Trump’s Contentious Nominations and the Implications of Recess Appointments
President-elect Donald Trump is back in the spotlight with a nomination strategy that has raised eyebrows across the political spectrum. His plan to replace FBI Director Chris Wray with Kash Patel—a loyal supporter known for his controversial views—has sparked significant discussions. Patel’s nomination may not be smooth sailing; during Trump’s initial term, his attempts to place Patel in various key positions faced fierce pushback from then-Attorney General Bill Barr, who famously remarked that it would occur “over [his] dead body,” and former CIA Director Gina Haspel, who threatened to resign if Patel were appointed.
The most concerning element of Trump’s nomination strategy lies in his ability to circumvent vital congressional oversight.
Shortly after his election, Trump urged congressional leaders to allow him the option of making recess appointments. This tactic would enable him to appoint nominees without requiring Senate confirmation during periods when Congress is adjourned for over ten days. Such a move could set a dangerous precedent for cabinet appointments in the future.
Regrettably, both incoming Senate Majority Leader John Thune (R-S.D.) and Speaker Mike Johnson (R-La.) have indicated openness to this approach. However, they must tread carefully; endorsing this strategy risks eroding a fundamental constitutional safeguard and could open the door for a wave of recess appointments from Democrats in the future.
The Framers of the Constitution established the cabinet confirmation process to ensure that nominees undergo rigorous scrutiny through the Senate’s “advice and consent” role regarding judges, ambassadors, and cabinet members. During Trump’s first term, recess appointments were not considered; nominees participated in discussions with senators, and public hearings provided clarity on their qualifications and agendas.
Read More: The History of the Senate Rejecting Presidential Nominees
Back in 2017, a significant number of my Democratic colleagues and I supported more than eight of Trump’s cabinet nominees, with individuals like Defense Secretary Jim Mattis receiving overwhelming bipartisan support.
This time, I plan to adopt a similar approach. I will meet with Trump’s cabinet nominees to evaluate their experience, grasp their viewpoints, and assess their leadership skills. My voting decisions will be based on their qualifications and insights shared during their hearings. I will back capable nominees who prioritize the nation’s best interests while opposing those who fall short.
Some of Trump’s picks, such as Senator Marco Rubio for Secretary of State, may have differing opinions from mine but still exhibit substantial experience and thoughtfulness. Conversely, several nominees are cause for serious concern; for example, the proposed Director of National Intelligence has been known to echo Russian propaganda, and the nominee for the Department of Health and Human Services has taken an anti-vaccine stance, which poses a significant public health challenge in the aftermath of COVID-19.
Despite these troubling factors, Republicans will enter January with a three-seat majority in the Senate. Even with unanimous Democratic opposition, many of these nominees may still pass confirmation with relative ease. The mere consideration of recess appointments suggests that certain nominees could provoke considerable dissent even within Trump’s own party.
Utilizing recess appointments would not only undermine our constitutional duties but also further strain bipartisan relations in a closely divided Senate. If that reasoning doesn’t resonate, consider this: permitting Trump to utilize recess appointments could easily set a precedent for Democrats to do the same when they regain power.
Democrats are well aware of the implications of this issue. In 2013, I joined my party in removing the 60-vote requirement for cabinet and judicial nominations. We soon regretted that decision when Republicans gained both the White House and the Senate, limiting our ability to contest Trump’s extreme judicial appointments. Republicans took full advantage of the revised rules. So, what’s to stop us from reciprocating?
As Republicans celebrate their electoral successes, they may assume they have plenty of time before the issue of recess appointments comes to the forefront. However, recent history shows that time may not be on their side. Karl Rove once declared a “permanent Republican majority” after George W. Bush’s 2004 re-election, only for it to quickly vanish with an Obama landslide. Eight years later, Trump’s election shattered 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 president entered office without a corresponding Senate majority. Republicans could find themselves in a similarly precarious position in just four years.
I urge my fellow senators, especially those on the other side of the aisle, to remember our constitutional responsibility of providing advice and consent. Let’s engage in this process. If you have the votes to confirm a nominee, take them through committee, bring them to the Senate floor, and confirm them as we have traditionally done. I will support you if I believe they will act in the best interest of the American people.
However, if you opt for recess appointments, you may find yourselves regretting that choice sooner than anticipated.
