October 27, 2017

The backlog of transportation-related nominations in the U.S. Senate increased this week, with the nominees for Federal Highway Administrator and for Ambassador to the International Civil Aviation Organization (ICAO) gaining committee approval and being placed on the Senate’s Executive Calendar.

The two newly reported nominees (Paul Trombino for FHWA and Thomas Carter for ICAO) join seven other transportation-nominees on the Calendar, with four more likely to join them in the next two weeks after a scheduled October 31 hearing before the Senate Commerce Committee. (Everyone should bookmark Eno’s Transportation Nomination Status for constantly updated information on transportation-related nominations.)

The lack of Senate-confirmed appointees at the Department of Transportation and elsewhere is a growing problem. While the Trump Administration is lagging behind its recent predecessors at sending up nominations to the Senate (see this table to compare the pace of senior USDOT nominations for every first-year President since Ronald Reagan), once a nomination is received by the Senate, further delays outside the norm are the Senate’s fault, not the White House.

And the combination of then-Majority Leader Harry Reid’s (D-NV) “nuclear option” rules change in November 2013 and general Democratic backlash agains the Trump Administration has led to a state of affairs where all but the most innocuous nominations now require 30 hours of debate time on the floor (the post-cloture time limit after the invocation of cloture by a majority vote). Senate conservatives believe, with justification, that if almost any nominee is going to take the same 30 hours of time, the Senate’s time is most efficiently spent confirming Article III judges who will have lifetime appointments, not sub-Cabinet level nominees who will probably be leaving in two or three years anyway. (The Senate is scheduled to consider four judges in a row next week – the 30 hours of post-cloture time on the first one is already running, and the others will run the balance of next week.)

It has always been expected that more controversial nominees will have to move through the cumbersome cloture process. Department of Transportation General Counsel nominee Steven Bradbury is one such nominee – his unrelated record at the Justice Department under George W. Bush, and his private sector legal work on behalf of companies like airbag manufacturer Takata, ensured that his nomination went by a party-line vote of 14 to 13 in committee and that a formal “hold” was then placed on the nomination by Senator Tammy Duckworth (D-IL) and entered on the Executive Calendar in the “Notices of Intent to Object” section.

But two controversy-free senior USDOT appointees – Under Secretary for Policy nominee Derek Kan, and Assistant Secretary for Governmental Affairs nominee Adam Sullivan – were approved by committee more than four months ago and have been pending on the Calendar ever since. They, along with Federal Railroad Administrator nominee Ronald Batory (approved in committee on August 2) are being held up by Senate Minority Leader Chuck Schumer (D-NY), Senator Cory Booker (D-NJ), and their home-state colleagues in hopes of getting the Trump Administration to commit billions of dollars to a new Amtrak tunnel under the Hudson River and other projects in the “Gateway Program.”

(How do we know that this is the holdup? Because the Senators themselves told the Wall Street Journal, that’s how.)

The latest cost estimate for the Gateway Program is about $29.5 billion, and the NY/NJ delegation want the federal government (either directly or through Amtrak) to pay half of that. In order to get the three nominees released, that works out to a ransom of $4.9 billion per nominee, which is quite impressive.

The practice of the Senate is to endorse a large package of noncontroversial nominations by unanimous consent on the way out of town before a long recess. (The big nomination package just before the August recess was the one that Schumer et al kicked Kan, Batory and Sullivan out of.) That could be the week before the week-long Thanksgiving recess, or it could be mid-December before the year-end adjournment (assuming both chambers aren’t in session through Christmas Eve or New Years trying to pass tax reform).

There are 18 Senate-confirmable Presidential appointments at the U.S. Department of Transportation. This is the Trump Administration’s status for those positions as of October 27, 2017.

Confirmed by the Senate (4):

1. Secretary (confirmed January 31)
2. Deputy Secretary (confirmed May 16)
3. MARAD Administrator (confirmed August 3)
4. PHMSA Administrator (confirmed October 5)

Pending on the Senate Executive Calendar (5):

1. Under Secretary for Policy (on Calendar since June 29 – held up by Schumer et al)
2. General Counsel (on Calendar since August 2 – hold placed by Duckworth)
3. Assistant Secretary for Governmental Affairs (on Calendar since June 21 – held up by Schumer et al)
4. FHWA Administrator (on Calendar since October 25)
5. FRA Administrator (on Calendar since August 2 – held up by Schumer et al)

Pending in Senate committee (2):

1. Assistant Secretary for Research and Technology (hearing scheduled for October 31)
2. FMCSA Administrator (hearing scheduled for October 31)

No nomination made yet (5):

1. Assistant Secretary for Aviation and International Affairs
2. Assistant Secretary for Transportation Policy
3. Chief Financial Officer
4. FTA Administrator
5. NHTSA Administrator

No vacancy at this time (2):

1. FAA Administrator (5-year term expires January 2018)
2. Inspector General (serves during good behavior)