Trump’s Controversial Nomination Tactics and the Perils of Recess Appointments
President-elect Donald Trump is back in the spotlight with his latest nomination approach, which features plans to oust FBI Director Chris Wray and replace him with Kash Patel, a close ally known for his willingness to inject politics into the bureau’s operations. Historically, Patel has faced significant resistance, even from within his own party; during Trump’s first term, he encountered strong opposition from then-Attorney General Bill Barr, who reportedly stated it would only happen “over [his] dead body,” as well as from former CIA Director Gina Haspel, who threatened to resign if Patel were appointed.
What raises the most concern about Trump’s nomination strategy is his potential to sidestep crucial congressional oversight.
Just days after his election victory, Trump pressed congressional leaders to permit him to make recess appointments. This maneuver would allow him to install his nominees without the Senate’s approval if Congress were to be in recess for more than ten days. Such a practice could establish a troubling precedent for future cabinet appointments.
Regrettably, both incoming Senate Majority Leader John Thune (R-S.D.) and Speaker Mike Johnson (R-La.) have shown a willingness to consider this option. Nonetheless, they should exercise caution: endorsing this method could erode a vital constitutional safeguard and might eventually lead to a wave of recess appointments from Democrats.
The architects of our government established the cabinet confirmation process to ensure nominees undergo comprehensive scrutiny through the Senate’s “advice and consent” role for judges, ambassadors, and cabinet members. During Trump’s first term, recess appointments were not even on the agenda; nominees participated in discussions with senators, and public hearings were conducted to clarify their plans and qualifications.
Read More: The History of the Senate Rejecting Presidential Nominees
In 2017, the majority of my Democratic colleagues and I supported eight or more of Trump’s cabinet nominees, with individuals like Defense Secretary Jim Mattis receiving near-unanimous bipartisan approval.
I plan to take a similar approach this time. I intend to meet with Trump’s cabinet nominees to evaluate their qualifications, gain insights into their views, and assess their leadership abilities. My voting choices will be based on their experience and the information they present during their hearings. I will back capable nominees who prioritize the nation’s best interests while opposing those who do not meet that standard.
While some of Trump’s nominees, such as Senator Marco Rubio for Secretary of State, may have differing perspectives from mine, they nonetheless bring valuable experience and thoughtfulness to the table. Conversely, certain nominees raise significant red flags; for example, the proposed Director of National Intelligence has echoed Russian propaganda, and the anti-vaccine stance of the nominee for the Department of Health and Human Services poses a serious public health risk in light of COVID-19.
Despite these troubling issues, Republicans will hold a three-seat advantage in the Senate starting in January. Thus, even with unanimous Democratic opposition, many of these nominees could still be confirmed fairly easily. The mere discussion of recess appointments suggests that some nominees may be so contentious that they could face significant pushback from within Trump’s own ranks.
Turning to recess appointments would undermine our constitutional responsibilities and further strain bipartisan relations in an already divided Senate. If that reasoning doesn’t resonate, consider this: if Republicans permit Trump to make recess appointments, Democrats could readily do the same when they have the opportunity.
Democrats are all too familiar with this dilemma. In 2013, I joined my party in eliminating the 60-vote requirement for cabinet and judicial nominations. We quickly regretted that decision when Republicans took control of both the White House and the Senate, leaving us with limited power to contest Trump’s radical judicial picks. Republicans capitalized on the new rules without hesitation. So, what is to stop us from doing the same?
As Republicans celebrate their electoral successes, they may believe they have plenty of time before the issue of recess appointments emerges. However, recent history suggests that time may not be on their side. Karl Rove famously declared a “permanent Republican majority” after George W. Bush’s 2004 re-election, only for it to rapidly evaporate with an Obama landslide. Eight years later, Trump’s election shattered hopes for a lasting “emerging Democratic majority.” It has been nearly forty years since a President smoothly transitioned to a successor from the same party, and just as long since a new president took office without a corresponding Senate majority. Republicans could find themselves in a similarly precarious position in just a few short years.
To my fellow senators, especially those on the other side of the aisle, I urge you to remember our constitutional duty regarding advice and consent. Let’s adhere to this process. If you have the votes to confirm a nominee, bring them through committee, present them on the Senate floor, and confirm them as we have traditionally done. I will support you if I believe they will act in the best interests of the American people.
However, if you opt to rely on recess appointments, you may find yourselves regretting that choice sooner than anticipated.
