WASHINGTON, January 12, 2017 — The last time a cabinet nominee was flatly rejected by the Senate was in 1989. Former senator John Tower was rejected as President George H.W. Bush’s secretary of defense. The Senate was controlled by Democrats, and Tower was deemed unsuitable for a history of alcohol abuse, womanizing, and possible conflicts of interest.
The last time that a cabinet nominee was rejected by a Senate controlled by the president’s own party was in 1925, when Charles Warren was rejected as President Calvin Coolidge’s attorney general.
Other nominees have been pressured to withdraw, as happened with Tom Daschle and Bill Richardson under President Obama, and Linda Chavez under President George W. Bush. But history makes clear that it is difficult to deny a new president his cabinet choices.
The Trump presidency promises to be nothing if not a presidency of broken precedents, and in other circumstances, Sen. Jeff Sessions might face a difficult road to confirmation. Opposition to him among Senate Democrats is serious, and opposition among the Democratic grass roots is strong.
But barring something extraordinary, Sessions will be confirmed as attorney general. And Trump’s other controversial picks, including those for the State Department and the Department of Education, will be confirmed as well.
They have more than history on their side. They have outgoing Senate Minority Leader Harry Reid.
Reid, it seems, never imagined that Democrats would lose control of the Senate, nor that having lost it, they would lose the White House. Had he been a man of greater imagination, Democrats would not find themselves facing the near certainty of Attorney General Jeff Sessions, Secretary of State Rex Tillerson, Secretary of Education Betsy DeVos, and whomever Trump chooses for the federal judiciary.
They would, at least, have a fighting chance to delay their confirmations. But for the first time ever, an incoming president has the power to choose his nominees without fear of a filibuster.
Three years ago, Reid, then the majority leader, triggered the “nuclear option.” In order to stop Republican “obstruction” of Obama’s cabinet-level nominees and his nominees to the federal bench, Reid and Senate Democrats changed Senate rules to end filibusters of those appointments. Only Supreme Court nominees could be filibustered.
That was in retrospect a bad move for the Democrats, made for the sake of expediency. At the time, Democrats responded that the nuclear option was the only way to overcome Republican obstructionism. It was, under that argument, the responsible thing to do.
Is taking away the minority’s power to block the majority and the president ever really the responsible thing to do? In a system designed to ensure that minority opinions are heard and minority concerns addressed, no.
Governance has two components: process and policy. Of the two, process is by far the more important. It binds policy makers to rules and procedures, ensuring that the ultimate policies are respected by all. Process is where negotiation and compromise are required, where the art of politics is practiced.
Democrats complained during much of the Obama Administration that Republicans were obstructionist. While they claimed to respect the importance of process, they argued that Republicans abused it, and America needed, demanded and deserved results, not endless process.
Hence the nuclear option, hence President Obama’s reliance on executive orders to accomplish much of his program, hence the political vulnerability of the Affordable Care Act.
And hence the good fortune of President-elect Trump.
Some conservatives argued that passing the ACA without any Republican support at all was a mistake, the nuclear option was a mistake, and reliance on executive orders rather than legislation to achieve major policy goals was a mistake, not because the policies were bad, but because Democrats were upending process, setting bad precedents, and shifting too much power to the executive branch.
Abuse process, and it comes back to bite you. Steamroll the opposition to pass a bill and unite them against it, and you reduce the political barriers they face to removing it when they’re in charge. Trigger the nuclear option when your party controls the White House, and the filibuster isn’t there to help you block a president from the other party, even if you think his choices are reckless. Provide the intellectual support for a president from your party to legislate by executive order, and you give a president from the other party the support to do the same.
And you give that next president the power to undo what you did with the stroke of a pen with the stroke of his own pen.
A surprisingly large part of Obama’s legacy can be undone with the stroke of a pen—everything from “dreamers” to deals with Iran—with the big exception of the ACA. And the ACA is vulnerable. Trump will almost certainly get his picks for the cabinet and for most of the judiciary. He has the power to act bigly, and Harry Reid and President Obama gave it to him.
Getting results “right now” was more important to Democrats than fighting the hard battles of building consensus, building popular support and passing laws with bipartisan support. They needed to act now, while the chance was there.
They took a gamble and hoped that a third Democratic White House victory would lock in their gains. They lost. Now let them run through the list of Trump cabinet and judicial picks that they can’t block and the Obama initiatives that are going to be erased and ask, was it really worth it?