Betsy DeVos, tight confirmations, and party-bucking Senators

On February 7, 2017, Betsy DeVos was confirmed as Secretary of Education by the narrowest of margins:  a 50-50 tie in the Senate, broken in her favor by Vice President Mike Pence, yielding a final confirmation vote of 51-50.  As nearly every news outlet noted, this was the first time in U.S. history that a Vice President cast the tie-breaking vote for a Cabinet confirmation.

However, this scenario raises several other questions, which we will answer in turn:

  1. What were the tightest Cabinet confirmation votes before this?  Surprisingly, we will find two previous confirmations that also hinged on a single vote each.
  2. The 50-50 tie occurred because two Republican Senators, Susan Collins and Lisa Murkowski, voted against a nomination by a Republican President.  How common is it for Senators to oppose the Cabinet nominee of a President from the same party?
  3. It seems unusual for a Vice President to cast a tie-breaking vote so early in his tenure, but how does this compare to previous Vice Presidents?

1. To answer the first question, we reviewed all prior Cabinet nominees.  From George Washington to Donald Trump, there have been approximately 730 Cabinet nominations, the exact number1 depending on whether we count nominees who declined or withdrew at various stages of the process.  However, nearly all of these nominees were confirmed without roll call votes, either because they were unopposed or because only voice votes were taken.2  Our quantitative analysis is therefore limited to the 124 that had documented roll call votes, up to and including DeVos.

The first table shows all nominations when Senators voting yea (in favor of the nominee) made up between 25% and 75% of the vote.  Even with such an intentionally broad definition of a close vote, only 37 nominations make the cut.

votes-by-percentage-v3Next, to narrow it down further, we consider nominations where the spread between yea and nay votes is 10 or fewer.  This is a better measure of tightness because it reflects how many Senators would have had to change their votes to alter the outcome, though it skews toward older nominations when the Senate had fewer members.  Nonetheless, four of the 11 nominations occurred in the past three decades:  John King, Thomas E. Perez, Betsy DeVos, and John Tower.  Tower is well-known as the most recent Cabinet nominee rejected by a Senate vote.

votes-by-difference-v2

If any Senator who voted for DeVos had switched from yea to nay, her nomination would have been rejected by a 49-51 vote, and Pence would have played no role.  With some reflection and some extra historical knowledge, we can see from this table that two other Cabinet confirmation votes were just as close as that of DeVos, in the sense that a single Senator changing his vote could have changed the outcome.

  •  John C. Spencer, nominated by John Tyler in 1843, was confirmed as Secretary of the Treasury by a 22-20 vote.  If even one Senator voting yea had changed his vote to nay, the resulting 21-21 tie would have doomed Spencer’s nomination because a majority is needed for confirmation.  Tyler had become President on the death of William Henry Harrison, so the Vice Presidency was vacant, hence there would have been no one to cast a tie-breaking vote in support of Spencer.
  • Charles B. Warren, nominated by Calvin Coolidge in 1925, was ultimately rejected by the Senate by a vote of 39-41.  On the initial ballot, however, Warren received a tie vote of 40-40.  Coolidge’s Vice President, Charles Dawes, had been inaugurated just six days earlier and was at his hotel, not expecting Warren’s confirmation vote until later.  By the time Dawes was summoned to break the tie, Senator Lee Overman, the only Democrat to vote yea, had changed his vote to nay, resulting in the final outcome and defeating Warren.  Even aside from Overman’s change of heart, nine of the Senators voting nay were Republicans, like Coolidge; if any one of them had voted for their party’s nominee, Warren would have been confirmed.  Coolidge nominated Warren again, but in the second vote six days later, Warren was rejected more decisively, 39-46.  The position of Attorney General was eventually filled by John G. Sargent.

So although DeVos is the only Cabinet nominee whose confirmation was determined by the Vice President’s tie-breaking vote, two other confirmation outcomes have been determined by single-voter margins as well.

2.  Next, we investigate how common it is for a Senator to vote against a Cabinet3 nomination made by a President from the same party.  Collins and Murkowski did this in the case of DeVos, and as noted above, nine Republican Senators crossed party lines in 1925 to vote against Warren.

This is found to be more common than one would expect:  from Franklin D. Roosevelt onward, most Presidents have encountered some resistance within their own party.  (It is not interesting to include earlier Presidents because so few of them had Cabinet nominees with roll call votes; aside from Coolidge, there were no others in the 20th century.)

The most persistent party-bucker in this period was Jesse Helms, a Republican who voted against 10 Cabinet members appointed by four Republican Presidents.  On the other side of the aisle, the title is a five-way tie among Rush D. Holt Sr., Patrick McCarran, Frederick Van Nuys, William Proxmire, and Bernie Sanders.  We include Sanders with an asterisk:  he is primarily an independent, but he caucuses with the Democrats and sought the Democratic nomination for President.

anti-party-senators-v4-fdr-onward-thin

In the above table, the largest bloc of same-party opponents came in 1940, when 14 Democrats opposed Roosevelt’s nomination of the hawkish Henry L. Stimson as Secretary of War.  Stimson was confirmed by a safe margin, 56-28, but he may have been nonplussed because he had previously been confirmed to the Cabinet under two other Presidents, both times without opposition.  The 28 Senators who voted against him in 1940 included 11 who had been in the Senate in 1929, when he was confirmed as Secretary of State.  More surprisingly, one of the 28, Ellison D. Smith of South Carolina, was also in the Senate in 1911 when Stimson was confirmed for his previous stint as Secretary of War.

