Ask PolitiFact: How hard will it be for Joe Biden to get his Cabinet confirmed?

President-elect Joe Biden has steadily added to his list of prospective Cabinet nominees. What reception can they look forward to in the Senate? In all likelihood, a rough one.

"It's going to be hard, hard, hard," said Paul C. Light, a professor at New York University’s Robert Wagner School of Public Service. "Republicans will go after the weakest nominees and will seek to split Democratic support between progressives and moderates."

Nominations are rarely voted down on the Senate floor, although some nominations have been withdrawn after the Senate sent signals that it was unhappy with a prospective appointee. The closest call in recent years was Betsy DeVos, Trump’s pick for education secretary whose nomination required Vice President Mike Pence to cast the tie-breaking vote.

"In the last 28 years, the Senate has confirmed 95% of the president’s first ​Cabinet secretary nominations, and almost all of them have had pre-inaugural hearings," said Christina Condreay, a researcher at the Center for Presidential Transition. 

That’s the way the process is supposed to work. Currently, only a simple majority is needed to approve a nominee, with filibusters not allowed. However, experts say that Cabinet confirmations have become increasingly difficult in today’s era of hyper-polarization. 

"Scoring points against the new president will be a compulsion that cannot be fully suppressed," said Steven Smith, a political scientist at Washington University in St. Louis.

Most presidents since Franklin D. Roosevelt saw relatively few votes against their Cabinet appointments. But the frequency of "no" votes skyrocketed under presidents Barack Obama and Donald Trump.

No previous president is even close to Trump and Obama. George W. Bush had 157 "no" votes, followed by Ronald Reagan with 124, Richard Nixon with 113, and Franklin Roosevelt with 83. As recently as Bill Clinton, the number was as small as 18 over two terms.

Obama’s nominees collectively received 477 "no" votes over eight years, averaging about 12 "no" votes per nominee. In all, 10 different Obama nominees received at least 25 "no" votes. ("No" votes include votes from both the opposing party and the president’s own party, though the vast majority are from the opposing party.)

The treatment of Obama’s nominees was worse than those of George W. Bush. But Obama, in retrospect, had it easier than Trump. 

In four years — half the time Obama served — Trump nominees received 950 "no" votes, or 31 per nominee. Twenty Trump nominees, or twice as many as Obama’s, received at least 25 "no" votes.

Not surprisingly, the parties differ on why Trump nominees attracted more "no" votes than Obama nominees did. Republicans accuse Democrats of knee-jerk antipathy to Trump, while Democrats counter that Trump’s nominees were more controversial than those Obama offered. (A separate, but related, issue is the slow pace at which Trump’s nominees were confirmed, but Trump’s slow start in forwarding nominations to the Senate was a big reason for that.)

Still, there’s wide expert agreement that partisan polarization has made matters worse.

"Although the Senate historically has been very deferential to a president's Cabinet nominations, the hyper-partisanship of the past four years will make the confirmation process for Cabinet members and other leading executive officials harder for Biden than for his predecessors," said William G. Ross, a professor of law and ethics at Samford University.

Some of this may have roots in policy disputes, Ross said, "because Biden's nominations for positions relating to foreign relations and the military seem to signal a shift to a more militant and interventionist foreign policy." However, "much or most of it is likely to be motivated by partisanship."

There are a few new wrinkles as Biden takes office. Whereas George W. Bush, Obama, and Trump all came into the presidency with a Senate controlled by their party, there’s a good chance Biden won’t. The Democrats would have to win two Georgia runoffs in January to take control of the Senate. Otherwise, the Republicans will have a majority.

"In terms of predicting the prospects for Biden's confirmations, we don't have a lot of useful historical data to go on, given the lack of recent precedent of a first-term president who faces a Senate dominated by the other party," said Sarah B. Snyder, a professor with American University’s School of International Service.

While opposition to the other party’s nominations always presents an opportunity for fundraising and energizing the party base, this year may ratchet up that sentiment, given the degree to which rank-and-file Republicans have followed Trump’s lead in declaring Biden’s win fraudulent.

"I think pretty much everything is going to be harder for Biden than it was for his predecessors, judging from the extent to which there appear to be large swaths of the electorate and Republican elected officials who have embraced debunked election-fraud claims," said Lauren C. Bell, a Randolph-Macon College political scientist.

A best-case scenario for the president-elect may be to accept a few failures as the cost of seeing the majority of his picks confirmed.

"Some Republicans will be indiscriminate in their attacks," Bell said. "But I think most senators will be more discerning — they will oppose nominees that they find genuinely objectionable, but probably not oppose all of Biden’s nominees."

Bell offered a "doomsday" scenario in which Republicans decide not to move any nominees at all and then never recess the Senate, making it impossible for Biden to even make recess appointments. Recess appointments are a way to get an appointee into a Senate-confirmed post, for a term-limited period, without Senate approval, by making the appointment when the chamber is in recess.

"I would like to think that there are enough Republican senators who would refuse that course, but it’s just impossible to know what might happen," she said. 

If Biden did face that scenario, he might have one card to play. In fact, it’s a card that Obama and Trump have already played as they faced increasing resistance to nominees: Creating more top positions that aren’t Senate-confirmable.

By Light’s calculations, at the end of George W. Bush’s administration, there were 314 presidentially appointed jobs that did not require a Senate confirmation. At the end of Obama’s first term, there were 364, and at the end of Obama’s second term, there were 472. The numbers aren’t out yet for the end of Trump’s term, but Light predicts that they’ll be higher still. 

As Obama’s vice president, "Biden comes out of an administration that added significant numbers of non-Senate-confirmed appointments," Light said. So he should be well aware of that tactic, Light said.

The downsides are additional layers of bureaucracy and acting secretaries serving for unusually long periods of time, as occurred under Trump.