Is Betsy DeVos’ Confirmation as Secretary of Education in Jeopardy?

Betsy DeVos, President Donald Trump’s nominee for Secretary of Education, looks to have a bumpy road toward confirmation that some believe is in doubt.

The Senate HELP Committee is scheduled to vote on her confirmation on Tuesday after a couple of delays and a lackluster performance by DeVos at her confirmation hearing.

Is her confirmation in jeopardy? Possibly.

Republicans only have a 12 to 11 majority on the Senate HELP Committee, and U.S. Senator Al Franken (D-MN) has indicated that there is not a single Democrat Senator who will vote for her. Whether this is partisan bluster or an actual whip count remains to be seen, but DeVos is being vigorously opposed by Democrats.

A 2015 report by the Congressional Research Service explains how committees typically handle nominations:

A committee considering a nomination has four options. It may report the nomination to the Senate favorably, unfavorably, or without recommendation, or it may choose to take no action at all. It is more common for a committee to take no action on a nomination than to report unfavorably. Particularly for policymaking positions, committees sometimes report a nomination favorably, subject to the commitment of the nominee to testify before a Senate committee. Sometimes, committees choose to report a nomination without recommendation. Even if a majority of Senators on a committee do not agree that a nomination should be reported favorably, a majority might agree to report a nomination without a recommendation in order to permit a vote by the whole Senate. It is rare for the full Senate to consider a nomination if a committee chooses not to report it and the committee is not discharged by unanimous consent.

If Democrats are truly unified in their opposition, and if one Republican vote is flipped her nomination could get stalled in committee, especially if they choose not to report on the nomination.

There is still a way for the nomination to move forward however.

Although very few nominations proceed without the support of a committee, chamber rules make it possible for the full Senate to consider a nomination a committee does not report. Technically, Senate Rule XVII permits any Senator to submit a motion or resolution that a committee be discharged from the consideration of a subject referred to it. A motion to discharge a committee from the consideration of a nomination is, like all business concerning nominations, in order only in executive session.20 If there is an objection to the motion to discharge, it must lie over until the next executive session on another day. It is fairly common for committees to be discharged from noncontroversial nominations by unanimous consent, with the support of the committee, as a means of simplifying the process. It is far less common for Senators to attempt to discharge a committee from a nomination by motion or resolution.

It is less likely that her nomination will be held up if the Senate does vote for it. Nominations only need a majority vote to be approved. Now pre-2013 DeVos’ nomination could have possibly lost a cloture vote, but in 2013 Senate Democrats, when they were in the majority, changed the rules that cloture for any nomination except for the Supreme Court only require a simple majority vote, not a 3/5 majority vote that was previously needed.

We’ll have to see what happens on Tuesday.

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