While Donald Trump's cabinet elections continue, the approval process and interim appointments work as follows

WASHINGTON — Despite the drama that cabinet appointments create every four years, it is extremely rare for a nominee to suffer defeat in a Senate vote.

The only time a new presidential nominee was rejected by a Senate vote was in 1989, when George H. W. Bush nominated former Texas senator John Tower as secretary of defense.

Tower was devastated by stories about his excessive drinking and what media reports at the time called “womanizing” and documented that he paid “special attention to secretaries” as the Pentagon’s arms negotiator in Geneva.

Tower was the subject of an FBI investigation into drinking and sexual harassment as part of the security investigation. Compare this to Florida Rep. Matt Gaetz, President-elect Donald Trump’s nominee for attorney general. Gaetz was once the subject of a federal investigation by the Department of Justice for sex trafficking; It’s the institution that Trump wants him to lead. Gaetz has repeatedly denied any wrongdoing and said he is innocent. But it seems likely that FBI files, which were never released, will be revealed at the confirmation hearing.

Perhaps Trump’s nomination of Gaetz will test a years-long streak of no Cabinet nominees being rejected by the Senate. Gaetz bragged about having sex with an underage girl, former House colleagues said. He has also earned the enmity of some of his Republican colleagues, although Trump’s influence has overcome all of this.

Or perhaps vaccine skeptic Robert F. Kennedy Jr., whom Trump nominated to head the Department of Health and Human Services. it could be. Although rarely mentioned these days, Kennedy had a history of drug use.

Cabinet nominees are more often withdrawing when it becomes clear they cannot be confirmed rather than face the embarrassment of a rejection vote in the Senate. Every new president since Bill Clinton has withdrawn at least one of his original nominees. Zoe Baird, Clinton’s first nominee for attorney general, withdrew her candidacy after admitting to employing 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 go about it.

What is a cabinet?

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

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

Why is the Senate given a say in who works for the president?

Article II is the section of the Constitution that deals with the executive branch. In Part II, it is clearly stated that although the president is the executive branch, he hires certain positions specified in the Constitution and other positions established by law “with the advice and consent” of senators. If the Senate is in recess, the president can make temporary appointments.

Here is what the Constitution says:

How many people in total does the president nominate?

Too much! The Civil Service Partnership pursues about 1,200 positions, most of which are well below Cabinet level and require Senate confirmation; but the president probably has no personal role in most of this. These are run by its staff or newly approved agency heads.

Some positions can be held for an entire presidential term without running for office. The process has slowed down much more in recent years.

How does the nomination and approval process work?

In modern times, the president-elect nominates his picks for top officials as soon as possible after winning the election. Planning should ideally begin before Election Day.

Oversight committees in the Senate could hold confirmation hearings before Inauguration Day on Jan. 20. They can guide nominees to the full Senate or hold a quick vote when the new president takes the oath of office. But things often take much longer.

How long does nomination take?

Longer than before. Even after Democratic senators changed the rules in 2013 to eliminate fraud in the approval of administration officials, the two parties became even more contentious over the process.

When the elder Bush 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 endorsements for 26 candidates. When Biden took office in 2021, he had an endorsement for 36 candidates. The slowness continues.

All three presidents before Trump’s first term had more than 200 nominees confirmed during their 200 days in office. At this point, Trump had 119 confirmed nominees and Biden had 118, but Trump had nominated far fewer people than other presidents.

Is there a way to bypass the nomination process?

Sort of. There is a statement in the Constitution regarding vacation appointments; Trump said he wanted to use it.

Leaders like Sen. John Thune also clearly don’t want to give away their authority over oversight, although their fellow Republicans who will control the Senate in January have not rejected the idea. Additionally, recess appointments last only until the end of the next Senate session, usually around the calendar year.

Frustrated with the process in his first term, Trump appointed multiple people to “act” for the agencies, but by law they can only serve in that capacity for a few months. There are also limitations on who can be made acting secretary.

Why doesn’t every president use recess appointments?

Presidents such as Ronald Reagan, Clinton, and both Bushes have used recess appointments, though usually for positions below the Cabinet level. Only three Cabinet secretaries have been appointed during the recess since 1900, according to the Senate Historical Office. The last one was Mickey Kantor, who briefly served as Clinton’s commerce secretary.

Barack Obama was sued when he used recess appointments to fulfill the function of the National Labor Relations Board. The U.S. Supreme Court has ruled that a vacation of at least 10 days is required to justify a vacation appointment.

So this was the end of recess appointments?

So far yes. Senators have now put an end to long recesses. The last 10-day recess they postponed was in 2016, according to records kept by the Senate Historical Office. Instead, they will take short breaks, and a single senator may enter the chamber every few days for a “pro forma” session during which no business is typically conducted.

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

Technically yes.

While Democrats can no longer oppose Cabinet nominees, they can slow down the process. It’s possible Republicans may decide to take a long recess, but that would mean an incredible abdication of power by GOP leaders. This would certainly be the subject of a lawsuit, and there is some evidence that a conservative Supreme Court would be skeptical of Trump’s effort to fill his Cabinet with a manufactured interloper.

Is there a gap?

There is another provision in the Constitution that some Trump allies are looking at. The House and Senate have been given the power to adjourn, but for more than three days, approval by both chambers is required. If the House and Senate cannot agree, the Constitution says this about the president:

So, if Senate Republicans do not want to give up their power, it is technically possible for House Speaker Mike Johnson to pass a postponement resolution to the House that the Senate would not accept. Trump could then adjourn the Senate for 10 days to pass the 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. It seems extremely unlikely that it will happen. But who knows.

Never in US history has the President tried to use this power to adjourn the House or Senate. The Senate Historical Office said it was not aware of any serious debate about this particular clause in the Constitution since the 1930s.

Conservative legal expert Edward Whelan writes about the idea in The Washington Post and urges Johnson to kill it.

Who was the first Cabinet candidate to be rejected?

The first Cabinet official to be rejected was Roger B. Taney, whom then-President Andrew Jackson, as Treasury secretary in 1834, wanted to gut the Second Bank of the United States, the forerunner of the Federal Reserve. (Trump coincidentally wants to wield more power over the Federal Reserve today.)

Senators rejected Taney even after he temporarily served in office, according to the Senate Historical Office.

The Senate then rejected Jackson’s proposed nomination of Taney for the Supreme Court. Jackson later promoted Taney to prominence again, but this time as chief justice of the Supreme Court. Taney was eventually confirmed and sworn in Jackson’s hand-picked successor, Martin Van Buren, as chief justice; Incidentally, the Senate had refused to become Jackson’s ambassador to England.

Appointed to the Supreme Court for life, Taney was, after all, an epic historical villain. He wrote the Dred Scott decision, which ruled that black Americans could never become citizens.