More on Recess Appointments
Kacper Surdy, known on social media as Ringwiss, at The Bulwark:
Trump’s stated reason for wishing to make recess appointments is that it would take too long for the Senate to confirm the nominations he makes. But that is not a serious concern. Thanks to changes in procedure made by the Senate over time, it is now easier than ever to overcome filibusters, whether actual or merely threatened, on nominations. In Trump’s first term, the Senate confirmed his major cabinet nominations within just a few weeks of his inauguration.
That leaves us with two reasons for which a president might wish to make recess appointments to the cabinet: either (1) to avoid subjecting the nominee to the Senate’s scrutiny, or (2) because the nomination does not have the support of a majority of the Senate.
Under these circumstances, Congress would not be voting for just an ordinary adjournment. Since Trump has overtly declared his wish to make recess appointments, lawmakers now know that a vote to allow the Senate to adjourn for ten days or more would be tantamount to a vote to allow him to make those appointments. If a senator is opposed to one of the nominations that Trump has preannounced, then it’s doubtful that he or she would go along with any proposal to facilitate recess appointments for those nominees.
In fact, we got a potential indication of this last week, when Matt Gaetz withdrew as Trump’s prospective nominee for attorney general, apparently because he was unlikely to be confirmed by the Senate. Rather than push for a recess to appoint Gaetz, Trump merely moved on to his next AG nominee.
In the end, Trump likely concluded that he would have had the same outcome if he forced the Senate to vote on Gaetz or pushed congressional Republicans to adjourn. A defeat was inevitable. It seems likely that Trump and his team will make the same calculations for controversial nominees going forward, too. Absent the pursuit of uncharted legal theories, if four Republican senators and all senators caucusing with the Democrats want a nominee defeated, then that nominee will likely end up defeated.
