Jeff Sessions is unusual in three ways

On January 20, 2017, Jeff Sessions, Senator from Alabama, was nominated as Attorney General; he was confirmed on February 8 by a 52-47 vote.  It is fairly common for sitting Senators to be nominated to the Cabinet, and Sessions was the first Senator to endorse Donald Trump, so his selection was not surprising.  Moreover, he had a logical résumé as a former U.S. Attorney, former state attorney general, and longtime member of the Senate Judiciary Committee.

Nonetheless, there are at least three ways in which Sessions has had a remarkable history with Senate confirmations, and without further research, one might wonder if each of them is unprecedented:

  • 1.  Sessions became a Senator after having been rejected during the Senate confirmation process for an earlier appointed position; he therefore became a colleague of Senators who had voted against him.
  • 2.  His nomination as Attorney General faced serious opposition from Senators on the other side of the aisle, and his confirmation was delayed, whereas sitting Senators are usually confirmed promptly by their peers with negligible opposition.
  • 3.  While waiting for his own Cabinet confirmation, Sessions cast votes for other Cabinet nominees, such as Elaine Chao and Rex Tillerson.  (Of course, he did not vote for himself during his own confirmation vote; as usual for Senators in that situation, he voted “present,” equivalent to an abstention.)

We will research these three situations to determine how unusual each one is.

1. First, we consider the case of someone who is rejected during a Senate confirmation process but later becomes a Senator himself.  In 1986, Sessions was nominated by Ronald Reagan to become one of the judges1 on the U.S. District Court for the Southern District of Alabama, but his nomination floundered after some former colleagues, particularly one of his former assistant attorneys, accused him of having made remarks suggesting racial bias.  Those allegations from 31 years ago have received far more media coverage than any other aspect of his nomination for Attorney General, and it would be ancillary to our purpose to rehash them here, but we provide several sources2 for readers wishing to learn more.

On June 5, 1986, his nomination was blocked by the Senate Judiciary Committee, despite the Republicans holding a 10-8 edge over the Democrats.  Only eight of the 18 Senators voted to send his nomination to the full Senate with the committee’s recommendation, but the nomination was not doomed until the panel split 9-9 over whether to send his nomination to the full Senate at all; lacking a majority vote in favor, the nomination failed.

Of the 18 committee members who voted on Sessions in 1986, nine were still in the Senate when Sessions took office in 1997.3  (Sessions was elected to the seat of one of the Senators who had voted against him:  Howell Heflin, a Democrat who chose not to seek reelection in 1996.)  This no doubt made for some awkwardness because five of those nine had voted against him in at least one of the committee votes.  More surprisingly, four of the 18 are still in the Senate today; one of them (Patrick Leahy) voted against Sessions again, 31 years later.senators-who-voted-on-sessions-v2

Now for the question:  has anyone else been nominated for a position requiring Senate confirmation, been rejected during the confirmation process, then subsequently been elected to the Senate to serve alongside people who voted against him?  The answer is yes.  First, we scrubbed the fairly short lists of Cabinet nominees and Supreme Court nominees who were rejected in Senate votes, but we found none of these people later served in the Senate.  We then reviewed the list of unsuccessful nominees to lower federal judgeships and scrubbed it against the biographical directory of the U.S. Congress; a federal judge is, after all, the most direct parallel for Sessions.

We promptly found a match in Benjamin Tappan, the first person to whom the Senate ever denied a federal judgeship on a district court.  On April 12, 1833, Andrew Jackson gave Tappan a recess appointment as the lone judge on the U.S. District Court of Ohio; on January 20, 1834, Jackson nominated him to fill the position permanently.  On May 29, 1834, the Senate, dominated by anti-Jacksonian Whigs, rejected Tappan’s nomination by a vote of 11-28, thereby also removing him from the bench.  Four years later, he was elected in 1838 as Senator from Ohio, serving a single term from 1839 to 1845.  When Tappan first entered the Senate, he was serving alongside 11 of the 39 Senators who had voted on his confirmation, seven of whom had voted against him.4

Since Tappan, there have been 15 other nominees whom the full Senate voted to reject for district or circuit judgeships.  (This does not include Sessions because he was voted down in committee.)  None of the other 15 later served in the Senate.  There are countless other positions that require Senate confirmation, such as ambassadors or assistant secretaries in Cabinet departments, so it is impractical to review all of them.  However, it is remarkable that we have found such a direct precedent for Sessions.

