The NPR Politics Podcast - Trump's Next Challenge: Confirming Cabinet Nominees

Episode Date: November 18, 2024

President-elect Donald Trump has suggested he could rely on recess appointments to get his preferred cabinet picks into position if the Senate won't confirm them. But, some conservative legal scholars argue there's another — and untested — way around the Senate's constitutional role to provide "advice and consent" and it may lead to a clash.This episode: senior White House correspondent Tamara Keith, national justice correspondent Carrie Johnson, and political correspondent Susan Davis.The podcast is produced by Jeongyoon Han and Kelli Wessinger, and edited by Casey Morell. Our executive producer is Muthoni Muturi.Listen to every episode of the NPR Politics Podcast sponsor-free, unlock access to bonus episodes with more from the NPR Politics team, and support public media when you sign up for The NPR Politics Podcast+ at plus.npr.org/politics.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

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This podcast was recorded at 1 0 7 PM Eastern time on Monday, November 18th. Things may have changed by the time you hear this, but my hair will most definitely have changed. Gary, did you take the 405 or the 101? A good haircut can make it a good day. So I hope Gary had a good haircut and is having a good day. Hey there, it's the NPR Politics Podcast. I'm Tamara Keith. I cover the White House. I'm Carrie Johnson. I cover the Justice Department. And I'm Tamara Keith. I cover the White House. I'm Carrie Johnson. I cover the Justice Department. And I'm Susan Davis. I cover politics. Today on the show, an incoming challenge for

President-elect Trump, getting his cabinet secretaries confirmed. He has proposed a path that could set up a full-on constitutional clash with Congress. And we'll get to that. But Sue, let's do a little high school civics here. If someone has been nominated to be a cabinet secretary, what happens next? Well, that nomination goes to the Senate, which by the Constitution has the advise and consent power to basically vet these nominees and either confirm them or reject them. The nominees would go to the Senate and go through the Committee of Jurisdiction. So the Secretary of State would go to Senate Foreign Relations. The Secretary of Treasury would go to Senate

Finance. And it's the committee's job to vet them. This often requires, especially for nominees in the national security realm, background checks that are often led by the FBI that will give the committee's reports. These are not made public, but this is information for senators to have. Any number of information about their tax history, I mean, it is a very thorough process. The Senate wants to know everything. And then the committee can report that nomination to the full Senate, either favorably or unfavorably, and it gets an up or down vote. Now, cabinet nominees used to be able to be filibustered. The Senate has since changed those rules. So these days, you only need a simple majority.

And with Republicans in control of the Senate, they also have JD Vance in the case of a tie. Okay, so that's how it works. And at least some of the people who president-elect Trump has nominated, in theory, they won't have trouble getting confirmed. Sure. I think that would put I would put in that bucket people like Marco Rubio, generally speaking, anytime a senator has been nominated to the cabinet, they kind of sail through. They've kind of already been vetted in their colleagues' eyes. And this time around, I think governors, Doug Burgum, Kristi Noem, they tend to also have a pretty easy time getting nominated.

Obviously, right now, there's a lot of focus on what I would call a grand slam of controversial nominees. That would be Pete Hegseth to Defense Secretary, former Republican Congressman Matt Gaetz to be the Attorney General, former Democratic Congresswoman Tulsi Gabbard to be the Director of National Intelligence, and Robert F. Kennedy Jr., the Democrat turned independent presidential candidate to be the health and human services secretary. And I

think it's fair to say all four of these nominees face a pretty uphill battle in the Senate. It doesn't happen often, but there are times when people go through this process and they just come up short. I'm thinking, for instance, in the Clinton years, a couple of his attorneys general actually backed out from the process after some problems were discovered with their paperwork, paying undocumented people to work as nannies or other work around the house had happened a couple of times, I think in the Obama administration too. But it's just not that common, right? Yes. It's not that common, although I think that every president has somebody fail. And

I would say this, the way that this normally happens is if it doesn't seem like a nominee is going to be able to pass on the floor of the Senate, the Senate likes to spare the president that defeat. So oftentimes, this will happen before a nominee even gets to the Senate confirmation hearing process and certainly before it gets to the floor for a vote. What I think is different this time is Donald Trump doesn't share those same presidential inclinations. He seems quite interested in having a potential confrontation with the Senate and is already very publicly putting pressure on the new Senate leader, John Thune of South Dakota,

to be like, you got to do everything you can do to get these nominations through, up to and including Matt Gaetz, who I think, and Carrie Caprelli-Wei on this too, probably the most controversial of the nominees so far. You know, Sue, I was at the Federalist Society Conference for a couple of days last week, the very conservative legal group, and I approached many people who had worked in the government and maybe will work in the government again, people with big jobs. And I asked them about Matt Gaetz. Some of them shook their heads and walked away.

