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Will McConnell flout custom by rejecting Biden Cabinet nominees?

Will McConnell flout custom by rejecting Biden Cabinet nominees?
© Bonnie Cash/Getty

On Thursday, November 5, as Joe BidenJoe BidenMinnesota certifies Biden victory Trump tells allies he plans to pardon Michael Flynn: report Biden says staff has spoken with Fauci: 'He's been very, very helpful' MORE’s electoral chances continued to improve, Axios reported that Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellImmigration, executive action top Biden preview of first 100 days Spending deal clears obstacle in shutdown fight McConnell pushed Trump to nominate Barrett on the night of Ginsburg's death: report MORE (R-Ky.) was threatening to reject more progressive Cabinet nominees in order to force the president-elect to select more moderate candidates. McConnell’s pre-inauguration bluster is extremely unusual and highlights the importance of the Georgia Senate runoff races.

Since George Washington convened the first Cabinet meeting on November 26, 1791, the Senate has offered first term presidents, both Democrats and Republicans, a wide berth to select their own nominees. Historically, Congress has recognized that presidents can govern best with their preferred administration, a common sense approach.

Of course, not every nominee has received Senate approval. Some candidates have withdrawn their own nominations to avoid causing the president the embarrassment or challenges that go along with a rejected nomination. Usually, candidates withdraw their nominations if the initial internal investigations turn up legal conflicts, tax issues or serious concerns about their reputation.

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For example, in January 1993, Zoë Baird withdrew her nomination for attorney general after news broke that she had broken the law by employing two illegal immigrants as a nanny and chauffeur. The following month, Clinton’s second choice, Judge Kimba Wood, also withdrew her nomination after similar allegations.

Occasionally, presidents have pushed forward with controversial nominations and the Senate rejected their choices. In a few cases, the Senate was concerned about the nominees’ close ties to a particular industry. In 1925, President Calvin Coolidge nominated Charles B. Warren as attorney general. The Senate rejected Warren’s nomination because the senators worried his close ties to the Sugar Trust would undermine his ability to enforce antitrust laws. 

Other times, senators have rejected nominees for perceived professional or personal failures. In 1815, President James Madison nominated Henry Dearborn as the new secretary of war. Dearborn had served as secretary of war for Thomas Jefferson but had performed poorly as a general during the War of 1812. The Senate rejected his nomination but allowed Dearborn to withdraw his candidacy to avoid embarrassment. 

In 1989, the Senate rejected John Tower for more personal reasons. President George H.W. Bush had nominated Tower as secretary of defense. After investigating claims of ties with defense contractors, drunkenness and womanizing, the Senate rejected Tower’s nomination.

While rejections and withdrawals have occurred, they are relatively rare. The Senate has rejected only nine Cabinet nominees in more than 230 years of department secretary nominees. The president or a candidate has withdrawn the nomination only 15 times. 

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In 1789, Washington appointed the first three department secretaries and the first attorney general. Since then, the Senate has refused to consider a nominee only once. In 1868, Andrew Johnson forced Edwin Stanton to resign as secretary of war. Johnson then nominated Thomas Ewing Sr. in Stanton’s place. The Senate refused to report the nomination from committee and Stanton’s resignation led the House of Representatives to bring articles of impeachment against President Johnson.

To be clear, the Senate had offered past presidents discretion based on precedent and accepted norms, but the Senate is not legally obligated to do so. The last five years have shown how much of our political system is governed by norms and precedents, and just how willing Mitch McConnell is to break them. 

McConnell’s flouting of custom sets up a potentially tense transition period for President-elect Biden and his ability to appoint his preferred Cabinet. If Democrats win both Georgia Senate runoff races, then Vice President-elect Kamala HarrisKamala HarrisBiden teams to meet with Trump administration agencies Biden: 'Difficult decision' to staff administration with House, Senate members Ossoff, Warnock to knock on doors in runoff campaigns MORE can break the tie and provide the majority needed to approve Cabinet nominations. 

On the other hand, if the Republicans win one or both of the seats, McConnell could obstruct a Biden Cabinet nomination. In order to do so, McConnell would need to enforce complete obedience from all Republican senators, and that compliance is not guaranteed. President-elect Biden and Democrats in the Senate might be able to use precedent and the history of Cabinet nominations to convince specific senators to consider the president’s nominees on their merits — not on their political affiliation. 

Either way, it is very unusual for the makeup of a Cabinet to depend so heavily on the outcome of a couple of Senate runoff races. We are definitely in historic territory.

Lindsay M. Chervinsky, Ph.D. is scholar in residence at the Institute for Thomas Paine Studies at Iona College and the author of “The Cabinet: George Washington and the Creation of an American Institution.” Follower her on Twitter @lmchervinsky.