2. Next, it appears anecdotally remarkable that Sessions, as a sitting Senator, encountered such resistance from his peers.  Senators pride themselves on their tradition of courtesy and comity, so nominations of sitting Senators are usually rubber-stamped; tradition aside, this also prevents the potential awkwardness of continuing to serve alongside a colleague after voting to quash his or her nomination.  (This courtesy does not extend to former Senators:  for example, the most recent Cabinet nominee to be defeated in a Senate vote was John Tower, whose 1989 nomination as Secretary of Defense was rejected 47-53, just four years after he stepped down as Senator from Texas.)

Sessions was the 39th sitting Senator5 to be nominated to the Cabinet—if we count Daniel Webster twice, since both of his nominations came while he was in the Senate.  This table lists them all chronologically:all-sitting-senators-v5

First, notice that every sitting Senator has been confirmed, except for Judd Gregg, who withdrew voluntarily due to policy differences with Barack Obama.  (If Gregg had remained in the process, there is no reason to think he would have been rejected; as a Republican nominated by a Democrat, he was a bipartisan choice.)

Second, notice the short times elapsed between nomination and confirmation:  on 30 of the 39 occasions, the Senator was confirmed within one day of the nomination.  It is therefore striking that Sessions was not confirmed until 19 days after his nomination, marking the second-longest confirmation wait ever for a sitting Senator.compact-confirmation-table-v2

We notice that four of the nine longest waits began in December, whereas no December nominee was confirmed in one day or less; it is reasonable to suspect that Senators, like many Americans, are not working at maximal efficiency in the lead-up to the Christmas season.  However, Sessions was not a December nominee.  Of the nine sitting Senators who had to wait more than a day for confirmation, he is one of only two who were nominated at the start of a new President’s term, James Barbour being the other.

Such expeditious treatment is not the norm for nominees other than sitting Senators.  For example, 23 of the 39 nominations of sitting Senators resulted in same-day confirmations, or 59.0%.  By contrast, there have been 689 nominees who were not sitting Senators, 204 of whom had same-day confirmations, or 29.6%.

Of course, the 19-day delay is just one quantitative sign of the unusual opposition to Sessions.  Another was the final vote:  47 Senators, all Democrats, voted against his confirmation, while Joe Manchin of West Virginia was the sole Democrat to support him.  Sessions is only the fifth sitting Senator in history to face opposition during his roll call confirmation vote, and he received nearly three times as many nay votes as the other four combined:

opposed-senators

Admittedly, the Democrats’ opposition to Sessions is in large part a reflection of their opposition to Trump.  Still, given that Sessions had the second-longest confirmation delay and by far the largest number of nay votes, it is safe to conclude that Session has faced more opposition than any other sitting Senator nominated to the Cabinet.

3.  While Sessions was waiting to be confirmed, seven other Trump nominees reached the full Senate for confirmation, and Sessions voted for five of them:sessions-votes-on-other-trump-nominees

It would obviously be improper to vote for himself, especially given the substantial pay raise involved, but there is no persuasive reason why he could not vote on other nominees:  he did not personally stand to benefit as a result of their confirmation, and he had no disqualifying personal ties to any of them.  (Senator Mitch McConnell dutifully recused himself during the confirmation vote for his wife, Elaine Chao.)

At most, one might argue that Sessions’ vote on other nominees could be influenced by a desire to ingratiate himself with his expected future boss, President Trump.  However, a factual review shows this is unconvincing for three reasons.  Sessions has been supporting Trump since February 2016, so his alignment with Trump (and, by extension, Trump’s nominees) is not the consequence of having recently been offered a job; 48 of the other 51 Republican Senators had, like Sessions, invariably voted in favor of Trump’s  nominees; and Sessions had never previously voted against any Cabinet nominee named by a Republican President.6

We therefore move on to the more interesting question:  is this the first time a Cabinet nominee has participated in a roll call vote on a fellow nominee?  This opportunity has almost never arisen, for two reasons.  First, as noted above, sitting Senators are usually confirmed within a day of nomination, a brief interval in which few other confirmation votes are likely to fall.  Second, fewer than one-quarter of Cabinet nominees in U.S. history have had roll call votes; most were confirmed without opposition or by voice vote, so in these cases we have no record of whether a given Senator voted.  Controversial nominees, who are the most likely to require roll call votes, tend to reach the Senate floor much later than promptly-confirmed sitting Senators.

