Controversies involving many of the persons nominated by President Trump to lead major executive agencies provide an important reminder of the Senate's robust constitutional role to provide "Advice and Consent" in connection with the appointment of Cabinet members and other executive officers. The Senate's role is dynamic even when, as now, most senators are members of the president's political party. Although the Senate's consideration of executive appointments generates at least some friction at the beginning of every new Administration, some of President Trump's nominees may further roil the already turbulent period of transition.
The Senate's scrutiny of such nominations has traditionally involved consideration of professional qualifications, temperament and character, conflicts of interest and ideology. The Senate has also considered whether a nominee is sufficiently sensitive toward the doctrine of separation of powers, and would respect the prerogatives of Congress even while serving as a member of the President's "team." All of these factors have become particularly prominent in the Senate's scrutiny of Trump's nominees.
In previous Administrations, qualifications rarely have been an issue since most nominees had stellar experience and credentials. This year, however, the Senate is taking a closer look at qualifications since a uniquely high proportion of Trump's appointees, like Trump himself, have no previous experience in government. Even the nominees to lead the State and Treasury Departments, Rex W. Tillerson and Steven Mnuchin respectively, have never held public office. The only nominees who have extensive experience in federal posts are Elaine Chao, who served eight years as Secretary of Labor during the George H.W. Bush Administration, and Jefferson B. Sessions, a US senator for the past twenty years. Although most of the nominees who lack any record of public service have had glittering careers in the private sector — Tillerson, for example, was CEO of Exxon Mobil — some senators question whether success in business translates into the ability to successfully direct the politically and socially sensitive operations of large federal agencies. Senator Benjamin L. Cardin of Maryland told Tillerson that "those who suggest that anyone who can run a successful business can, of course, run a government agency do a profound disservice to both."
Thus far, most of the nominees, including those who lack government experience, generally appear to have convinced senators and other observers that they have an ample comprehension of the issues that their departments would address and an ability to manage large bureaucracies. Tillerson, for example, demonstrated a sophisticated and nuanced understanding of international affairs that surprised some of his critics. Some nominees, however, may not have fared so well. The New York Times characterized the testimonies of Elisabeth "Betsy" DeVos (Education), E. Scott Pruitt (Environmental Protection Agency) and Thomas E. Price (Health and Human Services) as "a cavalcade of misstatements, lapses of judgment, conflicts of interest and from time to time spectacular displays of ignorance and insensitivity."
Conflict of interest issues are more prominent and complex in the present confirmation process because perhaps no bundle of nominees in history have had such extensive financial holdings or such far-flung business connections. Two Cabinet nominees, DeVos and Wilbur L. Ross, Jr. (Commerce), are multi-billionaires. (By comparison, the wealthiest member of Congress is worth an estimated $440 million and the median net worth of members is one million dollars). Tillerson's business contacts with Russia have attracted particular scrutiny, and senators also have expressed concern because Price is heavily invested in health care securities. The Senate's review and analysis of complex financial holdings have slowed the confirmation process, and the gargantuan wealth of so many nominees is likely to permit more conflicts of interest to pass unnoticed or unquestioned because the Senate may lack time and resources to delve deeply into details.
In addition to identifying potential financial conflicts, the Senate also tries to determine whether nominees have any personal conflicts that could hinder their ability to discharge their duties. The absence of such conflict is especially important in an Attorney General, who as the nation's chief law enforcement officer is expected to administer the law without prejudice. The Senate Judiciary Committee therefore devoted particular scrutiny to the nomination of Sessions, whose critics questioned his attitudes toward the rights of African Americans. Sessions' deft defense of his record on racial issues and assurances of his commitment to racial equality appear to have disarmed his detractors. Sessions also told senators that he would recuse himself from decisions regarding Hillary Clinton's emails or the Clinton Foundation because of critical statements about them that he has made.
