If Gov. Sam Brownback is to become the next U.S. ambassador-at-large for International Religious Freedom, President Donald Trump will have to resubmit his nomination to the U.S. Senate early next year, according to Senate rules.
David Popp, spokesman for Senate Majority Leader Mitch McConnell, R-Ky., said in an email Friday that the Senate is tentatively scheduled to adjourn the first session of the 115th Congress, “sine die,” on Tuesday, Jan. 2. At that point, under a Senate rule, any presidential nominations that have not been acted upon must be returned to the president.
“Nominations neither confirmed nor rejected during the session at which they are made shall not be acted upon at any succeeding session without being again made to the Senate by the President,” Senate Rule 31 states.
That rule can be suspended by unanimous consent. But after the Senate adjourned Thursday evening, a new Senate executive calendar was published listing only one name being held over, John Rood, a nominee to be an under-secretary of defense. The calendar listed 139 other nominations not being held over, including Brownback’s.
Also on the list of nominations being returned to the White House was that of Johnson County attorney Holly Lou Teeter, an assistant U.S. attorney and a University of Kansas law school graduate who was nominated to be a federal district judge in Kansas.
Brownback’s nomination, however, has political significance because it had been widely expected that he would resign the governor’s office before the 2018 legislative session begins, handing the baton to Lt. Gov. Jeff Colyer, who is running for a full four-year term of his own in the 2018 gubernatorial election.
Politically, it would be to Colyer’s advantage to move into the governor’s office as soon as possible so he can begin establishing his own identity as governor and taking on the mantle of the incumbent in what is now a crowded and highly competitive Republican primary.
Brownback, however, has said repeatedly that he will not step down unless or until his nomination is confirmed by the Senate, and it now appears that won’t happen until after the 2018 session starts on Jan. 8, if it happens at all.
The White House did not respond to a request for comment.
Carl Tobias, a law professor at the University of Richmond who follows presidential nominations closely, said Trump won’t be able to use his constitutional authority to make a recess appointment, which temporarily bypasses the Senate confirmation requirement, because the Senate will not be in recess long enough for that to happen. He noted that the Senate has scheduled so-called “pro forma” sessions throughout the holidays, a procedure that involves one senator to gavel in and gavel out every few days, so the Senate technically won’t be in recess.
“I wouldn’t put it past Trump, but Obama didn’t try to do that, just because the Supreme Court said in 2014 that that was OK, the Senate could set its own rules, and these pro forma sessions are meant to prevent that from happening,” Tobias said in a phone interview Friday.
In 2014, the U.S. Supreme Court struck down three of then-President Barack Obama’s recess appointments to the National Labor Relations Board as unconstitutional because he made them during a three-day break between pro forma sessions of the Senate.
Regarding Teeter, Tobias said she would likely be confirmed quickly when the Senate reconvenes next month. Because it takes unanimous consent to hold over a nomination, it only takes one senator to block a nominee. In the Senate Judiciary Committee, Sen. Mazie Hirono, D-Hawaii, was the only member to vote against Teeter’s nomination.
The American Bar Association had rated Teeter as “unqualified” because she fell just a few months short of having the minimum 12 years of legal experience needed to be rated as qualified. Other Democrats on the panel, including Sens. Dick Durbin of Illinois and Diane Feinstein of California, supported Teeter despite the ABA’s rating.
“I think she’s on track. It’s just going to take a while before she gets a Senate floor vote,” Tobias said.
Regarding Brownback, though, Tobias said confirmation may be more difficult, especially in light of the special election in Alabama earlier this month, where Democrat Doug Jones upset Republican Roy Moore in a race to fill the seat vacated when Republican Jeff Sessions was named attorney general, leaving Republicans with only a two-seat majority.
“The margin is so thin in the Senate when it comes back, they could pick off two GOP members,” he said. “But I would think he would have a fair amount of good will, sort of senatorial courtesy, from the time he was senator. I had the sense that he was a pretty good colleague and that even Democrats could work with him and that he was easy to work with.”