For example, Hillary Clinton was a sitting Senator when she was nominated as Secretary of State on January 20, 2009; she was confirmed the following day.  Seven other Cabinet nominees (Steven Chu, Shaun Donovan, Arne Duncan, Janet Napolitano, Ken Salazar, Eric Shinseki, and Tom Vilsack) were confirmed on January 20, 2009, but Clinton had no opportunity to cast a roll call vote for any of them because all seven were confirmed by voice vote.

We therefore conducted the following review:  for every sitting Senator nominated to the Cabinet, we looked at the interval from their nomination through their resignation from the Senate,7 then we checked whether any other nominees had roll call confirmation votes within that interval.  As expected, this was found to be extraordinarily rare.  Before Sessions, we initially find that only three other Cabinet-nominated Senators had the opportunity to participate in roll call votes for fellow Cabinet nominees:

campbell-barbour-chase

We then reviewed the confirmation roll call records for Rush, Clay, Bates, and Blair, and we found that Campbell, Barbour, and Chase did not cast votes.  (Each roll call showed that several other Senators did not cast votes as well.)  Initially, this seems to suggest that Sessions was the first to vote on a fellow nominee.

However, we have been taking this interval a bit too strictly.  Cabinet posts are usually proffered behind closed doors, so a nominee receives, considers, and accepts the President’s offer before the nomination is publicly announced and conveyed to the Senate for consideration.  We therefore checked for any roll call votes that immediately preceded a sitting Senator’s publicly announced confirmation, and we found one.

Judd Gregg, a sitting Republican Senator from New Hampshire, was announced as Obama’s second nominee for Secretary of Commerce on February 3, 2009.  (Obama’s first nominee, Bill Richardson, withdrew.)  Obama and Gregg made this announcement at a press conference held at 11:00 AM Eastern Time.  Hours later, it was revealed that New Hampshire’s Democratic governor, John Lynch, had promised to name Gregg’s former chief of staff, Bonnie Newman, as interim Senator after Gregg’s confirmation.  As a precondition to accepting the nomination, Gregg had reached this agreement with Lynch to avoid having his seat change parties.

The night before the press conference, at 6:15 PM Eastern Time on February 2, Gregg cast a yea vote for Eric Holder, Obama’s nominee for Attorney General; Holder was confirmed, 75-21.  Gregg’s vote was therefore cast approximately 17 hours before his own nomination was publicly announced.  It is impossible to believe that Obama offering the post to Gregg, Gregg considering the offer, Gregg reaching an agreement with Lynch, Gregg accepting Obama’s offer, and Obama scheduling the press conference all occurred within that 17-hour window, most of which was nighttime.  We therefore conclude that Gregg voted for Holder while Gregg was aware of, was inclined to accept, and had likely already accepted Obama’s offer of a Cabinet post.

As with Sessions, we do not consider Gregg’s vote to be in any way improper:  he did not stand to benefit from Holder’s confirmation, there is no reason to think his vote was an effort to curry favor with Obama, and it is almost certainly the same way Gregg would have voted if he had not been offered a Cabinet post.  (In his 18 years in the Senate, Gregg never voted against a Cabinet nominee, though he did vote against some sub-Cabinet nominees, such as Assistant Attorney General nominee Walter Dellinger.)  Gregg later withdrew from consideration on February 12.  The only confirmation vote between February 3 and 12 was for the sub-Cabinet position of Deputy Secretary of Defense; Gregg did not cast any vote on that nominee, William J. Lynn III.

Conclusions:

1.  Sessions was the second federal judicial nominee who was rejected during the Senate confirmation process but later became a Senator and served alongside some of those who had voted against him.  The first person fitting this description was Benjamin Tappan in the 1830s.

2.  For his nomination as Attorney General, Sessions faced extraordinary opposition for a sitting Senator, including the second-longest confirmation delay and the largest number of nay votes.

3.  Sessions was the second sitting Senator to cast a roll call vote for another Cabinet nominee after having been offered a Cabinet post himself.  The first was Judd Gregg in 2009, though Gregg cast his vote 17 hours before his nomination was publicly announced.

