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Eno Transportation Weekly

More Transportation Nominees Move Through Senate

August 4, 2017

At an executive session on August 2, the Senate Commerce, Science, and Transportation Committee approved four of President Trump’s nominees to positions at USDOT. Two of those made it into the traditional pre-August-recess en bloc package of dozens of nominations approved by the Senate on August 3. The four nominees approved at the August 2 markup were:

The committee approved Buzby, Batory, and Sumwalt by voice vote without incident during its meeting. The next day, Buzby and Sumwalt were included in a package of nominees that were confirmed by the Senate before they left for the August recess.

As ETW reported last week, Senate Commerce conducted nomination hearings for both Buzby and Batory on July 28, just a week before approving them. Both of them are seasoned experts in their field.

Buzby, who told the committee he is “proud to be an anchor-clanker,” served 34 years on active duty in the Navy. He argued that the merchant marine should be a priority in transportation policymaking.

Batory is a longtime railroad executive who most recently served as President and COO of Conrail. Batory views a transition to performance-based rulemaking at the FRA as one of his key objectives, should he be confirmed. For more information about Batory, read ETW’s previous article on his nomination.

Sumwalt has sat on the board since President George W. Bush first appointed him in August 2006. President Trump designated him as vice chairman of NTSB in March and reappointed him as an NTSB member for a five-year term, both of which were approved by the committee on July 29. However, on that same day, Trump announced that he was nominating Sumwalt for chairman – which required the committee to vote on him again.

(Click here for ETW’s coverage of Sumwalt’s nomination hearing – including a question from Senator Cruz about the July 2016 hot air balloon crash.)

While the first three nominees breezed through with a voice vote, Steven Bradbury again faced opposition from Democrats on the committee.

Bradbury is currently a partner at Dechert LLP and has represented clients in a number of high profile incidents over the past few decades – the most recent of which is the suit against TK Holdings Inc. (Takata Corporation) for its defective airbags.

At his nomination hearing in June, Democrats grilled Bradbury about his past clients and questioned whether he was willing to recuse himself from investigations involving Takata. At one point, Senator Bill Nelson (D-FL) even brought a Takata airbag and inflator out from underneath the dais to explain how it had killed 16 Americans and injured many more.

Bradbury vowed to recuse himself from any matters involving Takata unless the Secretary explicitly granted him a waiver, but Nelson was not convinced.

“I respect Mr. Bradbury’s many years of experience,” he said, “but his refusal to recuse himself from all potential safety matters involving the Takata air bag crisis raises serious questions about his ability to be independent, and to independently carry out his role as General Counsel.”

Sen. Tammy Duckworth (D-IL) said that she strongly opposed Bradbury’s appointment, citing his involvement in enabling the CIA’s use of “enhanced interrogation techniques” under the Bush Administration. She repeated her statement from the nomination hearing: “an unprincipled lawyer, paired with an unprincipled president, is a dangerous combination regardless of the agency in which he serves.”

Nevertheless, Thune cited Bradbury’s “broad support in legal community” and a “stellar legal career,” and indicated that former USDOT Secretaries Norm Mineta and Rodney Slater had both written letters in support of his nomination.

Bradbury was ultimately approved in a party-line vote of 14-13.

Before the Senate abruptly departed for recess on August 3, Majority Leader Mitch McConnell (R-KY) and Minority Leader Chuck Schumer (D-NY) brought forward a bipartisan package of 63 nominees. This included Buzby and Sumwalt, two rather uncontroversial nominees.

And while Bradbury was not expected to be included in the package (his nomination will probably require the cumbersome two-day cloture process, with roll call votes), the it was hoped that Batory, Derek Kan (for Under Secretary of Transportation for Policy) , and Adam Sullivan (Assistant Secretary of Transportation for Government Affairs) were also going to be included in the package – but they were not. Those nominees must now wait until the Senate returns from recess in September, or even later.

The Wall Street Journal reported in its August 5 issue that the New York and New Jersey Senators, including Minority Leader Chuck Schumer (D-NY), “say they delayed the nominees out of concern that the administration is uninterested in pushing ahead with a new tunnel under the Hudson River – and might ultimately decline to provide funding for [the] project…”

(Ed. Note: The cost of the tunnel project is estimated at $12.9 billion. Assuming a federal share of 50 percent of the cost (which is what Schumer and the other Senators want), this works out to a ransom demand of almost $2.2 billion per nominee. Pretty steep.) ETW has been extensively covering the Gateway program (the umbrella for a bunch of projects of which the tunnel is the most prominent) – click here for links to all of our articles on the subject.

The Trump Administration has been particularly sluggish when it comes to announcing USDOT nominees bellow the Secretary and Deputy Secretary level. ETW’s Jeff Davis has been tracking the progress of nominations and comparing them to the previous five presidents in a handy chart that is available here.