Matt Gaetz meets the Senate
The Senate GOP has the power, should it choose to exercise it, to block Trump's controversial appointments

In 1968, President Lyndon Johnson nominated his confidante Abe Fortas, an associate justice on the US Supreme Court, to fill the position of Chief Justice, succeeding Earl Warren.
Even though Johnson’s party, the Democrats, held 64 seats in the Senate, the lame duck president’s supporters weren’t able to muster enough votes to overcome opponents, who raised concerns about the Supreme Court’s liberal rulings under Warren along with a variety of issues with the nominee. (Fortas would wind up resigning from the court in 1969 over an ethics issue.)
Johnson couldn’t unilaterally make Fortas the chief justice because of the power spelled out in Section 2 of Article II of the U.S. Constitution: The President “shall nominate, by and with the advice and consent of the Senate, other public ministers and consuls, judges of the supreme court, and all other officers of the United States…”
That “advice and consent” power is about to be tested by President-elect Donald Trump, whose choices of Matt Gaetz as Attorney General, Pete Hegseth as Defense Secretary and Tulsi Gabbard as Director of National Intelligence will almost certainly face determined opposition.
Will GOP senators stand up to the MAGA movement’s embrace of figures such as Gaetz?
The New York Times reported that Rep. Max Miller, an Ohio Republican, “said he and other House Republicans were shocked that Mr. Gaetz had agreed to participate in the Senate confirmation hearings, which involve rigorous and invasive background checks.”
“I’m surprised that Matt would do this to himself,” the Times quoted Miller as saying. “I want to go get a big bag of popcorn and pull up a front-row seat to that show.”
Two new characters
Four months after Richard Nixon took the oath of office as president, he nominated Warren Burger to fill the chief justice spot. But there was still a slot on the court to be filled — the seat that Fortas had just vacated.
Enter Clement Haynsworth and G. Harold Carswell, who are about as little known today as Shakespeare’s Rosencrantz and Guildenstern are to people unfamiliar with “Hamlet.”
The two judges from southern states were Nixon’s first and second nominees for the Fortas seat on the court. Republicans had whittled the Democrats’ contingent in the Senate to 57 seats, but they were unable to withstand the criticism of the Nixon nominees. Both were opposed by civil rights groups who saw them as foes of desegregation.
The third time was the charm. Nixon nominated Harry Blackmun of Minnesota and he was confirmed in a 94-0 vote. Blackmun would go on to write the court’s Roe v. Wade majority opinion.
Mitch McConnell’s analysis
In a fascinating twist, a Republican judgment on the two failed nominees wound up appearing in the pages of the Kentucky Law Journal in 1970 under the byline of A. Mitchell McConnell, Jr., then the chief legislative assistant to Sen. Marlow W. Cook of Kentucky.
McConnell would go on to win a Senate seat in his own right and become the Senate Majority Leader who refused to act on President Barack Obama’s nomination of Merrick Garland to the court.
His law review article began with a quote from the French poet and philosopher, Paul Valery: “All politicians have read history; but one might say they read it only in order to learn from it how to repeat the same calamities all over again.”
In McConnell’s view, the basic opposition to both judges stemmed from ideological differences with liberal senators hostile to candidates from the south, but were dressed up as arguments that they “fell below certain standards of ‘fitness’” for the court.
In Haynsworth’s case, McConnell argued, the ethics issues raised by opponents were bogus. But he conceded the Carswell nomination was different:
“Many were troubled at the outset of the hearings about reports of a ‘white supremacy’ speech Carswell had made as a youthful candidate for the legislature in Georgia in 1948, and later by allegations that he had supported efforts to convert a previously all-white golf public golf course to an all-white private club in 1956 thus circumventing Supreme Court rulings.”
But the “real issue” McConnell cited was Carswell’s undistinguished record as a judge. His rulings were frequently reversed by higher courts and “in the area of achievement, he was totally lacking. He had no publications, his opinions were rarely cited by other judges in their opinions, and no expertise in any area of the law was revealed.”
Carswell’s poor record was summed up in an unintentionally funny quote from Sen. Roman Hruska: “Even if he was mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance? We can’t have all Brandeises and Cardozos and Frankfurters and stuff like that there.”
“Even if he was mediocre, there are a lot of mediocre judges and people and lawyers.” — Sen. Roman Hruska
A big difference
There is one big difference between the 1960s and 1970s and the politics of today. In 2013, Senate Majority Leader Harry Reid killed the ability of the minority to filibuster most presidential nominees (except for the Supreme Court).
That meant cabinet officials and lower-level federal judges could be approved with 51, rather than 60 votes. In 2017, with Republicans in control, McConnell got rid of the filibuster for Supreme Court justices, enabling Trump’s three nominees to succeed without the required support of Democrats.
In the new Congress, Republicans are expected to control 53 seats, enough to confirm presidential appointments on their own if they can avoid more than a couple of defections.
But, back in his 1970 law review article, McConnell wrote that, “Some good, however, has come from this period. Senatorial assertion against an all-powerful Executive, whoever he may be, whether it is in foreign affairs or in Supreme Court appointments, is healthy for the country. Such assertions help restore the constitutional checks and balances between our branches of government, thereby helping to preserve our institutions and maximize our freedom.”
McConnell, who stepped down as minority leader and has endured withering criticism from Trump, will have to decide when he votes on Gaetz, Hegseth and Gabbard whether to stand up “against an all-powerful Executive.”
So will his successor as the Republican leader in the Senate, John Thune, who was elected this week by his colleagues in a secret ballot despite the opposition of many in the MAGA world.