Others said, it's not even Thanksgiving yet. Let's see what happens. Yeah, I think that we're hearing many Republican senators use this phrase, well, these nominees deserve a fair hearing. And I do think that is the case for the most part, especially in a post filibuster world. These are party line loyalty votes and Donald Trump just won big in the election. Republicans have taken control of the Senate. They've narrowly held their majority. Donald Trump sees himself as having a mandate and there's not a lot of political will within the party right now

to go against the president. What has that ever gotten any Republican ever? But these are serious jobs that these people have been nominated for. And they fall far outside the realm of what I would consider a typical or sort of well-qualified nominee. And I think Donald Trump knows that. I think he made these decisions because these are his loyalists. He wants these people to be there. And we just don't know yet how much pressure the Senate Republican conference is going to be able to withstand if a popular president, certainly popular amongst Republicans, is telling them, shut up and vote yes. This could be a loyalty test for Senate Republicans. Absolutely. I think Donald Trump is making that very plain that he sees this as a loyalty

test. And also, Democrats can't ultimately block these nominees, but they can slow it down. And I imagine for some element of these, they certainly will like to slow walk them. But in the end, this is going to fall on Republican senators. There's 53 Republican senators, and it's really their burden to decide if Donald Trump gets his cabinet filled or not. A fair hearing could be pretty uncomfortable for some of these nominees. Yeah. And this will stretch a little beyond the bounds of my expertise. But if you look at someone like Matt Gaetz, who is still currently potentially dealing with ethics issues on Capitol Hill, the Ethics Committee is still debating whether or not

to release a report about activities that he's done outside of the scope of Congress. These are sometimes things you might not want to be asked about on live national television and under oath. And so they have to have a certain amount of confidence that Matt Gaetz is ultimately going to be able to get confirmed one way or another if they're going to put him and the president through that process. One way or another, we're going to take a quick break. And when we come back, that other scenario. You care about what's happening in the world. Let State of the World from NPR keep you informed. Each day we transport you to a different point on the globe

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No paywalls, no profits, no nonsense. Download it in your app store today. And we're back. And Sue, there's the normal time-honored way to fill out a cabinet through the confirmation process. And then there's the harder way by using something called a recess appointment. It's something that Trump floated in a truth social post and demanded that prospective Senate leaders agree to. So explain this whole recess appointment thing. Recess appointments up until about a decade ago were actually fairly common and presidents would rely on them. I think I would consider it for sort

of second tier nominations, a lot of staff level, because the Senate does move slow and presidents have used this tool in the past. So that's not necessarily unusual. What fundamentally changed the modern Senate was there was a 2014 Supreme Court ruling. This court essentially ruled that the Senate would have to be gone for a minimum of 10 days in order to be considered a long enough period of recess in order to allow the president to make that appointment. And that is, as I'm sure you've both seen at times on C-SPAN ever since then, the Senate comes into session about every three days, especially over August when they're technically out of town, and they do something called a pro forma session. And that is a session in which no business is conducted, but because

the Senate has gone into session that day, it would restart that 10-day clock again, effectively blocking any president's ability to do a recess appointment. You know, the reason why we needed a recess appointment was because back in the old days, people traveled by horse. And it was really hard to get to Washington and take these votes. And so that is certainly not the case now. That is certainly not the case in 2014 when the Obama administration tried this and the Supreme Court said what it said about 10 days. And yet the president-elect, Donald Trump, is really staking a bold claim here before

even the inauguration that has desired to do an end runner on the Senate in a lot of ways. And he's not wrong. I mean, if the Senate were to decide to go into recess for a minimum of 10 days, so some element of time longer than that, it would open a legal pathway for Donald Trump to get any number of... And there's no limits to who or how many he can confirm in a recess appointment. And I do think if you're looking at the balance of power here, all three of the candidates for Senate Republican leaders said publicly before that vote that they would keep a recess appointment option on the table. But think about what that really means, especially

in terms of power. It basically would be the Senate just ceding that entire advice and consent process to the president. Yeah. In fact, conservative legal scholars have been raising questions about this. There's a guy, Ed Whalen, at the Ethics and Public Policy Center. He actually sent out an alarm and alert about this. He says it would eviscerate the role of the Senate to advising consent.