Lastly, we consider how much impact the party-bucking Senators have had on nominees.  In the 20th century, only three Cabinet nominees were voted down by the full Senate:  Charles B. Warren in 1925, Lewis L. Strauss in 1959, and John Tower in 1989:

failed-nominees

We have already discussed the fact that Warren would have been confirmed if any one of nine Republican Senators had voted yea instead of nay.  Likewise, Strauss would have been confirmed in a 48-47 squeaker if both Republican Senators who voted nay had switched to yea.  Tower, however, would have remained defeated even if the lone Republican voting against him, Nancy Landon Kassebaum, had switched her vote; Kassebaum later told the press that if her vote could have saved the nominee, she would have felt obliged to vote yea.  However, since Tower would still have lost by a 48-52 margin with Kassebaum’s support, she felt free to vote her conscience.

3.  Lastly, we consider whether Pence was unprecedented in casting a tie-breaking vote so early in his tenure.  This event seems particularly striking because he succeeded Joe Biden, who famously became the only two-term Vice President never to cast a tie-breaking vote.

The Senate Historical Office has compiled a list of tie-breaking votes cast by Vice Presidents; though compiled from several sources and verified in official Senate records, they acknowledge there may also be such votes not included in their list.  Nonetheless, this is the most definitive source available.  From their list, we see that 16 Vice Presidents cast their first tie-breaking vote during the same calendar year when they took office, so we placed those 16 Vice Presidents in a spreadsheet, along with their inauguration dates and the dates of their first tie-breaking votes, then sorted by the time elapsed between those two dates:

vp-tiebreakers-v2

As expected, Pence is on the very low side, casting his first vote just 18 full days into his term.  However, this is not the record because Chester A. Arthur cast not one but two tie-breaking votes on his 14th full day in office.  Arthur was forced to settle a tie related to slates of committee members and chairmen submitted by his fellow Republicans, after the Senate deadlocked 37-37 along party lines.  This was a baptism by fire for Arthur, who had never held any elected public office before the Vice Presidency; of course, it was nothing compared to the shock of becoming President later that year after the assassination of James Garfield.

Conclusions:

1. Although Betsy DeVos’s confirmation vote yielded a tie that had to be broken by the Vice President, two other Cabinet confirmation votes can be considered as tight as hers, given that each of the outcomes could have been flipped if a single Senator had voted the other way.  Those were the confirmation votes for John C. Spencer in 1843 and Charles B. Warren in 1925.

2. From Franklin D. Roosevelt onward, most Presidents have faced some Senate opposition within their own parties to at least one or two of their Cabinet nominees.

3.  By historical standards, Mike Pence cast his first tie-breaking vote unusually early in his Vice Presidency, though it was a few days short of record-setting.

Footnotes:

1. Using the list of 719 nominations compiled by the Senate Historical Office in March 2016, then updating it with Trump’s 15 nominations since then, we get a total of 734. However, the 2016 list includes the first six Postmasters General, who served before that position became part of the Cabinet in 1829. We therefore consider the best number to be 728. Throughout this article, we limit our discussion of Cabinet members to the heads of Cabinet departments, currently numbering 15. We exclude other positions that have sometimes been accorded Cabinet rank, such as EPA Administrator and Ambassador to the United Nations.

2. Roll call votes for Cabinet nominations became routine only in recent decades:  for example, there were only 43 from George Washington through Franklin D. Roosevelt, whereas there were 119 from Harry Truman through Barack Obama.  The President with the highest percentage of roll call votes was Ronald Reagan:  at Senator William Proxmire’s request, roll calls were recorded for the confirmations of all but one of Reagan’s 33 nominees, even those without nay votes.  Proxmire was the gadfly of Reagan’s Cabinet, most notably as the sole vote against five of Reagan’s nominees (Malcolm Baldrige, Frank Carlucci, John S. Herrington, Donald P. Hodel, and William French Smith). As noted later in this article, Proxmire also voted against three of Jimmy Carter’s nominees, despite Carter being a fellow Democrat.

3.  Again, we are limiting our discussion to the core Cabinet members. Republican Senator Rand Paul voted against the confirmation of Mike Pompeo, Trump’s nominee for CIA Director, but this is not one of the 15 core Cabinet positions.

Sources:

For Cabinet nominations, we used the list prepared by the Senate Historical Office in March 2016, updated with recent news articles about Trump’s nominees, but see footnote 1 for a minor caveat about the original list.

Our account of Charles B. Warren’s confirmation vote was based on an article at Congressional Quarterly Press; contemporary coverage in the New York Times on March 12, 1925; and a colorful account on the Senate website.

We compiled the table of party-bucking Senators by manually going through every roll call vote, one by one.  From 1989 onward, the roll call votes were obtained from the Senate’s Recent Senate Roll Call Votes website.  Before 1989, the principal source was archives of the New York Times.

As always, our source for Senate terms and biographical details of Senators was the Biographical Directory of the United States Congress.

For Vice Presidential tie-breaking votes, our source was the Senate Historical Office’s list.  Official sources, such as the Architect of the Capitol’s list of Vice Presidential inaugurations and the GPO publication Vice Presidents of the United States: 1789-1993, agree that John Adams began his Vice Presidential duties on April 21, 1789, even though George Washington’s term as President began on April 30, 1789.  The narrative of Arthur’s tie-breaking vote is indebted to this Senate history article.

© 2017 by Quiznox.com

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