How Killing The Filibuster Changed The Way Trump Is Filling His Cabinet

John Bazemore

There's very little Democrats can do to kneecap President-elect Donald Trump's Cabinet picks as confirmation hearings kick into gear later this month—and Trump knows it.

His will be the first Cabinet sworn in since Democrats went nuclear in 2013 and did away with the filibuster, which used to require 60 votes for confirmation of most presidential nominees. That change may have fundamentally changed the way the Cabinet nomination process is working, and congressional experts say the loss of the filibuster even may have influenced Trump's selection of nominees.

"For a typical president, knowing that there is at least that risk of a filibuster ...would have at least something of a tempering effect on who you nominate," Eric Schickler, a professor of political science at the University of California, Berkeley, told TPM. "What we're seeing with Trump, he's obviously chosen to nominate some people who are pretty far out there and his ability to succeed with that is higher in a world without the filibuster."

Indeed, Trump has been emboldened to choose an unorthodox roster of Cabinet nominees, many of whom have little relevant government experience.

In the past, holding up Cabinet nominees with a filibuster had always been a rare occurrence. If nominees were blocked, it was usually because their nominations were pulled before senators could filibuster them from the floor. Now, with that leverage gone, Republican senators, Trump's transition team and the nominees themselves may be less inclined to accommodate requests from Democratic senators and undergo the kind of intense vetting that has become the hallmark of the confirmation process. Democrats already are bemoaning resistance from some of Trump's nominees to turn over tax returns and complete questionnaires.

Trump's roster of Cabinet nominees looks vastly different from that of his predecessors. He's picked billionaires and individuals without any government experience. In some instances, as in the case of Oklahoma Attorney General Scott Pruitt's nomination to head up the Environmental Protection Agency, Trump's Cabinet picks have spent years railing against the very agencies they would run.

"There is just no public record on a lot of them," said Kevin Kayes, a managing director at QGA Public Affairs and former staff director for the the Senate Commerce, Science and Transportation Committee under former Chair Ernest Hollings (D-SC). "They weren't really public officials in a public capacity."

There have been a few awkward moments and stumbles that, without the threat of a filibuster or any other concrete way for Democrats to block Trump's nominations, likely won't have any real effect on his Cabinet picks. In one notable instance, a spokesman for Dr. Ben Carson said that the retired neurosurgeon didn't think he was qualified to run a federal agency. Trump nominated Carson to run the Department of Housing and Urban Development a few weeks later, and Republicans applauded the announcement.

Then, instead of an accomplished statesman, Trump selected Rex Tillerson, the chairman and chief executive officer of ExxonMobil, to lead the State Department, despite Tillerson's close business ties to U.S. adversary Russia.

For Treasury Secretary, Trump nominated former OneWest Bank chairman Steve Mnuchin, who built a reputation for aggressively foreclosing on homes during the recession.

Trump's pick to lead the Justice Department is Sen. Jeff Sessions (R-AL), a former U.S. attorney who was denied a federal judgeship in the 1980s because of testimony to the then-Republican-controlled Senate Judiciary Committee that Sessions had a history of making racist remarks.

Democrats have been aggressively preparing opposition research on these nominees. Senators launched a website asking for individuals to share stories of how Mnuchin foreclosed on their homes. Sessions' past comments have been widely recirculated since his nomination, while a December Wall Street Journal report revealed Trump's pick for Health and Human Services secretary, Rep. Tom Price (R-GA), had traded $300,000 worth of health care stocks since 2012, at a time when he was deeply involved in legislating that sector. Democrats have said they plan to make confirmation hearings on Trump's nominees a referendum on Republican policies like privatizing Medicare and repealing regulations on banks.

How well Trump's transition team vetted its nominees in the first place is a major wild card in the confirmation process. Reports have indicated that Trump's team took a far more lax approach to vetting than President Barack Obama's team did in 2008, when the transition had compiled a list of names and began the vetting process months before the election. Trump's team reportedly has been far less scrupulous and has rushed through the process, raising the odds that some explosive moments could still arise in the course of confirmation hearings and embarrass the incoming administration.

But Sarah Binder, a congressional expert at the Brookings Institution, said that without the filibuster option, Republicans will be able to move rapidly and bulldoze right past any Democratic objections.

"The 51 vote cloture rule gives an inordinate advantage to Republican leadership and the committees to try to push these nominees through quickly and try to get them confirmed," Binder said.

There is some recognition among Democrats on the hill at this point that stopping Trump's Cabinet won't be possible, regardless of what may come out in confirmation hearings. Instead, Democrats may have to focus on getting nominees to be on record.

"I have no idea what the outcome will be, but I do think it is critically important if Democrats are not able to defeat them to at least create a record and force the nominees to agree to carrying out the missions of the agencies to which they are being appointed," Nan Aron, the president for the Alliance For Justice, told TPM. Although, she noted that she still thought Democrats should try to stop the nominees.

The only question now is whether Republican senators will be willing to speak out against the President-elect's nominees if something controversial or truly disqualifying arises in the hearings.

"If seemingly small ethics questions arise as they have in the past, how are they treated by Senate Republicans?" Binder asked. "Will the desire to put nominees in place override past practice?"

Given the fact that Republicans have quickly fallen in line behind Trump since he won the election, it's likely that the Senate GOP will have a strong desire to approve his Cabinet. With Democrats stripped of their ability to wield the filibuster, there is nothing standing in the way of confirmation.

Tierney Sneed contributed to this report.

ABOUT THE AUTHOR

Lauren Fox is a reporter at Talking Points Memo.
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