Senate Confirms Two Senior USDOT Nominees

November 16, 2017

The U.S. Senate confirmed two more high-level U.S. Department of Transportation appointees this week, bringing the number of Senate-confirmed Trump Administration appointees at USDOT to six (out of a possible 16).

On November 13, the Senate confirmed Derek Kan to be Under Secretary of Transportation for Policy by a vote of 90 to 7. The fact that Kan had a wide level of support was never in doubt – Sen. Bill Nelson (D-FL), the ranking Democrat on the Commerce, Science and Transportation Committee, and other Commerce members expressed support for Kan at his hearing all the way back on June 8 and also voted for him on the Senate floor.

But Minority Leader Chuck Schumer (D-NY) and the other members of the New York and New Jersey delegations refused to let Kan’s nomination be approved by unanimous consent or to otherwise allow a vote to occur without going through the cumbersome cloture process, which takes two full calendar days (at least) of the Senate’s time per nominee. Schumer and the others have been blocking Kan, as well as Federal Railroad Administrator nominee Ron Batory and Assistant Secretary for Governmental Affairs nominee Adam Sullivan, in an attempt to get the Trump Administration to commit to supporting the Obama Administration’s open-ended (but not legally binding) promise to pay 50 percent of the ever-increasing cost of the $30 billion Gateway Program of rail projects in the NY/NJ area.

The “no” votes on Kan’s nomination were Schumer and his Empire State colleague Kristin Gillibrand (D), “no on all Trump nominees” Sens. Bernie Sanders (I-VT) and Elizabeth Warren (D-MA), as well as Jeff Merkley (D-OR), Tom Udall (D-NM), and Ron Wyden (D-OR). New Jersey Senators Cory Booker (D) and Bob Menendez (D) were not present for the vote but would also have voted “no,” bringing the total “no” votes to nine.

After the vote to confirm Kan, Commerce chairman John Thune (R-SD) said:

I hope that last night’s vote will signal to those who are holding other well-qualified nominees to the Department—including the nomination of Ronald Batory to be Administrator of the Federal Railroad Administration and the nomination of Adam Sullivan to be Assistant Secretary of Transportation for Legislative Affairs—over funding for the multibillion dollar Gateway Project in New York and New Jersey that their strategy is misplaced and depriving the Department of the very expertise needed to make progress on Gateway and a host of other critical issues.

The politics of the other senior nominee confirmed this week were much different. Immediately after confirming Kan on Monday evening, the Senate voted to invoke cloture on the nomination of Steven Bradbury to be General Counsel of USDOT by the narrow margin of 50 to 47. This vote was almost completely party-line, except that Joe Manchin (D-WV) voted “aye” and John McCain (R-AZ) and Rand Paul (R-KY) voted “nay.”

Most Democrats justified their “no” votes on the grounds that, as head of the Justice Department’s Office of Legal Counsel in the second term of the George W. Bush Administration, he continued to uphold the legal justification for “enhanced interrogation” of terrorism suspects. This is also why McCain and Paul opposed his nomination.

Nelson had a different line of criticism, focusing on Bradbury’s work in the private sector for a number of transportation clients, particularly airbag manufacturer Takata, whose products have recently featured in one of the largest product recalls in NHTSA history. Nelson said:

For almost 2 years, Mr. Bradbury represented Takata in its response to our Senate Commerce Committee and in the NHTSA investigations. Naturally, when he came in front of our committee, I asked him if he would recuse himself from all matters involving Takata if confirmed to this position because he had represented Takata as their lawyer for 2 years. But listen to what he said. He said that while he will recuse himself from Takata airbag matters, he has not agreed to recuse himself from all Takata matters, such as their pending bankruptcy. Wait a minute. Are you going to recuse yourself from the client you used to represent or not? He in essence said he is not.

Nelson also said that Bradbury had “also represented several airlines in antitrust and consumer proceedings — and I emphasize consumer proceedings. It is hard for me to see how he will put that past representation aside and work for airline consumer protections.”

As mentioned above, Booker and Menendez were absent for the cloture vote, as was John Hoeven (R-ND). Had all three been present and voted with their parties, the vote on cloture would have been 51 to 49.

But the next day, on the actual vote to confirm Bradbury’s nomination, McCain had convinced Manchin to switch his vote. Booker and Menendez were still absent, as was Chris Van Hollen (D-MD). If all three absentees had been present, the vote would have been a 50-50 tie, which would have forced Vice President Pence to abruptly leave his speech across town on tax reform and rush to the Capitol to break a tie or else see the nomination fail. As it was, the nomination was confirmed, 50 to 47.

(Ed. Note: So Bradbury may owe his confirmation to the decision of the Obama Administration’s Justice Department in spring 2015 to indict Menendez on bribery charges, which kept Menendez and possibly his colleague Booker as well from being present for the vote. Interestingly, Menendez was investigated once before by the Justice Department, in 2006, by none ofter than U.S. Attorney for New Jersey Chris Christie. That investigation never went anywhere, but it and other high-profile investigations helped Christie get elected Governor of New Jersey in 2009, where he promptly canceled the proposed ARC mass transit tunnel under the Hudson River, which caused Sen. Frank Lautenberg (D-NJ) to regroup quickly and get Amtrak to propose the Gateway Program, which would include as its centerpiece a different rail tunnel that would serve both Jersey Transit and Amtrak. And it is the unmet cost of Gateway that caused the delay in the Kan, Batory and Sullivan nominations. It’s all connected, my friends.)

The status of all Senate-confirmable USDOT Presidential appointments as of today is shown below.

Confirmed by the Senate (6):

  1. Secretary – confirmed Jan. 31, 2017
  2. Deputy Secretary – confirmed May 6, 2017
  3. Under Secretary for Policy – confirmed Nov. 13, 2017
  4. General Counsel – confirmed Nov. 14, 2017
  5. MARAD Administrator – confirmed Aug. 3, 2017
  6. PHMSA Administrator – confirmed Oct. 5, 2017

Pending on the Senate Executive Calendar (5): 

  1. Assistant Secretary for Research and Technology – on calendar since Nov. 8, 2017
  2. Assistant Secretary for Governmental Affairs – on calendar since June 21, 2017 but held up by Sen. Schumer et al
  3. FHWA Administrator – on calendar since Oct. 25, 2017
  4. FMCSA Administrator – on calendar since Nov. 8, 2017
  5. FRA Administrator – on calendar since Aug. 2, 2017 but held up by Sen. Schumer et al

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 (fixed 5-year term expires in Jan. 2018)
  2. Inspector General (serves during good behavior)

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