Tracking Nominations: A Snapshot Eight Months into the Trump Presidency
Progress on Nominations
On its last day in session before the August recess, the Senate confirmed 65 nominees for positions within the federal government in a nominations package approved by a voice vote. Senate Democrats only allowed the move after the GOP effort to repeal and replace the Affordable Care Act (ACA) had stalled and bipartisan hearings on health care had been scheduled. Previously, Democrats adhered to a strategy of consistently objecting to unanimous consent on moving nominees in order to trigger the Senate rule requiring 30 hours of post-cloture debate on each nominee.
Despite action on this nominations package, a number of key positions across the federal government remain vacant, with President Trump continuing to fall further behind his predecessors in filling out his administration. By means of comparison, Presidents Barack Obama, George W. Bush, and Bill Clinton each had nearly twice as many political appointees confirmed at this point in their presidencies and, in some cases, had already seen movement on multiple nominations packages. President Trump has also seen it take nearly 19 days longer for his nominees to be confirmed than the average time for confirmations under his three most recent predecessors.
As a snapshot of the current situation, of the 599 key executive branch positions requiring Senate confirmation, only 121 nominees have been confirmed to fill these positions. Fifteen individuals are awaiting confirmation and 158 individuals have been named as nominees, but their nominations have yet to be sent to the Senate. Three hundred six of these key positions have no nominee. Additionally, President Trump has seen nine of his nominees fail in the Senate.
Beyond the procedural delay tactics in the Senate, delays have been due, in part, to the slowness of the White House to put forward nominees for consideration. This could be because the Trump Administration is having a hard time finding people to serve and attracting potential nominees who are willing to go through the lengthy process of completing paperwork and addressing ethics questions and potential conflicts of interest. However, it seems the White House is now picking up the pace on naming nominees.
Possible Near-Term Action on Confirmations
In the near-term, it is possible we could see some holdover or forthcoming nominees continue to receive 30 hours of debate on the Senate floor. If so, we see a handful of nominations where Senate Majority Leader Mitch McConnell (R-KY) may need to burn significant floor time to get priority nominees confirmed. In particular, we could see additional floor time later this month dedicated to consideration of the following nominees:
President Trump’s Nominee for Secretary of Homeland Security: The Department of Homeland Security (DHS) is the only one of the 15 primary cabinet departments without a secretary, due to General John Kelly’s departure to serve as President Trump’s White House Chief of Staff. While Deputy Secretary Elaine Duke is currently serving as acting secretary, it is widely speculated that House Homeland Security Committee Chairman Michael McCaul (R-TX) is the frontrunner to fill the role permanently. Once a nomination is sent to Capitol Hill, the Senate is expected to act swiftly to fill this key national security position. Representative McCaul has earned respect on Capitol Hill and if he is ultimately the nominee, he could be confirmed quickly.
Noel Francisco to serve as Solicitor General (SG): Named principal deputy SG in the early days of the Trump Administration, Francisco was nominated for SG in March. Since then, he has served as a senior adviser to Associate Attorney General (AG) Rachel Branch because the Federal Vacancies Reform Act does not permit any nominee to fill a position in an acting capacity while awaiting confirmation for that same job. While Francisco’s nomination was advanced by the Judiciary Committee in June, the tight 11-9 committee vote kept this nomination from being included as part of the August package. The full Senate is likely to confirm Francisco this week so that he will be SG when the Supreme Court begins its October term. A vote could take place Tuesday, if not sooner.
Makan Delrahim for Assistant Attorney General for the Anti-Trust Division at the Department of Justice (DOJ): While the Judiciary Committee approved Delrahim’s nomination in June, Senator Elizabeth Warren (D-MA) has put a hold on the nominee, expressing her view that he will prioritize “giant corporations ahead of the American people.” Delrahim met privately with Senator Warren recently to try to placate her concerns and encourage her to remove the hold on his nomination. Because it remains unclear if Delrahim has satisfied Senator Warren’s and other Democratic concerns, our guess is that Senate Republicans may use 30 hours of floor time on this nomination if they have to, perhaps confirming Delrahim later this month.
