Confirming the Cabinet: A Senate Democrats FAQ

Yes, things are bad. No, there's no magic button.

The nation is devolving into an authoritarian state with extremist policies, and yet the Senate is basically confirming Donald Trump’s nominees more or less as if the Constitution was operating normally. This has a lot of Democrats extremely upset…with Chuck Schumer and Senate Democrats. That’s mostly misplaced, perhaps because — with good reason — most people aren’t experts on Senate procedure.

Let’s try this one FAQ style.

Q: Mitch McConnell fought hard against Joe Biden’s nominees. Why won’t Senate Democrats fight at least as hard against Donald Trump’s nominees?

A: Actually, Democrats are doing everything McConnell did, and more.¹ They’re also doing more than they did against Trump’s picks eight years ago. The big thing that the minority party can do is to force a cloture vote and then use up the maximum time available. In 2017, Democrats forced cloture votes on ten of fifteen cabinet confirmations; Republicans did the same on nine of fifteen Biden selections in 2021. This time, the Democrats are filibustering everyone except Secretary of State Marco Rubio.

Q: Anything else?

A: Yes. Democrats have forced extra, unnecessary recorded votes several times, which chews up a bit of time and annoys the majority. I counted 14 of those votes so far. Republicans didn’t force any such votes in 2021, at least through mid-April.

Q: Shouldn’t Democrats at least be voting against every Trump nominee?

A: Maybe, maybe not, but what we can say is that they’re voting “no” on cabinet nominations at a record pace. In 2021, Republicans forced recorded votes on six cabinet picks, and averaged 17.5 “no” votes out of the 50 Republicans. So far this time, Democrats have forced recorded votes on every nomination, and have averaged 31.5 “no” votes out of 47 Democrats.

Q: Okay but that still means that lots of Democrats are voting to confirm.

A: Sure. And of course Biden didn’t nominate anyone remotely similar to Tulsi Gabbard or Pete Hegseth. Nor was Biden embarking on a anti-Constitutional crime spree. There’s a case to be made that more should be opposing even the relatively non-controversial choice. Would it matter? I can’t see how. I am confident that if four Republicans are willing to oppose anyone, the 47 Democrats will all be there. As far as messaging goes, it’s hard to believe that something that is barely reported would have any messaging value at all.

Q: What about a talking filibuster?

A: The Democrats have done two of these, including one going on as I write this against RFK Jr. I think it’s a good idea as far as it goes, but it’s a publicity stunt, not a method for delay. If they weren’t talking all night, the final vote on confirmation would happen at the same time, anyway.

Q: I’ve heard Democrats are agreeing to time limits instead of forcing the Senate to work all night (except for those two times) and through the weekend. Shouldn’t they reject that?

A: They could, but it wouldn’t delay anything, and forcing the Senate to remain in session late into the night and on weekends puts more of a burden on the minority, not the majority. At least on one weekend, the time agreement pushed back a nomination vote to a bit later than it would have been had Democrats occupied the Senate floor all weekend.

Q: Some people are calling for Democrats to shut down the Senate entirely. Can they do that, and if so, why aren’t they doing it?

A: Basically, the answer to this is: Technically yes, but not really. In both chambers, there are a variety of methods that the minority party or even individual Members can use to slow things down, theoretically indefinitely. However, the chamber majority always can have the last word; they can always impose changed rules and procedures by majority vote if they so choose. If Democrats really did use all available procedural tricks to fully shut down the Senate, Republicans would put an end to it fairly soon – maybe a day or two, certainly no longer than a week.

Q: Okay, so why don’t Democrats do it for as long as it lasts?

A: Two reasons. One is that Democrats are trying to split the Republican majority, and “abusing” Senate rules – which is how every Republican would interpret it – works against that goal. Perhaps that’s just wishful thinking, but the other reason is quite realistic. Senate rules and procedures right now are generous to the minority party. If Republicans start changing things, Democrats are apt to lose out in tangible ways, such as losing the ability they’re using now to delay confirmations. Perhaps a short burst of publicity would be worth it anyway, but remember that there’s no guarantee that it would be positive publicity for the Democrats.

