WASHINGTON– For all the drama generated by Cabinet nominations every four years, the defeat of a nominee by a Senate vote is extremely rare.

The only time a nomination for a new president was rejected by a Senate vote occurred in 1989, when George HW Bush nominated John Tower, a former senator from Texas, as secretary of defense.

Tower was destroyed by stories of his excessive drinking and what news reports at the time called “feminization”, and which Pentagon documents documented at the time as paying “special attention to secretaries” as an arms negotiator in Geneva.

Tower was investigated by the FBI for alcoholism and sexual harassment, as part of a security check. Compare this situation with that of Florida Rep. Matt Gaetz, President-elect Donald Trump’s nominee for attorney general. Gaetz was previously the subject of a federal sex trafficking investigation by the Justice Department — the same agency Trump wants him to lead. Gaetz has repeatedly denied any wrongdoing and says he is innocent. But the FBI files, which have never been made public, appear likely to be brought up during his confirmation hearing.

Perhaps Trump’s nomination of Gaetz will test the years-long streak of no Cabinet nominee being rejected by the Senate. Former House colleagues said Gaetz bragged about having sex with an underage girl. Additionally, he has attracted the enmity of some of his Republican colleagues, although Trump’s influence could overcome all that.

SEE ALSO | Trump transition: President Mike Johnson urges House Ethics Committee not to release Matt Gaetz report

Or maybe it will be Robert F. Kennedy Jr., the vaccine skeptic whom Trump picks to lead the Department of Health and Human Services. Kennedy has a history of drug use, although it is rarely mentioned these days.

Rather than suffer the humiliation of a rejection vote in the Senate, Cabinet nominees are more often withdrawn when it becomes clear they cannot be confirmed. Every recent president since Bill Clinton has withdrawn at least one of their initial nominees. Clinton’s original nominee for attorney general, Zoe Baird, withdrew her candidacy after admitting she employed undocumented immigrants to care for her child.

Here’s a look at the Cabinet confirmation process, why it exists, where it went wrong and how Trump wants to find a way around it.

What is the Cabinet?

Presidents run the federal government with the help of a group of close advisers and the heads of federal agencies like the Justice Department and the Pentagon. Some Cabinet members, such as the vice president and White House chief of staff, do not need Senate approval. But most of them do.

Some roles, such as U.S. ambassador to the United Nations or director of the CIA, have been held at the Cabinet level in some, but not all, administrations. The current Cabinet, led by President Joe Biden, has 26 members.

Why does the Senate have any say in who works for the president?

Article II is the section of the Constitution that deals with executive power. In Section II, it is clarified that although the President is the executive, he hires certain positions set forth in the Constitution and others established by law with the “advice and consent” of the senators. If the Senate is in recess, the president can make temporary appointments.

Here is what it says in the Constitution:

How many people does the president appoint in total?

A lot! The Public Service Partnership tracks about 1,200 positions, most well below the Cabinet level, that require Senate approval — although the president likely has no personal role in most of them. They are managed by its employees or by newly confirmed agency heads.

Some positions can last an entire presidency without a candidate. The process has also become much slower in recent years.

How does the nomination and confirmation process work?

In modern times, an elected president names his choices for top officials as soon as possible after winning the election. Planning should ideally begin before Election Day.

Senate oversight committees can conduct confirmation hearings before Inauguration Day, Jan. 20. They can refer nominees to the full Senate or take quick votes when the new president is sworn in. But things often take much longer.

How long does an application take?

Longer than before. Even after Democratic senators pushed through rule changes in 2013 to remove the filibuster during the confirmation of administration officials, the two parties became more adversarial about the process.

When Bush Sr. took office in January 1989, senators had already confirmed seven of his 15 nominees, according to the Partnership for Public Service. When Trump began his first term, he had two confirmations for 26 nominees. When Biden took office in 2021, he had confirmation for 36 nominees. The slowness continues.