Footnotes:

1. On July 10, 1984, Congress passed 98 Stat. 333, which created dozens of new federal judge positions nationwide.  Among other changes, it expanded the U.S. District Court for the Southern District of Alabama from two judges to three.  Filling dozens of new positions is not a fast process, so it was nearly two years later that Reagan nominated Sessions to fill the new seat in Alabama.  The entire statute can be found here; the relevant section (202) begins on page 15 of the PDF.

2. Representative news articles from 1986 can be found in the Los Angeles Times and New York Times.  Most present-day articles repeat the allegations uncritically, but one of the exceptions is found in Politico.  Thanks to the Library of Congress, truly industrious readers can review the full 576-page documentation for his 1986 nomination and hearings; the testimony of Thomas Figures, who made the most widely-cited allegations against Sessions, begins on page 302.  Figures surely would have been called to testify in this year’s confirmation hearings if he had not died in 2015.

3. Sadly, one Senator was gone immediately after the vote: John P. East killed himself on June 29, 1986, just 24 days after voting in favor of Sessions. His suicide was related to his health problems and had nothing to do with Sessions, of course.

4. Here is the table of Senators who voted for or against Benjamin Tappan:senators-who-voted-on-tappan-v2

5. Note that sitting Senators do not include those who were nominated when they were retiring:  for example, William S. Cohen chose not to run for reelection in November 1996, so his Senate term ended on January 3, 1997.  Even though Bill Clinton announced his intention to nominate Cohen as Secretary of Defense on December 5, 1996, Cohen could not be confirmed until after Clinton’s inauguration on January 20, 1997, so Cohen was not a sitting Senator at the time of his confirmation.  Other recent examples of retiring Senators nominated to Cabinet posts are John Ashcroft and Spencer Abraham, both in 2001.  The table also excludes three sitting Senators who were never formally nominated:  James A. Pearce and Edwin D. Morgan declined Cabinet nominations in 1850 and 1865 respectively, while Thomas J. Walsh died as a sitting Senator in 1933, before Franklin D. Roosevelt’s inauguration but after Roosevelt had announced his intention to nominate Walsh as Attorney General.

6.  More surprisingly, Sessions never voted against any of Bill Clinton’s Cabinet nominees either, and his votes on Barack Obama’s Cabinet nominees were split evenly:  ten yeas, ten nays.  Before the Trump Administration, here is a list of all Cabinet roll call confirmation votes since Sessions became a Senator in 1997:how-sessions-voted-before

7.  Although it is common practice today, Senators did not always resign immediately after being confirmed for Cabinet posts.  For example, Samuel Dexter was nominated as Secretary of War on May 12, 1800; he was confirmed on May 13, 1800; but he did not resign from the Senate until May 30, 1800.  The longest delay was that of James Harlan, who resigned from the Senate 67 days after having been confirmed as Secretary of the Interior in 1865.

Sources:

For Cabinet nomination and confirmation dates, we used the list prepared by the Senate Historical Office in March 2016, updated with recent news articles about Trump’s nominees.  Our source for Senators’ terms was the Biographical Directory of the United States Congress.

The Federal Judicial Center was our source for the list of unsuccessful nominees to federal judgeships, as well as for historical information about the U.S. District Courts in Ohio and Alabama.  Their content-rich website is the definitive source for historical information on the federal judiciary, and it deserves a wider audience.

Our biographical information on Benjamin Tappan came from “Ohio’s Founding Fathers” by Fred J. Milligan, page 270.  The roll-call vote on Tappan’s confirmation came from the Senate Executive Journal, as did the roll call votes for Richard Rush, Henry Clay, Edward Bates, and Montgomery Blair; we thank Mary Baumann of the Senate Historical Office for directing us to that source.

From 1989 onward, roll call votes were obtained from the Senate’s Recent Senate Roll Call Votes website.  For 20th century roll call votes before 1989, the source was the New York Times archive.

For Judd Gregg, sources for his nomination date and his agreement with Lynch include NBC News and CNN; his nomination press conference with Obama, including its 11:00 AM time stamp, can be viewed at C-SPAN; his withdrawal was covered by the New York Times; and his vote for Holder, along with its date and time, can be found on the official Senate roll call vote page.

© 2017 by Quiznox.com

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