President-elect Donald Trump’s string of controversial nominations continued this past weekend, when he announced his intention to fire his own FBI Director, Chris Wray, and replace him with Kash Patel, a loyalist who shares Trump’s desire to use the bureau as a political tool. If past is prologue, Patel may face an uphill climb to even get the entirety of his own party on board. Trump tried to appoint Patel to various posts on his first term, only to be reportedly told by then-Attorney General Bill Barr that it would happen “over [his] dead body;” then-CIA Director Gina Haspel has also reportedly threatened to resign if Patel was installed under her.
Perhaps the most concerning element of Trump’s nominations, however, is how he may appoint them without the necessary congressional scrutiny.
Less than a week after his election, Trump began calling on congressional leaders to let him make recess appointments. That would mean that if Congress adjourns for more than 10 days, he can appoint his chosen nominees without Senate confirmation. This would be a dangerous and unprecedented move in the history of cabinet appointments.
Sadly, both the incoming Senate Majority Leader John Thune (R-S.D.) and Speaker Mike Johnson (R-La.) have expressed openness to the idea. They should be careful: going down that road will both weaken a key constitutional guardrail in our system and eventually may end with them staring at a collection of Democrats’ own recess appointments.
The Framers intended the President’s cabinet to go through the confirmation process when they gave the Senate the role of providing “advice and consent” over judges, ambassadors, and cabinet members. Recess appointments weren’t even considered during Trump’s first term; Senators met with nominees, and the Senate held public hearings whose purpose was to clarify and develop the agendas of potential cabinet officials.
Read More: The History of the Senate Rejecting Presidential Nominees
A majority of my Democratic colleagues and I voted for eight or more of Trump’s cabinet nominees in 2017. Some nominees, like Defense Secretary Jim Mattis, received near-unanimous support from both Republicans and Democrats.
I plan on taking the same approach this time around. I will meet with Trump’s cabinet nominees to question them, clarify their views, and their ability to lead. I will consider their experience and qualifications by reviewing their record and their hearing testimony. I will vote to confirm qualified nominees whom I believe will advance the best interests of the country. I will oppose them when they don’t measure up.
Some of Trump’s choices, like Senator Marco Rubio for Secretary of State, have significantly different views than I do but are thoughtful, experienced, and capable. Yet many of his other nominees are not just unqualified, but may be downright dangerous. His nominee to serve as Director of National Intelligence has parroted Russian propaganda. The anti-vaccine and anti-science views of his choice to head the Department of Health and Human Services may be the biggest American public health risk since COVID.
Despite these concerns, Republicans will have a three-seat Senate majority come January; even if every Democrat opposes these picks, they should still be confirmable with relative ease. The fact that there is serious discussion of recess appointments at all shows that some of these nominees are so flawed that they will face meaningful opposition from Trump’s own Republican colleagues.
Using the recess appointments loophole to confirm them instead makes a mockery of our constitutional role and will further damage the bipartisan relationships in Congress that remain necessary to pass most legislation in a closely-divided Senate. If that high-minded argument doesn’t work, however, consider this: if Republicans adjourn Congress so Trump can make recess appointments, Democrats will unfortunately be far more likely to do the same at the next opportunity.
Democrats are very familiar with this phenomenon. In 2013, I joined my party in ending the filibuster’s 60-vote threshold for Cabinet and judicial appointments. We came to rue that decision soon after, when Republicans took the White House and the Senate, leaving us with little leverage to block Trump’s extreme judicial nominations. Republicans had no issue with using the new rules to their advantage. What would stop us from doing the same?
Now, after their election wins, Republicans may feel they have plenty of time before the recess appointments bill comes due. Recent history suggests they may have less than they think. Karl Rove trumpeted a “permanent Republican majority” after securing George W. Bush’s re-election in 2004. It promptly gave way to an Obama landslide. Eight years later, Trump took up residence in the White House for the first time, quashing the hope of Obama ushering in a lasting “emerging Democratic majority.” It’s been nearly 40 years since a President was replaced by a member of his same party, and just as long since someone entered the Oval Office without an accompanying Senate majority to approve his nominees. There’s a decent chance that Republicans will be in the same position as my party is in just four years.
So, to my Senate colleagues, especially those on the other side, I say this: we have the constitutional duty of advice and consent for a reason. Use it. If you have the votes to confirm someone, pass them through committee, put them on the Senate floor, and confirm them like we’ve always done. I’ll vote with you if I think they’ll advance the interests of the American people.
If you resort to recess appointments, however, you may well learn to regret it. Possibly, sooner than you think.
