U.S. Senate

Senator Warren Isn't Weak for Backing Trump's Nominees

Senate Democrats have bigger priorities than symbolic votes during confirmation season.

Minority rules.

Photographer: Andrew Harrer/Bloomberg

Liberal activists are making a big mistake in turning against even very liberal Democratic senators, calling them weak or #VichyDemocrats because they won't oppose every Trump cabinet nominee as a matter of principle.

The reality is quite simple: The 48 Democratic senators cannot defeat Trump's cabinet picks. It takes a majority to do that, and so far at least Republicans appear ready to support whoever Trump picks. In all cases in which they do, Democrats aren't choosing between confirming and not confirming. 

If the U.S. Senate (and the Congress overall) was what scholars call an "arena" legislature, then absolute opposition would be an easy choice. The main function of such legislative bodies is to debate the issues of the day, so that both the government's point-of-view and the out-party's (or parties') reasons for opposing the government are articulated to the nation. In such a legislature, the job of the opposition is to oppose. And even in the U.S. Congress, of course, the opposition does plenty of that.

It is fair to say that the Senate performs some "arena" functions, and Democrats should keep in mind the message they are sending. Even if those "no" votes are nothing more than a symbolic gesture, it doesn't mean they are meaningless. Symbolic action can be important. But out-party votes on cabinet confirmations aren't exactly high-profile opportunities to register dissent -- especially considering that a vast majority of executive-branch nominees get approved. Nor will they be remembered. 1  

But even in this age of strong partisan polarization, the U.S. Senate remains a "transformative" legislature. It doesn't just approve laws the government proposes; it either modifies the president's proposals or, quite often, writes laws itself. And it has important and useful ways in addition to legislation of affecting how executive-branch departments and agencies function. 

What that means is that senators should not only look upon confirmation of executive-branch nominations as an opportunity to send messages to voters-at-large that they are opposed to the administration. They should keep in mind how they can use their votes as leverage over the officials they are confirming, and how reflexive opposition could spark a backlash from the majority.

The former seems to be the case for liberals such as Elizabeth Warren and Sherrod Brown, who are voting for secretary of Housing and Urban Development nominee Ben Carson. Indeed, Warren has explained that "in his written responses to me, he made good, detailed promises, on everything from protecting anti-homelessness programs to enforcing fair housing laws." If Democrats were simply knee-jerk opponents of all of Trump's nominees, Carson would have had no incentive to give Democrats any commitments at all. Of course (as Warren acknowledges) such promises aren't fully binding. But even if Carson only keeps some of his commitments, Democrats will have gained far more than an automatic symbolic "no" vote.

There's also the question of internal Senate politics. Democrats have relatively little leverage where simple majorities are sufficient for Republicans to act, but supermajorities are still needed to overcome filibusters on most legislation (and Supreme Court confirmations). So far, Republicans have not moved to end the filibuster, and individual senators have strong reasons to support supermajority requirements, even if the majority party wants simple-majority rule. That's why both parties were willing to keep the filibuster in place even when nominations they really cared for were killed by the procedure. As long as majority party senators believe compromise is a possibility, they'll probably keep the filibuster in place, even if it limits their ability to pass some bills. 

Democrats are actually delaying Trump's cabinet nominees more than Republicans did for Barack Obama's original cabinet, although it's only a matter of days in most cases so far. Democrats will produce far more "no" votes than Republicans in 2009, when they registered a grand total of 105 of them against 14 cabinet secretaries. 2  So by recent Senate standards, Democrats are more than fulfilling "arena" responsibilities. To be sure, one can argue normal standards should not hold against this president and this set of executive-branch nominees. And it's also true that after generally going along with Obama's original cabinet, Republicans embarked on a path of unprecedented obstruction of his subsequent selections. Nevertheless, it was never the case that Republicans simply opposed all Obama picks to the maximum extent possible.

Whether or not they are making the correct calls in all cases, liberal Democrats in the Senate are acting as they are for perfectly sound reasons. To slam them as cowardly or subservient is just missing the point of what their jobs are about. 

And those criticisms can backfire easily, and not just because they would divert Democrats from their real targets. Seth Masket at Mischiefs of Faction made the point that liberals should aspire to "be the majority you wish to see." He was correctly arguing that if liberals campaign visibly in 2018, they will get the credit for Democratic victories if they happen. But there is a risk as well. If liberals simply emulate Tea Party conservatives, they'll wind up with a Democratic Party which mimics all the dysfunction of the current Republican Party -- the dysfunction which allowed Donald Trump to win their presidential nomination and then steer the party away from many conservative priorities. 

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

  1. I've seen the even more implausible argument that only if Democrats oppose each nominee will Trump and the Republicans "own" those cabinet secretaries. Hogwash. No one during the Iraq War (for example) checked to see whether Democrats had voted to confirm Secretary of Defense Donald Rumsfeld; George W. Bush was going to get the credit or blame for that conflict regardless of whether Democrats had supported him (for the record: They allowed him to be confirmed by voice vote). 

  2. In addition, two of Obama's original choices withdrew their names after (relatively mild) scandals were revealed. Obama's cabinet was confirmed under the old Senate rules in which 60 votes were needed to defeat a filibuster, and at the time there were only 58 Democrats, so unified Republicans could have prevented any of the nominees from being confirmed, at least until Democrats were forced -- as they were in October 2013 -- to eliminate the filibuster for executive-branch nominations. 

To contact the author of this story:
Jonathan Bernstein at jbernstein62@bloomberg.net

To contact the editor responsible for this story:
Mike Nizza at mnizza3@bloomberg.net

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