Federal Communications Commission (FCC) Chairman Ajit Pai’s Re-Confirmation: While the Senate approved single terms for Republican FCC Commissioner Brendan Carr and Democratic FCC Commissioner Jessica Rosenworcel before the recess, Pai’s re-confirmation is unlikely to move as part of any nominations package. If he is not re-confirmed, Pai would have to leave the FCC at the end of the year. While some have speculated that Pai’s re-confirmation could be paired with the nominee to replace Democratic FCC Commissioner Mignon Clyburn, who is rumored to soon announce her retirement, our instinct is that the Democratic nominee would be tied to Carr’s confirmation to a second term. Further, given the ongoing debate surrounding the FCC’s efforts to roll back Obama-era net neutrality rules, Pai’s re-confirmation will require a roll call vote in the Senate. Commerce Committee Chairman John Thune (R-SD) has said Republicans would like to re-confirm Pai before the Columbus Day recess. However, Senator Thune has also accepted that Democrats will determine “how much of the clock they want to run.”
David Redl to serve as National Telecommunications and Information Administrator (NTIA) Administrator: Previously Chief Counsel for Majority Staff on the House Energy and Commerce Committee, Redl’s nomination remains stalled in the Senate. While Redl’s nomination initially appeared on the agenda for an August 2nd Commerce Committee markup, it was ultimately pulled due to objections from Senator Ted Cruz (R-TX) over exchanges he had with the nominee on internet governance, and more specifically, the Obama Administration transitioning control over Internet Corporation for Assigned Names and Numbers (ICANN) last year. Chairman Thune has indicated a desire to include Redl’s nomination on the agenda for the Commerce Committee’s next business meeting, which could be held the last week of September or the first week of October.
Ron Batory to serve as Federal Railroad Administrator: Batory was nominated in July and the Senate Commerce Committee favorably reported out his nomination August 2nd. At the request of Majority Leader Chuck Schumer (D-NY) and Senators Kirsten Gillibrand (D-NY), Cory Booker (D-NJ), and Bob Menendez (D-NJ), he was not included in the nominations package that moved the same day, as they were concerned the president was uninterested in moving ahead with the Gateway project. They did not file any formal procedural protests against him, and following a meeting between President Trump, members of his administration, and a bipartisan group of members of Congress, during which some of their fears were allayed, participants in the meeting are more optimistic the president will commit federal funding to the project, which would bring new rail tunnels under the Hudson River between New York and New Jersey. As a result, Batory’s nomination is in a better position to be included in a larger package this fall.
General Observations on the Nominations Process
There are some general observations that may further guide activity on nominations. First, past precedent shows that federal judgeships tend to be a priority, as members of the ruling party are eager to fill lifelong appointments. Therefore, we should anticipate the Judiciary Committee to continue to be active in moving federal judge nominees.
Next, beyond the Judiciary Committee, many other committees are increasingly scheduling confirmation hearings and markups on nominations. For example, the Agriculture, Nutrition, and Forestry Committee and Health, Education, Labor, and Pensions (HELP) Committee will hold nomination hearings this week. Environment and Public Works (EPW) Committee Chairman John Barrasso (R-WY) has also touted activity in his committee this week on 4-5 nominees.
Third, history dictates that we should expect another nominations package at some point this year. While the timing is unclear, we would expect to see the pairing of Democratic and Republican nominees – for example the nominations of Richard Glick and Kevin McIntyre to serve as Members of the Federal Energy Regulatory Commission (FERC) – in such a package.
Finally, while the August nominations package was relatively heavy on confirmations to State Department positions and ambassadorial posts, we should soon start to see even greater activity in this space. In total, there are 188 ambassadorial appointments to foreign countries and international organizations, although five of these are moot because the U.S. currently does not exchange ambassadors with Belarus, Bolivia, Eritrea, Sudan, and Syria.
For the 183 ambassadorial positions the administration is expected to fill, 44 are currently vacant with no nominee. In 30 cases, there is a nominee who has yet to be confirmed, meaning a Chargé d’Affaires or Deputy Chief of Mission is currently leading these embassies. In many U.S. embassies where there are permanent ambassadors serving, these individuals are most often holdover career appointments from the Obama Administration. Since the start of the Trump Administration, only 19 new ambassadors have been confirmed. Many of these were political appointments.