Although conflict of interest issues has been a traditional staple of confirmation hearings, potential conflicts in the past almost always have involved the nominee herself. This year, senators are using the confirmation hearings to identify and try to remedy potential conflicts between government departments and the president, whose vast financial interests generate an unprecedented potential for conflicts of interest. Senator Sherrod Brown of Ohio succeeded in obtaining a pledge from Benjamin Carson (Department of Housing and Urban Development) to develop a system for identifying properties that were tied both to Trump and to the Department. Similarly, Mnuchin assured senators that the Treasury Department would help to ensure that Trump would conform to both the law and ethics in managing his extensive assets.
Another unprecedented aspect of this year's confirmation process is the extent to which nominees have espoused policy positions that may be at odds with those of the president. Although conflict between a nominee and the president traditionally would be a factor that weighed against confirmation insofar as it would augur conflicts that could impede a smooth and successful administration, some of Trump's positions are so unpopular even with many Republican senators that such deviations may work in favor of nominees.
Tillerson, for example, distanced himself from Trump's controversial remark during the campaign that the United States should defend its allies only if they paid their fair share of defense costs. Unlike Trump, Tillerson expressed support for sanctions against Russia for its incursion into Ukraine. He also appeared more receptive the possibility of climate change than has Trump, stating that "the risk of climate change does exist and the consequences of it could be serious enough that actions should be taken." Tillerson aligned himself, however, with some of Trump's hardline positions toward China and Iran.
Similarly, Pruitt expressed disagreement with Trump's characterization of climate change as a "hoax," and Sessions expressed opposition to Trump's proposals for creating a registry of American Muslims and banning Muslim immigrants, while supporting Trump's advocacy of stricter scrutiny of immigrants. Mnuchin's apparent advocacy of a strong dollar seemed at odds with Trump's recent suggestion that the dollar may be overvalued. And James Mattis distanced himself from Trump's suggestions that the United States reject the nuclear accord with Iran.
Confirmation hearings also provide senators with an opportunity to measure the character of nominees. This, too, may be more important during this year's hearings because so many of the nominees have no record of experience in government and are strangers to the senators. Demonstration of fair-mindedness, caution and a willingness to learn may go far toward assuaging apprehensions about ideology or lack of qualifications. Tillerson, who was trained as an engineer, repeatedly expressed hesitation to respond to questions because he explained that he would need more information to reach a conclusion. This caution and an insistence upon the importance of factual analysis may have re-assured senators that Tillerson has the kind of circumspect temperament that is desirable in any government official, particularly one who directs the nation's foreign policy. This may be a particularly attractive quality in Tillerson, who could serve as a counterweight to the more mercurial Trump.
Consideration of political ideology, always important in confirmation hearings, may be even more prominent than usual this year since several of Trump's nominees, particularly DeVos and Price, favor policies that may conflict with the traditions of the departments that they have been nominated to lead. The extent to which senators may properly use ideology as a criteria in deciding whether to confirm executive officers is a matter of perennial controversy among senators and scholars. Some contend that the Senate should defer heavily to the President's choice because the President has a mandate from the people to select administrators who favor the President's policies. Others favor more robust scrutiny, pointing out that senators, too, have a mandate from to promote the political views of the voters who elected them. A considerable level of deference is necessary because one hundred senators could never agree upon the ideal candidate to lead any executive department. Moreover, constraints of time and resources necessarily limit the level of scrutiny to which senators may subject nominees, particularly at the start of a new presidential administration, when the Senate must review so many nominations.
As the late Senator Henry M. Jackson of Washington explained many years ago, "these are the President's men and he is entitled to have them, barring some flagrant effort or abuse of his prerogatives in making his nominations." Similarly, Senator John H. Glenn once remarked that "faith and trust in key subordinates can have an important bearing on the efficiency and effectiveness of government."
The Senate, however, still needs to conduct a careful and independent review of nominees because executive officials are responsible not only to the President, but also to Congress and the people. As Louis Fisher, a leading expert on separation of powers, has observed, "[d]epartment heads and their assistants are not mere staff support for the President. They are called upon to administer programs that Congress has enacted into law." The Senate therefore has a duty to assure itself that the nominees are sensitive to the Constitution's separation of powers.
The issue of separation of powers played a particularly prominent part in the hearings on Mattis, who emphasized during his testimony before the Armed Services Committee that Congress should actively participate in decisions regarding the military. Mattis's declaration that "congressional oversight and appropriations, authorizations, are a critical part of civilian control of the military," along with similar statements, help to explain why his nomination sailed through the committee and was confirmed by a vote of 98:1.
