The Senate's 1-Percent Rule on Cabinet Confirmations
There’s much wishful thinking about how the Democrats will draw blood, or perhaps even topple one of these nominees. But history strongly suggests that this is exceedingly unlikely. The Senate may have the power to block nominations, but it almost never opts to do so.
A little background. In Article 2, Section 2, Clause 2, the United States Constitution charges the president with the power to appoint public officials subject to the review of the Senate. While the Constitution does not discuss cabinet appointments per se, their vetting by the Senate became standard practice when Congress first met in 1789, even if they didn’t subject them to the scrutiny they typically endure today. In fact, the Senate approved Alexander Hamilton’s appointment as secretary of the Treasury -- one of only four cabinet posts back then -- just a few minutes after Washington sent it over for review.
Over the course of the nation’s history, presidents have submitted approximately 770 nominees for cabinet positions. And of those, who many has the Senate rejected? A whopping nine nominees, a rejection rate of approximately one percent.
But even that figure exaggerates the rejection rate: no less than four of the nine went down in flames during the administration of John Tyler, our tenth president. Tyler was arguably one of the least popular presidents in the nation’s history; he was certainly one of the most divisive. Elected vice president in 1840, he inherited the presidency after William Henry Harrison, a Whig and war hero, died after a mere thirty days in office.
Though nominated as a Whig, Tyler quickly revealed himself as a conservative Democrat, bringing the Whig reform program to a screeching halt. His entire cabinet – save for Secretary of State Daniel Webster -- resigned in protest; the Whigs formally excommunicated him from their party. Tyler, dubbed “His Accidency” by his detractors, limped along, filling vacancies with like-minded Democrats.
But turnover was high, and by 1843, things had deteriorated to the point where the Whig-controlled Senate rejected four of his cabinet nominees. In one particularly memorable day in American politics, Tyler stubbornly re-appointed one of the rejects -- Caleb Cushing for Secretary of the Treasury -- two more times. The Senate rejected him with ever-higher margins. The final vote against 29-2 against.
Put aside Tyler’s failed nominees, and there’s only five rejects. One was collateral damage during the disastrous presidency of Lincoln’s successor, Andrew Johnson, who was the first president to be impeached. Like those sent packing on Tyler’s watch, this was a symptom of a profound breakdown in relations between the executive and legislative branches: Johnson and Tyler both lost the support of the parties who had originally nominated them.
Three others went down to defeat when a party different from the president controlled the Senate. These include Roger Taney, Andrew Jackson’s nominee for Treasury secretary in 1834; Lewis Strauss, Dwight Eisenhower’s nominee for Commerce secretary in 1959; and John Tower, Republican George H. W. Bush’s nominee for secretary of Defense in 1989. Both Strauss and Tower had personality flaws that helped energize the opposition.
But if you’re looking for cases where the Senate broke ranks with a president from their own party – aside from the cases of Tyler and Johnson – there’s only example. In 1925, Calvin Coolidge’s choice to head the Justice Department narrowly went down in defeat because of his association with the hated “Sugar Trust,” a symbol of political corruption. But that’s one case out of 770.
Perhaps Jeff Sessions and the other nominees will face a similar fate. But the odds are against it, with one very important caveat: Should Trump begin warring with his own party, then all bets are off. If that happens, we may well see a return to the glory days of the Tyler administration.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
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