Giving Up the Senate Confirmation Process? Unthinkable

By Al From

I think we now know what Donald Trump meant when he said that he would be a dictator on day one and that his administration would seek retribution against his political adversaries, whom he called the enemy within.

He has made clear that he intends to use the appointment of members of his cabinet to destroy the constitutionally mandated separation of powers, the most important safeguard against dictatorial rule, written into our constitution.

Think about the cabinet appointments Trump has announced in the last several days.

Pete Hegseth, a Fox TV host for Secretary of Defense

• On active duty with the National Guard, Hegseth was one of 12 national guardsmen removed from duty for guarding the Capitol on January 6, 2021. Vetting by law enforcement raised concerns that they might have ties to extremist groups.

Tulsi Gabbard for Director of National Intelligence

•  Gabbard has been an apologist for Syria’s President Assad and Russian Dictator Putin. She often spouts the Kremlin’s talking points and took Putin’s side, blaming the U.S. and NATO for Russia’s invasion of Ukraine. Earlier this year, Gabbard revealed that she had been put on a domestic terrorism watch list.

Matt Gaetz for Attorney General

• For three years, Gaetz has been under investigation by the House Ethics Committee for, according to USA Today, “allegations of sexual misconduct, illicit drug use, accepting ‘improper gifts’ and giving out special favors to individuals with whom he had relationships.” The report on that investigation was scheduled to be released today (Friday). On Wednesday, Gaetz abruptly resigned from the House to head off that release. Gaetz has made enemies in his own party because he led the successful effort to oust Kevin McCarthy from the Speakership.

Robert F. Kennedy Jr. for Secretary of Health and Human Services

• The anti-science, anti-vaxxer fits the same mold.

None of these candidates would pass serious vetting in a normal transition. According to news reports, Gaetz was picked on a flight accompanying Trump from Washington to Florida. Susie Wiles, Trump’s pick for White House Chief of Staff, was in the next cabin completely unaware.

None of these choices are remotely qualified. They were picked because of their unbending loyalty to Trump and because they share Trump’s desire to seek retribution against political enemies. 

How he handles the confirmation process will be a real test for new Senate Majority Leader John Thune. How Thune meets that test will determine whether one of the fundamental elements of our constitutional democracy — separation of powers (checks and balances) - can survive a second Trump administration. The constitutional responsibility of the Senate to advise and consent on presidential appointments is the body’s most crucial prerogative in our democratic system.

I worked 10 years in the Senate, including a stint on a committee chaired by the great constitutionalist Senator Sam Ervin of Watergate fame. It is inconceivable that any of the senators I worked with — whether Democrat or Republican — would have even considered giving up a senatorial prerogative like the confirmation process, no matter who the president was or what he asked. When President Nixon tried to impound funds appropriated by Congress, a bipartisan group of senators, including the late Republican Senator Bill Brock, saw Nixon’s actions as an attempt to undermine the congressional power of the purse. They enacted the Budget Reform and Impoundment Control Act to stop him.

Under ordinary circumstances, the Senate would not confirm these three candidates. When the president submits the nominations, the Senate committees routinely order FBI investigations of their background before they schedule hearings on the nominations. It’s likely that after the FBI investigations came back, the committees would not even schedule hearings, and the president would have to withdraw their nominations.

But nothing with Donald Trump is ordinary. Last weekend, Trump asked the three candidates for majority leader to agree to surrender the constitutionally required confirmation process and allow him to make cabinet appointments on his own without congressional approval. Recess Appointments is a procedure enabling officials appointed by the president to serve for a period of time without confirmation if the appointment is made when the Senate is in recess. Under Recess Appointments, there is no check on who the president puts in constitutional offices.

What the Senate does with these nominees will tell us whether we have a democracy going forward. To me, it would be bad for our country if the Republicans in the Senate voted to confirm them. But, at least, in that case, the Senators would have to cast votes on the record, and our system continues. If they so choose, the voters could hold them accountable at the next election. But if the Senate does what Trump asks and adjourns so he can make recess appointments, it would be the end of the separation of powers and a severe blow to democracy.

For two years now, I have said repeatedly that I believe Donald Trump is an existential threat to democracy. I believe that is true and that it is up to the other two branches of government — the Supreme Court and the Congress — to save our precious constitutional republic. That is what our founders intended when they wrote the principle of the separation of powers into the Constitution.

The Supreme Court is falling short. It has shown a willingness to bend to the will of the president in its recent decision on presidential immunity.

The Senate is our last best hope. If the Senate abdicates its responsibility to advise and consent on presidential appointments, the greatest fears of our founding fathers will have been realized — and the future of the greatest democratic experiment in the history of the world will be in grave jeopardy.