Trump’s Controversial Nominations and the Dangers of Recess Appointments

President-elect Donald Trump is once again making waves with his nomination strategy, which has raised eyebrows, particularly with his intention to remove FBI Director Chris Wray and appoint Kash Patel, a loyal supporter known for his controversial views on politicizing the FBI. Patel’s past attempts to secure roles during Trump’s initial term were met with resistance from powerful figures like former Attorney General Bill Barr, who famously stated that it would happen “over [his] dead body,” and former CIA Director Gina Haspel, who threatened to resign if Patel were to be appointed.

What’s perhaps most concerning about Trump’s nomination plans is his potential to sidestep vital congressional oversight.

Just days after his election, Trump reached out to congressional leaders, advocating for the ability to make recess appointments. This maneuver would allow him to appoint nominees without Senate confirmation, provided Congress adjourns for more than ten days. Such a strategy could set a dangerous precedent for how cabinet appointments are handled moving forward.

Regrettably, both incoming Senate Majority Leader John Thune (R-S.D.) and Speaker Mike Johnson (R-La.) have indicated their openness to this approach. However, they should tread carefully: supporting this tactic may weaken a fundamental constitutional safeguard and could ultimately lead to a flood of recess appointments from future Democratic administrations.

The Framers of the Constitution established the cabinet confirmation process to ensure nominees undergo thorough scrutiny through the Senate’s “advice and consent” function. During Trump’s first term, recess appointments were not considered; nominees engaged in discussions with senators, and public hearings were held to clarify their qualifications and proposed agendas.

Read More: The History of the Senate Rejecting Presidential Nominees

In 2017, many of my Democratic colleagues and I supported several of Trump’s cabinet nominees, with individuals like Defense Secretary Jim Mattis receiving overwhelming bipartisan support.

I plan to adopt a similar approach this time around. I intend to meet with Trump’s cabinet nominees to assess their qualifications, understand their perspectives, and evaluate their leadership skills. My voting decisions will be based on their experience and insights shared during their hearings. I will support nominees who demonstrate competence and align with the nation’s best interests, while opposing those who do not meet these standards.

Some of Trump’s candidates, such as Senator Marco Rubio for Secretary of State, may have differing opinions from mine but are nonetheless experienced and thoughtful. Conversely, certain nominations raise significant red flags; for instance, 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, posing a serious public health risk in the aftermath of COVID-19.

Despite these troubling issues, Republicans are expected to hold a slim three-seat majority in the Senate starting in January. Even with unanimous Democratic opposition, many of these nominees might still be confirmed with relative ease. The mere mention of recess appointments suggests that some nominees could be so contentious that they might face significant pushback from within Trump’s own party.

Resorting to recess appointments would undermine our constitutional responsibilities and further strain bipartisan relationships in a closely divided Senate. If that rationale doesn’t resonate, consider this: if Republicans permit Trump to make recess appointments, Democrats could easily follow suit the next time they have the opportunity.

Democrats are all too familiar with this dilemma. Back in 2013, I joined my party in abolishing the 60-vote threshold for cabinet and judicial nominations. We quickly came to regret that decision when Republicans took control of both the White House and the Senate, leaving us with limited options to contest Trump’s extreme judicial nominations. Republicans capitalized on the new rules. So, what’s to prevent us from doing the same?

As Republicans celebrate their electoral achievements, they may feel confident about their timeline before recess appointments become a pressing issue. However, history shows that time may not be on their side. Karl Rove once heralded a “permanent Republican majority” after George W. Bush’s 2004 re-election, only for it to quickly evaporate during an Obama landslide. Eight years later, Trump’s election dashed the dreams 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 took office without a corresponding Senate majority. The Republicans could find themselves in a similar situation in just four years.

To my fellow senators, especially those on the other side of the aisle, I urge you to remember our constitutional duty of advice and consent. Let’s utilize this process effectively. 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 serve the best interests of the American people.

However, if you opt for recess appointments, you may find yourselves regretting that decision sooner than anticipated.