President-elect Donald Trump is an impatient man. That’s why, shortly after the elections, he floated a plan to skip centuries of precedent and just appoint his cabinet nominees without going through confirmation hearings in the Senate. Never mind that the Constitution specifically says nominations come with the “Advice and Consent” of the Senate.
To be sure, the Constitution also allows what are called “recess appointments”—that is, the president can appoint cabinet member temporarily, while Congress isn’t in session. And for a time, the prospect of recess appointments was the talk of Washington.
Fortunately, a number of Republican senators—though they declare themselves favorable to Trump’s picks—also want to see them vetted. “My attitude about the nominations is that that’s why God made confirmation hearings," GOP Sen. John Kennedy of Louisiana said at the beginning of December. And so, for the moment, it seems like the Senate will take up the various cabinet nominees.
This is a good thing, both as a matter of the moment and as a matter of good governance. The immediate issue is that, while several appointees—Florida Sen. Marco Rubio, for instance—will sail through the Senate easily, others are controversial and would, if confirmed, most likely try to take the federal government into new and divisive territory. I’m thinking, of course, of the prospect of Robert F. Kennedy Jr. as health secretary, despite his outspoken opposition to vaccines and idiosyncratic views on other health matters; Kash Patel as FBI director, with his calls for radical change at the bureau and vows to punish Trump’s opponents; Pete Hegseth as defense secretary, despite questions about his drinking and personal behavior; and Tulsi Gabbard for director of national intelligence, despite the fact that intelligence experts on both sides of the aisle have labeled her as too sympathetic to US adversaries.
Presidents should be able to name people to run federal departments and agencies who reflect their priorities and who will do the job asked of them. But it is also true that these aren’t a president’s agencies—they’re the American people’s, and they’re supposed to work on behalf of and in the name of everyone who lives in this country (and Americans abroad). It is the Senate’s job to make sure appointees will discharge those responsibilities honorably, effectively, and in the best interests of the United States as a whole—and, through confirmation hearings, to give Americans a thorough chance to understand what’s at stake.
While it appears that hearings lie ahead, it’s also clear that President-elect Trump and his team intend to play serious hardball with the confirmation process. For one thing, GOP senators are already girding for potential primary challenges if they vote against or throw obstacles in the way of Trump’s nominees—a threat Trump himself echoed recently when he told reporters that if Republican senators are “unreasonable, if they’re opposing somebody for political reasons or stupid reasons,” then he’d want to see them challenged. The incoming administration is also brandishing the prospect of defamation lawsuits against news outlets that report news or revelations it deems unfavorable to Trump’s picks.
So, one of the big questions for the first few months of this year is whether the Senate can hold true to its traditions, vet the nominees, and—if needed—vote them down. There are certainly signs that individual Republican senators have questions that they want answered: outgoing GOP leader Mitch McConnell, a polio victim as a child, has indicated he would have no patience for attempts by Kennedy to undo FDA approval of the polio vaccine; GOP Sen. Joni Ernst, a combat veteran and sexual assault survivor, has said she wants to hear more from Hegseth on those issues; other Republican senators have also indicated they intend to weigh in.
The dynamic was best summed up recently by Republican Sen. Thom Tillis of North Carolina. “You just can’t be ‘no’ because you want to be ‘no’,” he told Semafor. “You have to be ‘no’ because these questions do not satisfy in my own mind, that this is the right pick. The last time I thumbed through the Constitution, I heard it say ‘advise and consent,’ not ‘bludgeon and confirm.’”