Trump’s Controversial Nominations and the Risks of Recess Appointments
President-elect Donald Trump has made headlines once again with his latest controversial nomination strategy, which includes plans to dismiss FBI Director Chris Wray and replace him with Kash Patel, a staunch ally known for his willingness to politicize the bureau. Historically, Patel may struggle to gain full support even from his own party; during Trump’s first term, attempts to place him in various roles were met with fierce resistance from then-Attorney General Bill Barr, who reportedly said it would happen “over [his] dead body,” and from former CIA Director Gina Haspel, who threatened to resign if Patel were appointed.
The most alarming aspect of Trump’s nomination plans is his potential to bypass essential congressional oversight.
Just days following his election, Trump urged congressional leaders to allow him to make recess appointments. This tactic would enable him to appoint his nominees without Senate confirmation if Congress were to adjourn for more than ten days. Such a move would set a troubling precedent in the realm of cabinet appointments.
Unfortunately, both incoming Senate Majority Leader John Thune (R-S.D.) and Speaker Mike Johnson (R-La.) have signaled their willingness to entertain this idea. However, they should proceed with caution: endorsing this approach could undermine a crucial constitutional safeguard and might eventually lead them to face a slew of recess appointments from Democrats.
The Framers designed the cabinet confirmation process precisely to ensure that nominees receive thorough vetting through the Senate’s “advice and consent” role over judges, ambassadors, and cabinet members. During Trump’s first term, recess appointments were not even on the table; nominees engaged in discussions with senators, and public hearings served to clarify their agendas and qualifications.
Read More: The History of the Senate Rejecting Presidential Nominees
In 2017, a majority of my Democratic colleagues and I supported eight or more of Trump’s cabinet nominees, with figures like Defense Secretary Jim Mattis earning near-unanimous bipartisan backing.
I intend to adopt a similar stance this time around. I plan to meet with Trump’s cabinet nominees to assess their qualifications, understand their perspectives, and evaluate their leadership capabilities. My voting decisions will hinge on their experience and the insights they provide during their hearings. I will support competent nominees who align with the nation’s best interests and oppose those who fall short.
Some of Trump’s selections, like Senator Marco Rubio for Secretary of State, may hold differing views from mine but are nevertheless experienced and thoughtful. On the other hand, several nominees raise significant concerns; for instance, the proposed Director of National Intelligence has echoed Russian propaganda, while the anti-vaccine stance of the nominee for the Department of Health and Human Services poses a serious public health threat in the wake of COVID-19.
Despite these alarming issues, Republicans will hold a three-seat majority in the Senate come January. Even with unanimous Democratic opposition, many of these nominees could still be confirmed relatively easily. The mere discussion of recess appointments indicates that some nominees may be so problematic that they could face substantial resistance from within Trump’s own party.
Resorting to recess appointments would undermine our constitutional obligations and further strain bipartisan relationships in a closely divided Senate. If that rationale doesn’t resonate, consider this: if Republicans allow Trump to make recess appointments, Democrats could easily follow suit the next time they have the chance.
Democrats are all too familiar with this issue. Back in 2013, I joined my party in eliminating the 60-vote threshold for cabinet and judicial nominations. We quickly regretted that choice when Republicans gained control of both the White House and the Senate, leaving us with limited power to challenge Trump’s extreme judicial appointments. Republicans took full advantage of the new rules. So, what’s to stop us from doing the same?
Now, as Republicans celebrate their electoral victories, they may believe they have ample time before the recess appointments issue arises. However, recent history reveals that time may not be on their side. Karl Rove once proclaimed a “permanent Republican majority” following George W. Bush’s 2004 re-election, only for it to swiftly dissolve into an Obama landslide. Eight years later, Trump’s election dashed the hopes of 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 predicament in just four years.
To my fellow senators, particularly those across the aisle, I urge you to remember our constitutional duty of advice and consent. Let’s utilize 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 stand by you if I believe they will serve the best interests of the American public.
If you choose to rely on recess appointments, however, you might find yourselves regretting that decision sooner than you expect.
