The Situation: Advice and Consent Doesn’t Mean Adjourn and Appoint

It was less than a month ago that The Situation contemplated an emerging crisis in the Senate confirmation process for cabinet officers with national security responsibilities.

Far be it from me to declare that this crisis has been averted or successfully navigated. But there has been progress worthy of note.

The crisis developed because of a combination of two related developments: First, the president-elect announced he was nominating for a slew of senior positions with major security responsibilities people who were manifestly unfit for those positions both in terms of their qualifications and in terms of their personal qualities. 

Second, someone hatched a plan to install these people without Senate confirmation, a plan that involved the president adjourning Congress and then using his recess appointment powers to install his cabinet en masse. 

These developments individually gave cause for alarm. On their own terms, the cabinet nominees—Matt Gaetz, Tulsi Gabbard, Pete Hegseth, Robert Kennedy Jr.—each offered a unique brand of offense to the agency at the head of which Donald J. Trump proposed to install them. They offered a particularly unusual challenge as a group, moreover. 

As for the procedural shenanigans, they proposed an evisceration of the Senate’s traditional role as a gateway for appointments.

In combination, I found the two developments quite scary. 

But then something happened—something important. I have alluded to it before, but I want to spotlight it here, because many commentators have questioned the vitality of the system of separated power. 

To wit, the Senate began to bestir itself in a fashion that—and I say this at the risk of eating these words soon—looks at least a little bit promising.

The first step in this process was that a conservative lawyer named Ed Whelan blew the whistle on the idea of installing the cabinet by recess appointment, calling it “a crazy scheme” and stating emphatically that House Speaker Mike Johnson should not be “complicit” in it. 

Somehow, the message seems to have reached the Trump transition, because talk of recess appointments—at least en masse recess appointments—basically ceased, and senators began speaking instead about considering and confirming nominees according to the usual process. You know, the one with hearings and questions and votes on nominee fitness? That one.

The next thing that happened was that key Republican senators actually began assessing the quality of these nominees—often not publicly but in a fashion that matters to the transition. That meant that Gaetz went away pretty quickly. And it meant that Hegseth’s nomination has run into serious problems, with Trump alternately making contingency plans for his demise and publicly doubling down on his support of the Fox News weekend host. As of today, Hegseth’s fate is cloudy.

What does this mean for a nominee for director of national intelligence who was chummy with deposed Syrian dictator Bashar al-Assad, who trumpets Russian propaganda, and about whom RT proudly cited ABC News’s reporting that she “has been an avid reader of RT news and continued to follow the Russian site long after Washington censured the network”? What does it mean for a nominee to head the Department of Health and Human Services who doesn’t believe in vaccines? What does it mean for a nominee to serve as ambassador to France who pleaded guilty to felonies and whom Trump earlier pardoned? Or an FBI director who has published an enemies list?

I have no idea. 

It could be that Hegseth and the others will all get confirmed, that Gaetz will prove to have been the sacrificial lamb that every president offers to the Senate in recognition of its power, and that the effect of all of his threats to blow through the advice and consent process will have been merely to bully the Senate into consenting to bad nominees. In this scenario, Trump gets his nominees. The Senate gets a kind of genuflecting to its theoretical power, with the condition that said power not be exerted in the real world. This would be a very bad outcome—one that preserves the forms of the constitutional order without much of its substance. 

But another possibility is that saying “no” to Trump gets a little easier with repetition, especially if different groups of Republican senators are actually the ones saying no. With Gaetz, it was reportedly the new Republican senator from Utah, John Curtis, along with—of all people—Mitch McConnell who put their feet down and made clear to the transition that this nominee was a nonstarter. With Hegseth, all eyes are on Sen. Joni Ernst (R-Iowa). 

One can go bankrupt really fast betting on the emergence of a coalition of the vertebrates among Republican senators vis a vis Trump. And I’m certainly not going to lay a bet on such a thing here. I will say, however, that just as the ability to say no on the part of senators atrophies with nonuse, the muscles strengthen with use. And we have just seen use.

Indeed, the Senate has just given a demonstration, two demonstrations really, of its ability—quietly and without anyone making public statements—to bend the administration back toward more normalish behavior. I don’t want to overstate the magnitude of this accomplishment. But it is directionally promising, and it’s something to build on—if, that is, Republican senators want to build on it. 

All of which raises the question of whether they do—a matter about which speculation is useless. We will find out soon enough. 

Trump has put Republican senators with a conscience in a genuinely unenviable position. In an era of intense partisanship, he has made into a test of their party loyalty their willingness to publicly vote to confirm a slate of dangerously inappropriate scoundrels to positions of high authority and trust. To refuse to do it at scale would deal a severe blow to Trump’s presidency at an early date, making him a kind of lame duck just at his highest moment of triumphant return. And it would court certain retaliation from a man known for his propensity to retaliate. It would, in short, take real guts. And guts are often the first things to vanish when legislators face collective active problems. 

On the other hand, to confirm this slate of nominees—at least for some senators—will be hard to square with their oaths of office, not to mention the dignity of their stations in American government.

How individual senators handle that conflict with respect to individual votes on individual nominees will say a great deal about whether and to what extent one can count on the separation of powers this time around to moderate Trump’s worst impulses.

The Situation continues tomorrow.