McConnell is not all-powerful against Biden's Cabinet nominees

(Editor’s Note: This piece first appeared in the Washington Examiner on November 19, 2020.)

President-elect Joe Biden will face many formidable challenges when he assumes office in January. One of the first obstacles that Biden must overcome after Inauguration Day is getting the Senate to approve his Cabinet, the top government officials who will help the new president implement his agenda over the next four years.

Democrats and Republicans agree that Senate Majority Leader Mitch McConnell is Biden’s chief adversary in the looming fight over his Cabinet. They contend that McConnell will have the power to veto Biden’s Cabinet picks if his party holds on to its Senate majority next year and if he remains its leader. Sen. Chris Murphy, a Democrat from Connecticut, said he expects that McConnell will use his veto power to compel Biden “to negotiate every single Cabinet secretary, every single district court judge, every single U.S. attorney with him.” Republicans predict that McConnell, who has not yet acknowledged that President Trump lost the election, will veto Biden’s picks if he believes them to be “radical progressives,” deems them “clearly unqualified,” or otherwise suspects them to have “ethical problems.”

The new Senate will include at least 48 Democrats, comprising 46 Democrats and two independents who caucus with them, and at least 50 Republicans. McConnell’s power depends on the outcome of two special elections that have yet to occur in Georgia. In other words, voters in the Peach State will decide which party will control the Senate next year and, by extension, whether McConnell will remain majority leader. Democrats will take control of an evenly divided Senate if they win both races thanks to Vice President-elect Kamala Harris’s tie-breaking vote.

But the fate of Biden’s Cabinet picks does not depend on what happens in Georgia. This is because McConnell does not get to veto who the president nominates to serve in it, and McConnell does not single-handedly determine which nominees the Senate considers and which ones it ignores. The Senate’s rules do not empower him to prevent senators from voting on presidential nominations.

Of course, McConnell took credit in 2016 for the Senate's decision not to consider Merrick Garland's nomination to serve on the Supreme Court. However, the Garland debate instead highlights the limits of McConnell's power as a majority leader. That is, McConnell did not veto Garland. He was not solely responsible for the Senate’s actions. McConnell merely joined forces with other anti-Garland senators to rally undecided Republicans behind a strategy of keeping the nomination bottled up in the Judiciary Committee until after that year’s presidential election. That committee did not act on Garland because the Republicans who served on it, which didn't include McConnell, decided not to hold hearings or vote on the nomination. And Democrats sealed Garland’s fate when they opted against using the rules to circumvent the committee roadblock and bring his nomination straight to the Senate floor over Republicans’ objections.

McConnell would have been powerless to stop the Senate from considering Garland without his fellow Republicans' support on the Judiciary Committee and Democrats' acquiescence. This demonstrates that the Senate majority leader is not as powerful as most people imagine. In reality, the Senate's rules do not give individual senators the power to veto what their colleagues consider. The rules instead provide all senators with equal power to start and end debates over presidential nominations.

For example, the Senate refers presidential nominations to relevant committees of jurisdiction under Rule XXXI. The rule stipulates that the committee referral process happens automatically, without the majority leader’s involvement, “unless otherwise ordered” by the Senate. In other words, senators will have an opportunity to debate Biden’s Cabinet picks in their committees unless the full Senate, not just McConnell, orders the confirmation process in specific cases to unfold differently. And doing that requires the Senate to pass a resolution, which can be filibustered, or adopt a unanimous consent agreement, which requires all senators to agree.

Rule XXVI stipulates that a majority vote of a committee's members is needed to send a presidential nomination to the full Senate. The rule does not require the majority leader to sign off on nominees before proceeding to the next stage in the confirmation process. It prohibits the majority leader from voting for or against nominees in committees on which the majority leader does not serve. And it gives the majority leader's vote the same weight on the committees on which the majority leader does serve as the votes of every other senator.

McConnell is also powerless to stop senators from debating Biden’s Cabinet picks after they clear the committee stage of the confirmation process. After a committee reports a nomination, it is placed on the Senate’s executive calendar. The executive calendar is the list of nominations and treaties that senators may debate. Once a nomination is on the executive calendar, any senator (not just the majority leader) may offer a motion to proceed to its consideration. Senators can make the motion at any time, and it cannot be filibustered. Therefore, the Senate will vote on whether to start a debate on Biden's nominees immediately after a senator makes a motion to proceed to consideration.

McConnell also lacks special powers when it comes to ending debate on presidential nominations. Senators could filibuster presidential nominations before 2013 and 2017, when Democrats and Republicans, respectively, used the nuclear option to circumvent the Senate's rules permitting unlimited debate unless three-fifths of senators duly chosen and sworn, typically 60, vote to invoke cloture or to end debate on a nominee. Consequently, 51 senators can now schedule a final confirmation vote on Biden's Cabinet picks over their colleagues' objections. If McConnell tries to veto the president's nominees by filibustering them, pro-nominee senators may use Rule XXII to overcome his obstruction by filing a cloture petition signed by 16 senators. As with the motion to proceed, any senator may file a cloture petition, and any senator can sign it.

Even if Republicans win in Georgia, the Senate is almost certain to vote on Biden’s Cabinet picks. This suggests that the rhetoric surrounding McConnell’s veto has more to do with influencing what happens in the outstanding races than it does with the balance-of-power dynamic between Democrats and Republicans in the Senate. It may also represent an attempt by Republicans to pressure Biden to negotiate with them over the people he nominates for the government’s top jobs.