• Allon Advocacy

Assembling a Cabinet

The Cabinet Room in the White House. With few exceptions, a seat at this table requires Senate confirmation.

One week after his inauguration as the 46th President of the United States, the Senate has confirmed four of Joe Biden’s cabinet picks. The United States has its first female Treasury secretary (Janet Yellen), its first Black secretary of Defense (four star U.S. Army General Lloyd Austin), and its first female Director of National Intelligence (Avril Haines, who was confirmed on inauguration day). Tony Blinken rounds out the foursome as Secretary of State.

There are confirmation hearings for other nominees, including President Biden’s choices to lead the departments of Justice, Commerce and Homeland Security, scheduled throughout the next week few weeks.

So how are President Biden’s nominees moving through the confirmation process as compared to previous administrations? Let’s take a look at the history of the approval – and rejection – of members of the president’s cabinet.

First, an important reminder from The History Channel: the U.S. Constitution actually “makes no mention of anything like a Cabinet.” The founding document says the president has the power to appoint executive department heads with the Senate’s approval, but that’s it.

The cabinet is therefore a product of tradition rather than law.

It was President George Washington who solidified the idea of a council of advisers who could help the president consider “interesting questions of national importance.” A few months after his inauguration, President Washington sent his first nomination to the Senate: Alexander Hamilton to lead the U.S. Department of the Treasury. (Little did Washington know that in so doing he would lay the groundwork for a hit Broadway musical more than two centuries later.) According to The History Channel, the Senate unanimously approved the choice “within minutes” of receiving it. Three more nominations, Thomas Jefferson to be Secretary of State, Henry Knox to be Secretary of War and Edmund Randolph to be attorney general, quickly followed and were quickly confirmed.

This legacy of speed and the Senate’s deference in allowing the President to choose his council of advisers largely continues today. While there have been some bumps along the road to nomination, the individuals who presidents have chosen to serve in their cabinet generally receive quick consideration by, and consent from, the Senate.

According to data from the nonpartisan Center for Presidential Transition (CPT), this trend seems to have hit a bit of a speedbump for the Biden administration. Biden nominees have been somewhat slower to be scheduled for nomination hearings in the Senate. A CPT examination of the Bill Clinton, George W. Bush, Barack Obama and Donald Trump presidencies revealed, “On average, 95 percent of” cabinet nominees received “confirmation hearings before the inauguration.”(Emphasis ours.)

Additionally, CPT found that, under Presidents Clinton, Bush and Obama, cabinet secretary nominations announced before inauguration day were confirmed by the Senate in an average of just 2.4 days. For President Clinton, the average actually was less than a day and for President George W. Bush it was less than two days. President Obama’s average was higher because it took 13 days to get Attorney General Eric Holder approved and 35 days for the Senate to vote on his nominee to head the U.S. Department of Labor, Hilda Solis. “Otherwise, Obama’s nominees were confirmed on average within 1.1 days,” according to CPT.

The delay in scheduling hearings for Biden nominees probably has less to do with the rocky transition between administrations – or even the impending impeachment trial of former President Donald Trump – than the fact that it was not clear which party would hold power in the Senate until after the Georgia run-off elections in early January.

As a result, President Biden’s average time from nomination to confirmation likely will be closer to the Trump record than the Clinton, Bush or Obama experiences.

The average Trump nominee took 24 days to get through the Senate. Why?

According to CPT, it was because of chaos in Trump’s own transition team and paperwork delays due to “the fact that a number of nominees had particularly complicated financial portfolios.” (Former Treasury Secretary Mnuchin, for example.)

Once President Trump’s nominees came before the Senate, they generally were approved by generous margins. That also is true of President Trump’s predecessors since controversial nominations are usually rescinded before a Senate vote ever is scheduled, lest a new president be embarrassed by a failed confirmation vote in the early days of his administration.

But, because of Senate deference to presidents to pick their cabinets, even this is a relatively rare occurrence. As the campaigns and elections data website FiveThirtyEight wrote at the outset of the Trump presidency, “From 1977 to 2013, the last six incoming presidents — Jimmy Carter through Barack Obama — made 109 appointments to Cabinet-level positions. Just six failed: Five nominees withdrew, and one was voted down by the Senate.”

