This week, we’ll begin the contentious process of holding hearings on President-Elect Donald Trump’s cabinet nominees. This would be an unusually charged political environment based on the identities of Trump’s picks alone, but it will be even more so because the transition team has simply failed to line up all their ducks in a row. Most of their nominees have not completed their vetting process by the FBI and the Office of Government Ethics (OGE), or even come close.
[Senate Majority Leader Mitch] McConnell’s office declined to respond to warnings by Walter M. Shaub Jr., director of the Office of Government Ethics, who said in a letter released Friday the current confirmation calendar is “of great concern to me” because nominees have not completed a required ethics review before their hearings.
The schedule “has created undue pressure on OGE’s staff and agency ethics officials to rush through these important reviews,” Shaub wrote in response to an inquiry by Democratic senators. “More significantly, it has left some of the nominees with potentially unknown or unresolved ethics issues shortly before their scheduled hearings.”
Shaub added: “I am not aware of any occasion in the four decades since OGE was established when the Senate held a confirmation hearing before the nominee had completed the ethics review process.”
The Democrats are ready to pounce, and they’re leading with Elizabeth Warren who is demanding a delay in all confirmation hearings until the ethics reviews are completed. Other leaders, like Sens. Patty Murray and Dick Durbin echoed that sentiment, and even usually mild-mannered Sen. Richard Blumenthal of Connecticut was reading from the same hymnbook.
The Democrats can actually exercise some delaying tactics. To use the example of the Judiciary Committee, at least two members of the minority must be present at a hearing for it the have a quorum to conduct business, and “At the request of any member, or by action of the Chairman, a bill, matter, or nomination on the agenda of the Committee may be held over until the next meeting of the Committee or for one week, whichever occurs later.”
And that’s assuming that hearings are allowed at all. According to Rule 26 of the Senate, the Democrats do not have to consent to hearings occurring on a given day if they don’t want to, although this would apply to all hearings, and it would have to be revisited every day.
5. (a) Notwithstanding any other provision of the rules, when the Senate is in session, no committee of the Senate or any subcommittee thereof may meet, without special leave, after the conclusion of the first two hours after the meeting of the Senate commenced and in no case after two o’clock postmeridian unless consent therefor has been obtained from the majority leader and the minority leader (or in the event of the absence of either of such leaders, from his designee). The prohibition contained in the preceding sentence shall not apply to the Committee on Appropriations or the Committee on the Budget. The majority leader or his designee shall announce to the Senate whenever consent has been given under this subparagraph and shall state the time and place of such meeting. The right to make such announcement of consent shall have the same priority as the filing of a cloture motion.
The reason that this prohibition doesn’t apply to the Budget or Appropriations committees is the same as the reason that the Republicans can use the Budget Reconciliation process to attack Obamacare without needing 60 votes. They don’t want to let obstructive tactics threaten our credit rating (if Congress won’t authorize payment of our bills) or cause irresolvable government shutdowns. So, when it comes to spending money, a simple majority will do in a pinch.
The Democrats can delay almost all of the nominations, however, by not allowing hearings to occur or by having committee members ask for postponements. This can’t be sustained for long, but it can be done for a short period of time to make sure that ethics reviews are completed.
They actually have the better of the argument here, and accusations that they’re being partisan and stinky won’t carry much water after the Merrick Garland stunt the Republicans pulled.
We’ll see how much fight the Democrats have.
