or the Civil Rights Cold Case Records Review Board, or the board members of the Federal Agricultural Mortgage Corporation? How about the Court Services and Offender Supervision Agency for the District of Columbia, Harry S. Truman Scholarship Foundation, or U.S. Advisory Commission on Public Diplomacy? That debate will no doubt continue.
New presidents, especially when replacing an incumbent of the other party, prioritize filling the most important positions in departments and agencies. The appointment process has three steps: presidential nomination, Senate committee consideration, and final Senate approval. The process operated as designed for most of American history; a total of 717 votes were cast against the thousands of executive branch nominees confirmed between 1789 and 2016. The Senate has defeated only eight executive branch nominations in the last century—and none since 1989.
That was then, this is Trump.
Democrats radically changed confirmation process norms when Trump was first elected. Though lacking votes to actually defeat any nominations, Democrats sought to reduce confirmations by making each one more time-consuming.
They refused, for example, to allow confirmation by unanimous consent or voice vote, an efficient step that does not require the presence of all senators and takes about 30 seconds. Instead, they demanded recorded, or roll call, votes that do require that all senators be present and take an average of 45 minutes or more. Democrats forced roll call votes on an average of 48 executive branch nominees per year during the first term, more than twice the average under President Barack Obama, and 12 times the average since the turn of the 20th century.
Another tactic was to force the Senate to take a separate vote on invoking cloture, or ending debate, on a nomination before deciding on final confirmation. Requiring a supermajority for ending debate has been an important part of the Senate’s legislative process for more than two centuries, but was never intended to include confirmations.
That has been possible, though unintentional, only since 1949, when the Senate broadened the cloture rule’s coverage from pending “measures” to pending “matters.” This step was to capture legislative motions as well as bills, resolutions, and amendments. No one said a word in 1949 that nominations were now also fair game. Senators, in fact, did not take a cloture vote on any nomination for another two decades. They took a cloture vote on just 20 nominees in the three decades after that, confirming 17 of them.
Democrats began using cloture to prevent confirmation of majority-supported judicial nominees during President George W. Bush’s first term. In the majority 10 years later, they voted to interpret the cloture rule’s “three-fifths” threshold to mean only a simple majority so that Republicans could not do what Democrats had started. Reinterpreting, but not amending, the cloture rule, however, left the cloture process intact.
Now, forcing the Senate to take a separate cloture vote cannot prevent confirmation, since, like final confirmation, it only takes a majority vote to cut off debate, but it can add days to the timetable for approving each nomination. During Trump’s first term, Democrats forced 190 cloture votes on executive-branch nominations, nearly twice as many as in the previous seven decades combined.
It’s worse now. In just the first six months of Trump’s second term, Democrats have forced cloture votes on 90% of his executive-branch nominations, nearly twice what Republicans did in 2021, and just 23% in 2017. Among them this year is the first cloture vote ever taken on a nominee to three dozen different positions.
Routine partisan opposition also became the norm. The roll-call votes on nominees between 1901 and 2016 showed an average of 14 negative votes. That doubled during Trump’s first term, and is even worse now. Every executive-branch nominee confirmed so far this year had a roll-call vote and received an average of 39 negative votes—an all-time record.
All of that shows that this is not your father’s (or even your older brother’s) confirmation process. That said, everyone knew that this would be the Democrats’ M.O. They pioneered the strategy, after all. Especially with a larger majority than expected, therefore, Republicans should have been prepared. The entire appointment process is under Republican control, and a robust pace of nominations, committee approvals, and Senate votes can get the administration up and running.
Trump did his part. By Aug. 3, when the Senate left town for a monthlong recess, Trump had sent 467 executive branch nominations to the Senate, compared with President Joe Biden’s 373 and Trump’s first-term total of 313 at the same point. Similarly, Senate committees also did a lot of heavy lifting, steadily increasing their approval rate to more than 60% by Aug. 3, far higher than in either 2021 or 2017.
That’s where things got bogged down. The percentage of available nominations—those cleared by committees and sent to the full Senate—confirmed dropped steadily and stood at 48% when the Senate recessed on August 3. This is far behind what either Democrats confirmed for Biden at the same point in 2021 or Republicans’ confirmation performance in 2016.
The picture would have been even worse were it not for a last-minute confirmation surge; nearly one-third of all nominations confirmed this year were approved in the three weeks before the August recess. Unfortunately, that was too little, too late.
Republicans have responded by focusing on the higher level of confirmation opposition, but that misses the point. Final results, whether unanimous or divided, require actually taking votes. The majority controls the agenda, even if implementing it requires some additional steps.
Yes, Democrats, have radically changed the appointment process, distorted the Senate’s role, and placed it on a divisive, partisan path. Yes, Democrats are fighting Trump by mindlessly opposing his nominees and drawing out the process as long as possible. None of that, however, is a surprise. Republicans have a lot of work to do when they return to work.
Originally published by National Review
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