Senators and scholars tend to agree that the Senate particularly needs to ensure that the Attorney General will place his responsibility as the nation's chief law enforcement officer ahead of his loyalty to the President. Senate Judiciary Committee members generally seemed satisfied in this regard with Sessions, who assured the committee that the attorney general "cannot be a mere rubber stamp" for the president.
The presence of a Republican majority in the Senate ensures that the confirmation process will be far less bumpy than if Democrats had a majority, particularly since many of the nominees espouse political views that are practically anathema to many Democrats. For example, James Richard "Rick" Perry, the nominee to lead the Department of Energy, once advocated the abolition of the agency. Similarly, Pruitt, in his capacity as Oklahoma's attorney general, has repeatedly sued the EPA to reduce environmental and public health regulations.
Even though Democrats cannot alone prevent the nomination of controversial nominees, their questioning of nominees at committee hearings can help gauge the extent to which they want to expend precious time and energy in opposing a nominee. For example, Democrats grilled DeVos about her ardent support for school vouchers and charter schools, which her critics fear would undermine public schools.
Several of Trump's nominees have espoused such extreme positions at various times in their careers that they have tried to re-assure perhaps even Republican senators that their views today, at least, are more moderate. Representative John Michael Mulvaney, the nominee to serve as federal budget director, declared during his hearing that senators should not "read too much" into his past suggestions that Social Security is a Ponzi scheme. He averred during his testimony that he would not recommend curtailment of the benefits of present retirees, although he explained that he might favor raising the age for eligibility. Carson, a longtime critic of social welfare measures, assured senators that "[s]afety net programs are important. I would never advocate abolishing them without having an alternative for people to follow."
Senators who disagree with nominees on fundamental policy issues also have the opportunity at confirmation hearings to provide nominees, in a face-to-face setting, with information and admonitions that might help nominees to better understand and appreciate opinions with which they disagree. In doing so, senators help to discharge their duty to provide "advice" in connection with nominations, which may help to make executive officials more circumspect or moderate in their administration of the laws and shaping of public policy, even though such advice is unlikely to cause them to change their views about specific issues, much less alter their fundamental ideologies. During the hearings on Trump's nominees, for example, Democrats have urged nominees to be mindful of the hazards of climate change and the plight of economically-distressed Americans. This kind of inter-branch colloquy may be one of the most useful aspects of the Senate's role in the confirmation process. It also provides an educative function for the American people.
It is unlikely that the Senate will reject any nominees on the basis of their ideology, particularly since Republicans have 52 seats in the Senate because Senate Democrats in 2013 abolished a filibuster rule that permitted forty senators to block a vote on nominations. Indeed, the Senate's deference toward Cabinet nominees is so high that it has rejected only nine during the past 228 years, mostly on account of issues of character and conflict of interest. Such issues might generate the withdrawal of nominees — one of President Obama's Cabinet nominees withdrew in 2009 because of failure to report income in a timely manner and another withdrew on account of allegations of influence peddling — but the hearings on Trump's nominees thus far have not disclosed any such serious defects in any nominees.
Even though the Senate seems likely to confirm all nominees, a robust confirmation process helps to ensure that executive officials conform to rigorous standards of character and ability. Vigorous and occasionally rambunctious confirmation proceedings also help to ensure that the political predilections of the officials who will administer the laws neither stray too far from the political preferences of the senators who help make those laws, nor from the views of the voters who elected senators to advise the President about nominees and to offer — or withhold — consent.
William G. Ross is the Lucille Stewart Beeson Professor of Law at the Cumberland School of Law at Samford University. He has published widely on constitutional law and constitutional history, including separation of powers issues.
Suggested citation: William G. Ross The Senate's Role in the Confirmation of Executive Officials, JURIST - Academic Commentary, February 2, 2017, http://jurist.org/forum/2017/02/William-Ross-senate-confirmation.php
This article was prepared for publication by Val Merlina, an Assistant Editor for JURIST Commentary. Please direct any questions or comments to her at