Q: So you aren’t advising either for or against it?

A: Yeah. Just pointing out that the upside is (very) limited and uncertain, and that there are potential costs to doing it. It might be worth it, but it’s no magic bullet.

Q: Is there a magic bullet?

A: Sorry, no. If there was a way that a Senate minority could really block nominations, Mitch McConnell would have used it long ago. Didn’t happen.

Q: Wait didn’t that yutz of a football coach Senator stop everything over military promotions?

A: Tommy Tuberville of Alabama, and, no. What he did isn’t really relevant here.

Q: How so?

A: You really don’t want the details.

Q: Try me.

A: Fine. Tuberville put “holds” on all the military promotions. A hold is basically just a threat to filibuster; respecting it (and not proceeding to the nomination) is up to the Senate majority leader. Because nomination filibusters (including military promotions) can be defeated by simple majority vote, a threat to filibuster really just means a threat to tie up Senate floor time.² And because minority parties have placed a blanked filibuster on most or all civilian executive branch (and judicial) nominations, a hold at this point is nothing more than a threat to do what the minority party is already doing.

Tuberville realized that the exception to the blanket filibuster was military promotions. Those must also be confirmed by the Senate, but unlike civilian nominations they are usually confirmed, in bunches at a time, by unanimous consent or voice vote. So threatening a “hold” on those really meant something — and since there are a lot of them, processing them one by one would chew up way too much Senate floor time needed for legislation and all the rest of the nominations. So it was an effective threat in a way that putting a hold on, say, State Department nominations can’t be…

…up to a point. Tuberville’s hold didn’t delay anything except the military promotions, and therefore (not surprisingly) turned out to be quite unpopular. Eventually, Democrats started hinting that they would change Senate procedure to allow for the promotions to be taken care of in large batches despite the filibuster, and Republicans lost tolerance for the whole episode. Tuberville didn’t get the policy he wanted because the leverage he thought he saw in Senate procedures was an illusion.

Q: Are you telling me that there’s nothing more the Democrats can do? They’re US Senators!

A: On nominations? Really, there’s not much. They could do a better job at pushing public opinion, of course. Schumer isn’t very good at messaging (few party leaders in Congress have been), but several Senators are better at it, and they could be more creative and effective than they’ve been so far. They should do that.

But seriously: there is no magic button. They can and perhaps will keep ratcheting up foot-dragging, which might make a small difference down the road. They certainly can, and probably will, continue the filibuster-everything pattern.

Q: Anything else?

I will be harshly critical with congressional Democrats on one thing. Yes, they’re getting a lot of constituent phone calls and other pressure from individuals and organized groups, asking them to do things they can’t actually do. One thing they can do, however, is shut up and listen. Democratic groups are frustrated, angry, and scared right now, and of course they’re going to push on their elected representatives to do more without really knowing whether it’s possible or not. Yes, this can be annoying (especially to staff who have to deal with the bulk of it), but so be it. I don’t care whether they’re mistakenly urging congressional Democrats to press non-existent magic buttons or asking why they haven’t said the thing that they’ve repeated until they’re blue in the face. It’s always good for the party when their rank-and-file get activated, and it never helps to whine about it. Especially not to reporters.

The bottom line on nominations, however, is that the fault here is entirely with Trump and with Senate Republicans.

1. The big thing that McConnell did in January 2021 was unique to the situation: Democrats were technically in the minority in the 50-50 Senate until Kamala Harris was sworn in as vice-president on January 20, and McConnell exploited that to slow things down for the first three weeks of the session.

2. All of this was very different before 2013. It used to take 60 votes to beat a nomination filibuster, just as it still does for legislation. Because Republicans overused the filibuster to defeat nominations, the Democratic majority imposed new procedures by majority vote so that cloture only takes a simple majority.