Of the five nominees who withdrew their names from consideration, two did so after it was revealed they failed to pay taxes on the labor of their household employees. And three were nominations made by President Obama. President Obama’s first nominee to head the U.S. Department of Health and Human Services, former Sen. Tom Daschle (D-S. Dak.), dropped out after it was revealed he failed to pay taxes on unreported income. Additionally, “Not one, but two, of Obama’s nominees for commerce secretary withdrew: first, New Mexico Gov. Bill Richardson, whose administration was under federal investigation for pay-to-play allegations; second, Republican Sen. Judd Gregg, who cited ‘irresolvable conflicts’ with the Democratic president.”

But withdrawing from Senate consideration rather than face an embarrassing confirmation vote is not a new phenomenon. The first nominee in U.S. history to be withdrawn from consideration was Lucius Stockton, whom President John Adams nominated to be secretary of war right before Thomas Jefferson was to succeed him as the third president of the United States. Adams eventually relented and withdrew Stockton’s nomination. Another tumultuous presidential transition that resulted in the peaceful transition of power.

That fate probably was less embarrassing than that of the only cabinet nominee who has been rejected by the U.S. Senate in the last 40 years: John Tower. Tower was the late President George H.W. Bush choice to be defense secretary. His nomination was rejected by the Senate, 47-53, in the wake of evidence that he had sexually harassed women. His failure to receive confirmation was all the more embarrassing because Tower had himself served in the Senate for nearly 25 years prior to his nomination.

According to FiveThirtyEight, “only nine Cabinet appointees in all of U.S. history — by new presidents plus ones attempting to fill vacancies in the middle of their terms — have ever been voted down by the Senate.”

Examining the cumulative “no” votes on presidents’ cabinet picks – that is the total number of Senate votes against all of a president’s nominees – it is easy to see how non-controversial they usually are and how polarized our politics have become in recent history. According to Politifact, President George W. Bush’s nominees had a cumulative 157 “no” votes in the Senate. That number is followed by President Ronald Reagan’s nominees, who had 124 “no” votes; President Richard Nixon’s who had 113; and President Franklin Roosevelt’s who had 83.

President Bill Clinton’s nominees were among the most popular: over two terms in office, his nominees garnered only 18 “no” votes.

Recently, nominees have become more controversial. President Obama’s nominees collectively received 477 “no” votes over eight years, averaging about 12 per nominee, while President Trump’s nominees racked up nearly 1,000 votes in opposition to their nominations.

Overall, former President Trump’s nominees’ path to confirmation were relatively successful. All but one of his initial cabinet nominees were confirmed. Anthony Puzder withdrew his nomination for secretary of the U.S. Department of Labor after several scandals were revealed, including allegations that he physically abused his wife. At the moment, it appears that President Biden’s cabinet nominees are, generally speaking, on a glide path towards confirmation.

In general, what is the most controversial cabinet spot in terms of Senate confirmation votes?

According to Vox, it is the position of Attorney General (AG) – the nation’s top lawyer, who oversees federal law enforcement agencies and who represents the United States in court cases and oversees the Department of Justice. While, on average, secretaries of the departments of Agriculture and Veterans Affairs have earned an average of 97 out of 100 Senate votes since the Carter-era, AGs have earned an average of only 53.

Former President George W. Bush’s first attorney general, John Ashcroft, who had been a member of the Senate, was held up for nearly two weeks because Democrats objected to his record on civil rights. Vox notes, “Edwin Meese III was delayed 13 months and faced fierce opposition from Democrats because of ethical concerns. President Obama’s two nominees, Loretta Lynch and Eric Holder, faced opposition for political reasons.”

Merrick Garland, the former Supreme Court nominee who President Biden has chosen to lead the U.S. Department of Justice, had his Senate hearing this week, and he looks poised to potentially receive a strong confirmation vote. His nomination could be approved within the next week.

After cabinet nominations are complete, the U.S. Senate will turn to the nominations of the nearly 1,300 other high-ranking executive branch staff members. In addition to that, President Biden will need to fill another 7,500 or so positions where the occupants serve at his pleasure (meaning they will leave office when he does) and who do not require Senate confirmation.

Like top-level staff, most of these appointments and confirmations also will not generate a lot of controversy. At least until they get to work and the partisan fights about the policies they are generating start.

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