The three presidents before Trump’s first term all had more than 200 nominees confirmed after 200 days in office. Trump had 119 and Biden had 118 confirmed nominees at that time, although Trump nominated far fewer people than other presidents.

Is there a way to bypass the nomination process?

Sort of. There is this mention in the Constitution of recess appointments – something Trump has said he wants to use.

Although fellow Republicans who will control the Senate in January haven’t rejected the idea, leaders like Sen. John Thune clearly don’t want to give up their oversight power either. Additionally, recess appointments only last until the end of the next Senate session, usually around the calendar year.

Trump, frustrated with the process during his first term, appointed several people as “acting” agency heads, but they can only serve in those roles for a few months, according to the law. There are also limits on the number of people who can serve as acting secretary.

Why don’t all presidents use playdates?

Presidents like Ronald Reagan, Clinton, and both Bushes have used recess appointments, although usually for lower Cabinet-level positions. Only three cabinet secretaries have been appointed during a recess since 1900, according to the Senate Historical Office. The most recent was Mickey Kantor, who briefly served as Clinton’s Commerce Secretary.

When Barack Obama used vacation appointments to operate the National Labor Relations Board, he was sued. The U.S. Supreme Court has ruled that at least 10 days of suspension are required to justify a suspended appointment.

So was that the end of recess dates?

So far, yes. Senators simply stopped taking long vacations. The last ten-day recess for which they were adjourned was in 2016, according to records maintained by the Senate Historical Office. Instead, they will take short breaks and only one senator may enter the room every few days for a “pro forma” session in which no business is typically transacted.

Could Senate Republicans just take a break and let Trump appoint a cabinet?

Technically, yes.

Although Democrats can no longer obstruct Cabinet nominees, they can slow down the process. It’s possible that Republicans decide to adjourn for an extended recess, but that would constitute an incredible abdication of power by GOP leaders. It would certainly be litigated, and there is evidence that a conservative Supreme Court would be skeptical of an attempt to pack Trump’s cabinet in a manufactured suspension.

Is there a flaw?

There is another clause in the Constitution that some Trump allies are examining. The House and Senate each have the power to adjourn, but for any period longer than three days, they need the approval of each chamber. If the House and Senate cannot agree, the Constitution says this about the president:

So if Senate Republicans are unwilling to give up their power, it’s technically possible that House Speaker Mike Johnson could convince the House to pass a recess resolution that the Senate would not accept. Trump could then adjourn the Senate for 10 days to pass a Cabinet.

Let’s explore this. Johnson is expected to have a very slim majority. He would need every House Republican to join him in his quest to declare parliamentary war on a Republican-controlled Senate. This seems extremely unlikely. But who knows.

The president has never, in U.S. history, attempted to adjourn the House and Senate using this power. The Senate Historical Office said it was not aware of any serious discussions about this particular clause of the Constitution since the 1930s.

Conservative legal scholar Edward Whelan wrote about the idea in the Washington Post and encouraged Johnson to reject it.

Who was the first Cabinet nominee to be rejected?

The first Cabinet official to be rejected was Roger B. Taney, whom then-President Andrew Jackson wanted to make Treasury Secretary in 1834 to gut the Second Bank of the United States, the precursor to the Federal Reserve. (Trump, coincidentally, would like to exercise more power over the Federal Reserve today.)

Senators rejected Taney even after he held the position temporarily, according to a Senate Historical Office report.

Then the Senate rejected Taney when Jackson proposed it to the Supreme Court. Jackson then nominated Taney again, but this time for chief justice of the Supreme Court. Taney was eventually confirmed and, as chief justice, administered the oath of office to Jackson’s hand-picked successor, Martin Van Buren, whom, coincidentally, the Senate had rejected as Jackson’s ambassador to England.

Taney, appointed to the Supreme Court for life, was ultimately an epic historical villain. He authored the Dred Scott decision, which ruled that black Americans could never be citizens.

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