And he really is pushing hard for senators and the House Speaker, Mike Johnson, not to allow this to happen. Danielle Pletka And this is a small point, but in the past, you used to be able to filibuster cabinet appointments. And so they needed 60 votes to overcome that filibuster. That use of the filibuster doesn't exist anymore. So the bar to get confirmed is lower now. Lauren Henry It's just a simple majority.

So that whoever controls the Senate should in theory be able to pass their own nominees. Now, that's the quote unquote normal recess appointment scenario. I think the scenario that Whalen and other conservatives have started circulating and I think raising enough questions that people like myself and our colleague Barbara Sprunt spent a lot of time talking to congressional scholars, parliamentary scholars, is sort of this third option is recess by force. Now, the Senate can always vote to go into a recess. It would probably be a bit of a fight, but the Senate could agree to the terms and go without a fight. I think this third scenario is, does the Senate put up a fight if Donald Trump tries to force

them into adjournment, into a recess? And the Constitution does give the power to the president to both convene and adjour give the power to the president to both convene and adjourn the Senate if the two chambers are in disagreement. Disagreement's an important word there. So if the House and Senate are in disagreement. Yes. And there's, we don't have to go deep into what the disagreement would mean, but that's important because it's constitutional language. And we should note the president has invoked the power to convene Congress. There is precedent for that, not in the modern

era, but it's happened before. The president has never tried to adjourn Congress before. So if that were to come to pass, and we do not know if it would, but frankly, we're staring a little bit into the abyss there. We don't have precedent for it. The congressional and legal scholars and parliamentary scholars we spoke to were in disagreement amongst themselves whether it could even happen, whether it would be subjected to court challenge. But I think the point I would make about that is it does tell us something about just how far Donald Trump might be willing to go, that these are the types of debates we're already trying to investigate

ahead of Congress starting on January 3rd and him being sworn in on the 20th. And it isn't us just coming up with crazy ideas of things. Oh, let's see. No, he has actually put it out there. He's put it out there and people are hearing it in a way that, you know, in the worst case scenario this could set up a constitutional crisis, right? The president is in conflict with Congress and who gets to decide that question? Who must decide that question? The

Supreme Court must decide that question. And the Supreme Court, as we've talked about a lot on this pod, is not at a moment of high public confidence right now. And so that is gonna be a significant challenge where it come to pass. Moreover, you know, the Supreme Court doesn't have an army or anything. So if the president decides he doesn't wanna do what the court tells him to do, that's another crisis. But we're not there yet, and maybe we'll never get there. Right. I think we're going to have a lot of conversations about what is a norm and what is the law and what could potentially happen. And then I would just note too, this is also a new era in the Senate. Mitch McConnell is no longer the leader.

John Thune won a leadership election. He's the first Republican to lead the Senate in 18 years. That's not named Mitch McConnell. And he's kind of untested. And his first major test is to go up against a president that he is not known to be a loyalist of. He backed Tim Scott in the Republican primary. They seem to get a long fine but he's certainly not seen as a lackey for Donald Trump and he's going to be pressed between a popular president within his party and the prerogatives of the Senate and we just don't have a lot to go by on how he's going to conduct himself, although it's worth noting that he has basically studied as an apprentice of Mitch McConnell for the past several years.

All right. Well, we are going to leave it there today. We will be back in your feeds tomorrow. I'm Tamara Keith. I cover the White House. I'm Kerry Johnson. I cover the Justice Department. And I'm Susan Davis. I cover politics. And thank you for listening to the NPR Politics Podcast. podcast. From your car radio to your smart speaker, NPR meets you where you are in a lot of different ways. Now we're in your pocket.

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