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UPDATE: Presidential Transition and Cabinet Confirmations


Immediately after Donald Trump’s surprise victory over Hillary Clinton, the Democrat Party and others who could not come to the realization that he would be the 45th President of the United States, began efforts to discredit his election. There have been suggestions that the elections results were compromised by the Russians “hacking” of private emails. Although there is no evidence that actual voting was impacted, the confluence of the accusations’ strategy was to leave an impression with the public that this was possibly the case. Since the election, there has also been sharp criticism of those picked for key Trump administration positions. Although this is normal politicization, the underlying tone of the debate that attacks the legitimacy of the election is not. Some segments of the opposition continue down this path but, for the most part, election decertifying is waning and now concentrating on confirmation hearings.


The Founding Fathers of the United States created the Senate to be world’s greatest deliberative body with the right to unlimited debate. The “Upper Chamber” was to be the chamber where minorities have their say and protected from majority domination. George Washington once referred to the Senate as the “saucer” where “hot coffee” from the lower house is poured to cool off! The Senate takes its time to debate issues by parliamentary design through the requirement of a “yes” vote from 3/5 “of the Senators duly chosen and sworn” to cut off debate and proceed to vote on the issue. This is referred to as a Senate “cloture” vote. If 100 Senators are sworn in office (this is the full senate) at the time, then you would need 60 Senators to cut off debate. This is relevant because this includes not only legislation but also the threshold for ending debate on nominees for all Executive Branch positions and Judicial Branch positions beneath the Supreme Court.

In 2013, when the Democrats controlled the Senate, then Senate Majority Leader Harry Reid decided to reduce the number required to invoke cloture to a simple majority of 51 Senators so he could get President Obama judgeships approved. The “nuclear option” process the Majority Leader used to accomplish this parliamentary change is too complex to get into in this short paper. Suffice it to say, he succeeded in changing the parliamentary process to lower the threshold for appointment on appointment confirmations. However, legislation remains under the old process rules.


The dynamic long-term impact of Harry Reid’s action is that this Administration now has the 51 votes to confirm any of its nominees through the Senate process as long as all the Republicans vote in a block. The norm for incoming Administrations is to start the cabinet nominee hearings in the Senate as soon as the new Congress begins, which is historically a couple of weeks prior to the President elect being sworn into office. Currently most of the hearings have been scheduled with some already underway. The Republican strategy is to provide Trump with approved cabinet members upon his swearing in on January 20th.

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