The first stand for the Constitution

How to read the ongoing confirmation showdown

The first big showdown of Trump’s second term is coming into focus. 

On the surface it’s about confirmation for his cabinet nominees. The question, though, isn’t really whether this nominee or that will make it through; it’s whether any constitutional checks will hold against the strongman assault. 

According to scholars who have studied the descent into authoritarianism overseas, the signals sent at the outset of the aspiring autocrat’s tenure carry outsized importance. If constitutional checks quickly fold, allowing the autocrat to get away with ever-more-outlandish moves, the deterioration is likely to accelerate. But if there are early positive signs of constitutional democracy working as it should, that too can have a multiplying effect in the future. Those who held the line — especially if they can get some reward and avoid punishment — can harden their resolve to do so again. Others who are watching can take comfort and inspiration that it’s possible.

To be clear, we’ve had a lot of ugly indicators over the past few weeks, with corporate titans and media figures engaging in various forms of anticipatory obedience. 

But we got a meaningful positive data point yesterday when Matt Gaetz, a former congressman previously investigated for sex trafficking and statutory rape, withdrew his name from consideration for Attorney General. According to reporting, he did so after at least four Senate Republicans made clear that they would not support the nomination.

Just hours later Trump announced a new nominee: former Florida AG Pam Bondi. I’m not going to weigh in on Bondi now — we’re still evaluating what her nomination likely means, more to come — but that’s a bit beside the point.

That’s because Donald Trump has also put forward a set of other nominees — a conspiracy theorist to lead Health and Human Services, a Putin-apologist to lead the Intelligence Community, a TV anchor previously accused of sexual assault to be Secretary of Defense, a pro wrestling executive to be Secretary of Education — that, like Gaetz, go beyond the pale. They’re not just unfit; they are pretty much exactly the kind of obsequiously loyal yes-men that the Framers had in mind when they designed the Senate confirmation process in the first place.¹

For more on this theme, I recommend Ezra Klein’s conversation with Anne Applebaum this week.

There’s another dynamic too. In nominating these candidates, Trump is also attempting to show early dominance over congressional Republicans and potentially the Supreme Court. He’s aiming for an immediate, multi-part showdown with the people who still have the most power to check his agenda. 

Here’s the full test he’s setting up:

1. Will the Senate abdicate from its longstanding constitutional obligation to vet the nominee’s qualifications and ultimately approve or reject them on the merits? 

2. If the Senate rejects — or seems likely to reject — more nominees, will congressional Republicans conspire with Trump to adjourn Congress so he can use “recess appointments” to appoint members of his cabinet without the advice and consent of the Senate? 

3. Will the Supreme Court bless such an extraordinary shift of power from Congress to the presidency? (Note: 10 years ago, the Court sharply curtailed then-President Obama’s power to make recess appointments.) 

If the answer to any of these questions ends up being “yes,” more than anything else it will be a telling — and frightening — indicator of how the guardrails will fare through the Trump Administration.  

The Senate is supposed to consider nominees on the merits

First things first, let’s assume that these nominees all face confirmation hearings and their fate is indeed decided by the U.S. Senate. 

We don’t know where those processes will end — that’s the point, there’s a process for a reason — but we know how they are supposed to go. The relevant Senate oversight committee, traditionally aided by FBI background checks and other vetting, pores over the nominee’s qualifications and background. The nominee is then grilled, in person, on whatever senators want to ask about. 

While the confirmation process is far from perfect — and there are certainly examples of the Senate confirming underqualified candidates — these hearings aren’t just theater. They really matter. It’s a chance for Congress to ask hard questions under oath and to get certain commitments on the record. (For instance, John Kelly firmly opposed Trump’s promise to bring back waterboarding and other forms of torture.)

Historically, most nominees are confirmed — but that’s mostly because presidents tend to pick qualified candidates. 

