Trump’s Controversial Choices and the Perils of Recess Appointments
President-elect Donald Trump is once again making waves with his contentious nomination strategy. Notably, he plans to oust FBI Director Chris Wray and replace him with Kash Patel, a loyal supporter known for his readiness to introduce partisanship into the bureau. Historically, Patel might find it challenging to secure backing even from his own party; during Trump’s first term, his attempts to place Patel in various positions faced strong opposition from then-Attorney General Bill Barr, who allegedly remarked that it would occur “over [his] dead body,” and from former CIA Director Gina Haspel, who threatened to resign if Patel were appointed.
The most concerning element of Trump’s nomination intentions is his inclination to circumvent vital congressional oversight.
Just days after his election, Trump urged congressional leaders to permit him to make recess appointments. This strategy would allow him to appoint individuals without Senate confirmation if Congress were to adjourn for more than ten days. Such a tactic could set a dangerous precedent concerning cabinet appointments.
Unfortunately, both incoming Senate Majority Leader John Thune (R-S.D.) and Speaker Mike Johnson (R-La.) have shown openness to this concept. However, they should tread carefully: endorsing this method could weaken a fundamental constitutional safeguard and may lead to a wave of recess appointments from Democrats in the future.
The Framers established the cabinet confirmation process specifically to guarantee that nominees undergo comprehensive scrutiny through the Senate’s “advice and consent” role concerning judges, ambassadors, and cabinet members. Throughout Trump’s first term, the idea of recess appointments was off the table; nominees interacted with senators, and public hearings clarified their agendas and qualifications.
Explore More: A History of the Senate Rejecting Presidential Nominees
In 2017, a majority of my Democratic colleagues and I backed eight or more of Trump’s cabinet nominees, with figures like Defense Secretary Jim Mattis receiving widespread bipartisan support.
I plan to take a similar approach this time. I intend to meet with Trump’s cabinet nominees to evaluate their qualifications, understand their viewpoints, and assess their leadership abilities. My voting choices will depend on their experience and the insights they provide during their hearings. I will endorse qualified nominees who prioritize the nation’s best interests and oppose those who do not measure up.
Some of Trump’s appointees, such as Senator Marco Rubio for Secretary of State, may have differing opinions from mine but are nonetheless seasoned and thoughtful. Conversely, several nominees raise serious red flags; for instance, the proposed Director of National Intelligence has echoed Russian disinformation, while the nominee for the Department of Health and Human Services has taken an anti-vaccine stance, which poses a considerable public health risk in light of the COVID-19 pandemic.
Despite these troubling concerns, Republicans will maintain a three-seat majority in the Senate starting in January. Even with unified Democratic opposition, many of these nominees could be confirmed with relative ease. The very discussion of recess appointments suggests that some nominees may be so contentious that they could face significant pushback from within Trump’s own party.
Resorting to recess appointments would undermine our constitutional responsibilities and further exacerbate tensions in a closely divided Senate. If that rationale doesn’t resonate, consider this: if Republicans permit Trump to make recess appointments, Democrats could easily replicate this strategy when they regain power.
Democrats are well-acquainted with this issue. In 2013, I joined my party in abolishing the 60-vote threshold for cabinet and judicial nominations. We quickly regretted that choice when Republicans took control of both the White House and the Senate, leaving us with limited means to contest Trump’s controversial judicial appointments. Republicans took full advantage of the new rules. So, what prevents us from doing the same?
As Republicans revel in their electoral successes, they may believe they have ample time before the recess appointments dilemma arises. However, recent history demonstrates that they may not have as much time as they think. Karl Rove once declared a “permanent Republican majority” after George W. Bush’s 2004 re-election, only for it to quickly evaporate in an Obama landslide. Eight years later, Trump’s election dashed hopes for a lasting “emerging Democratic majority.” It has been nearly four decades since a President was succeeded by someone from the same party, and just as long since a new occupant of the Oval Office lacked a corresponding Senate majority. The Republicans could find themselves in a similar situation in just four years.
To my fellow senators, particularly those across the aisle, I implore you to remember our constitutional duty to provide advice and consent. Let’s engage in this process. If you possess 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.