The Senate, for its part, has jealously guarded its confirmation power, rejecting one or more nominees by every president since at least George H.W. Bush (usually, when it becomes clear the votes aren’t there the nominee withdraws, so most aren’t actually voted down). 

Hopefully, Gaetz withdrawing yesterday shows that this continues to be the case. 

The “recess appointment” gambit, explained

So how could Trump get around the Senate altogether? 

It comes down to Article II, Section 2, Clause 3 of the Constitution:

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

In other words, if the Senate isn’t around to do it, the president can temporarily fill roles without confirmation. 

The thing is, the Supreme Court tightly curtailed Barack Obama’s ability to make recess appointments during any recesses shorter than 10 days back in 2014. Since then, the Senate has basically stopped going out of town long enough to allow it. Even during longer recesses, one senator simply holds a formal gavel-in, gavel-out session every 10 days. 

So, practically speaking, no more recess appointments. They’ve been dead for a decade. 

But that could change if either house of Congress decides to collude with Trump to bring them back: 

Scenario one: Straightforward. Senate Republicans deliberately go on a long recess (for the first time in 10 years!) as a way to acquiesce to Trump without admitting that’s what they’re doing. This would be a totally unprecedented abdication of their constitutional role (literally unprecedented, as in: No Senate in history has ever deliberately removed itself from the confirmation process). 

Scenario two: Much more roundabout. Republicans in the House work with Trump to try to exploit a never-before-used loophole. 

Here’s how it works. If the House and Senate disagree over “the Time of Adjournment,” the Constitution gives the president power to step in and adjourn both houses. So, if Speaker Mike Johnson can get the House to vote for an adjournment, the idea is that Trump could then force the Senate to go on recess against their wishes. 

This is a lot more complicated than you might guess. Not only would basically all House Republicans have to agree to adjourn — their final majority could end up as narrow as two or three votes — but there are real, genuine legal questions about all this. Such as: What constitutes a “Disagreement between them, with Respect to the Time of Adjournment”? Do the House and Senate have to both vote to adjourn but on different dates? Or is one voting to adjourn and the other ignoring that vote sufficient? 

Needless to say, it gets into “constitutional crisis” territory much quicker than you’d guess.

If you want to go into the weeds, I highly recommend Andy Craig’s post for the Cato Institute: On “Disagreement” and the presidential power to adjourn Congress. 

Long and short of it, per Andy, is this: 

[I]f the presidential adjournment power is invoked, it should be recognized as not just a serious, norm-defying abuse of a procedurally valid constitutional power. Instead, it would be unconstitutional. The Senate would have firm grounds to ignore it, and the Supreme Court could reasonably agree. 

Which brings us to the final question…

Does the Supreme Court get involved? 

I’m not going to speculate on what a potential Supreme Court case around this could look like. What matters is simply that Trump is not just testing congressional Republicans, he’s also testing the loyalty of the justices — above all the three he put on the Court. 

A decade ago, Justices Roberts, Alito, and Thomas all expressed strong disapproval of recess appointments, writing in a concurrence (with Antonin Scalia) to warn against:

[Transforming] the recess-appointment power from a tool carefully designed to fill a narrow and specific need into a weapon to be wielded by future Presidents against future Senates… [And that] deferring to the Executive’s untenably broad interpretation of the power is in clear conflict with our precedent and forebodes a diminution of this Court’s role in controversies involving the separation of powers and the structure of government.

Will those three back off that position now that the president will be a Republican, not a Democrat? And will Amy Coney Barrett, Brett Kavanaugh, and Neil Gorsuch show more deference to a power grab by the person who put them on the Court? 

That loyalty, above all, is what Donald Trump is looking to try to prove right out of the gate. 

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Blue Dogs propose Select Committee on Electoral Reform

American politics have been pulled to its extremes by our electoral system — we select our candidates through primaries and then the two parties face off with only one winner in every single race. Winner-take-all at every level. 

No one understands the downsides of this more intuitively than Congress’ few remaining moderates, the rural Democrats and urban Republicans and so on. People like Washington’s Marie Gluesenkamp Perez and Maine’s Jared Golden. 

That’s why, this week, Reps. Gluesenkamp Perez and Golden proposed a select committee to study electoral reform, including proportional representation, fusion voting, and House expansion. 

As reported by NOTUS, the drive for reform is personal: 

“My seat was drawn to be a red seat,” Gluesenkamp Perez told NOTUS in an interview in her office. “I think rural America and the trades have really suffered under single-party control.”

She said that, if members know they have “lifetime tenure,” they don’t have the urgency to do constituent casework and understand where the system is failing communities.

“We need that competition,” she said. “We need that urgency.”

175 political scientists — including names like Daniel Ziblatt, Steven Levitsky, Daron Acemoglu, Larry Diamond, Barbara Walter, Francis Fukuyama, Pippa Norris, Anne-Marie Slaughter, Jane Mansbridge, and Spencer Overton — released an open letter praising the effort: 

The Select Committee would evaluate the evidence and potential for a broad consideration of electoral system changes, such as proportional representation, expanding the size of the U.S. House, instant-runoff voting, fusion voting, open primaries, and independent redistricting commissions. Some of these reforms are already in use in various states and show promise to produce a less hostile politics, a better functioning Congress, and a more representative democracy.

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Join us on Bluesky

Bluesky continues to blow up this week and is fast on its way to becoming the new center of gravity. Protect Democracy put together a starter pack of our democracy experts, advisors, and board members to follow. Check it out: 

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What else we’re tracking: 

• Highly recommend the Boston Review’s post-election discussion on what comes next with some of the smartest people in the space: Maurice Mitchell, Lee Drutman, Doran Schrantz, Sam Rosenfeld, Tabatha Abu El-Haj, and Cerin Lindgrensavage. December 3rd, 4PM Eastern. 

• This week, Beijing jailed dozens of Hong Kong pro-democracy leaders with sentences as long as 10 years. It’s a sad and infuriating milestone, not just for the island’s shredded democratic tradition, but also for the global tide towards authoritarianism. 

• Yesterday, the House advanced a controversial bill to give the Treasury Department unilateral ability to strip nonprofit status — but by a much smaller margin than expected, helping build the case for why the Senate should reject it. David Weinberg explains why this proposal is unnecessary and dangerous. 

• Yesterday, Alaska’s RCV system just barely survived a repeal effort. If you’re wondering how electoral reforms fared at the ballot generally — and what it means for the reform efforts — I recommend this insightful reflection by FairVote’s Meredith Sumpter and Mike Parsons. 

• A new podcast by our friends at More Equitable Democracy — The Future of Our Former Democracy — explores how Northern Ireland's history and politics could offer a blueprint for how the U.S. can build a better electoral system, especially in the wake of rising polarization and political violence.

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What you can do: 

We’re going to start ending the briefing most weeks with a small call-to-action or practical thing you can do to help protect or improve our democracy, curated for you by Anna Dorman. 

This week’s tip: 

Thank an election worker! The election results are one thing, but the process of running a secure, free, accurate, and fair election went about as well as any of us could hope for. 

That doesn’t happen automatically. It’s only thanks to the tireless efforts of thousands of public servants, paid and unpaid. For that hard work, they tend to get a little thanks and lots of hate. So seriously — search “[your county] elections office” and give them a quick call to say thank you. I promise it will make their week! 

I called my county elections office yesterday and talked to an election worker named Amy. Thanks again, Amy! 

1. Seriously. See Alexander Hamilton in Federalist 76 (emphasis mine):

“It will readily be comprehended, that a man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entier branch of the legislature. The possibility of rejection would be a strong motive to care in proposing. The danger to his own reputation, and, in the case of an elective magistrate, to his political existence, from betraying a spirit of favoritism, or an unbecoming pursuit of popularity, to the observation of a body whose opinion would have great weight in forming that of the public, could not fail to operate as a barrier to the one and to the other. He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.”