The double-edged sword in Trump's hands
Trump's talk of recess appointments couldn't save Matt Gaetz's nomination from GOP senators' skepticism; what will it mean for Pete Hegseth, Tulsi Gabbard and RFK Jr.?
In 1961, Louis Martin, a newspaper publisher and political adviser to Democrats, bumped into Thurgood Marshall at a LaGuardia Airport hot dog stand.
“You know, we’re trying to get the president to appoint you to a judgeship,” Martin said, “and we have to have you because you’re Mr. Civil Rights.” Marshall had won Brown v. Board of Education, the Supreme Court case that declared racial segregation in schools unconstitutional, along with other landmark rights cases.
Martin was eager to talk up Marshall’s merits for the new administration of President John F. Kennedy as it sought greater support in the Black community. Yet the lawyer had had some stormy meetings with the president’s brother, Attorney General Robert F. Kennedy. A sticking point was that the Kennedys were offering him a federal district court judgeship, while Marshall refused to consider anything less than a seat on the U.S. Court of Appeals.
After the LaGuardia Airport conversation, “Martin now understood that Marshall was not bluffing,” according to Juan Williams’ book, Thurgood Marshall: American Revolutionary.
Martin went to see RFK. He recalled later, “At first Bobby said, ‘How in the hell are we going to make an NAACP guy an appeals court judge?’ And I said, ‘I don’t give a damn how you could do it, you’ve just got to do it. That’s Mr. Civil Rights. We’ve got a lock on the civil rights thing if we get him.’”
Martin turned up the pressure, getting legal and law enforcement figures to privately endorse Marshall. As Williams wrote, “A week later Bobby Kennedy called Martin and relented: ‘I think we might be able to do something for Thurgood.’”
That “something” was a Court of Appeals appointment sent to the Senate just before it was about to go out of session for the remainder of the year. Marshall became a judge via a “recess appointment”, thanks to Article II, Section 2, Clause 3 of the U.S. 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.”
“That meant,” Williams wrote, “Marshall would be on the bench and acting as a judge before segregationist opposition to his appointment could take shape.” Marshall would eventually serve as U.S. Solicitor General for President Lyndon B. Johnson’s administration and, in 1967, be nominated and confirmed as the first Black justice on the nation’s highest court.
A widely used tool
While the tool of recess appointments is very much back in the news in 2024, the process has been used many times. In 1943, President Franklin D. Roosevelt promoted Dwight D. Eisenhower to general as a recess appointment.
And when Eisenhower himself became president, he made three recess appointments to the Supreme Court: Earl Warren, William J. Brennan and Potter Stewart. All were later confirmed by the Senate.
What stands out now is that President-elect Donald Trump is sending to the Senate an unorthodox set of Cabinet nominees and talking about using recess appointments.
The most controversial of them, former Rep. Matt Gaetz, took his name out of contention for attorney-general today after he and Vice President-elect J.D. Vance met with senators yesterday. Those meetings didn’t dispel concern on Trump’s team that Gaetz couldn’t get the 51 votes needed for confirmation. Other picks who might face tough confirmation battles include Fox News host Pete Hegseth, former Rep. Tulsi Gabbard and former independent presidential candidate Robert F. Kennedy Jr.
Under ordinary circumstances, they are the kind of candidates the Senate would closely scrutinize and quite possibly reject. But as Chris Cillizza wrote, “Donald Trump has repeatedly defied political gravity — and smashed long-held political rules — during his decade of running for president. The question now is whether Trump’s nominees have that same ability —or whether they will be brought low by the Way Washington Works.”
Sensing the resistance his choices might face, Trump floated the idea of recess appointments in a Truth Social post on November 10. “Any Republican Senator seeking the coveted LEADERSHIP position in the United States Senate must agree to Recess Appointments…without which we will not be able to get people confirmed in a timely manner…”
All three candidates for the Senate majority leader role agreed that recess appointments are possible, though the winner of that race, Sen. John Thune, said last week, “My preference is going to be grind it out the way we normally do it.”
It must be clear to Thune that the widespread selection of problematic nominees through recess appointments would deprive the Senate of a fundamental check on the powers of the president.
“Donald Trump is not a monarch,” Kyle Cheney wrote for Politico after Gaetz withdrew. “That’s the unmistakable lesson of the ill-fated nomination of Matt Gaetz for attorney general. Rather than showcasing Trump’s absolute power over his GOP allies, it revealed his limits. The doomed nomination lasted just eight days — and its failure is an unwelcome lesson for the president-elect, who has been projecting invincibility and claiming a historic mandate despite his reed-thin popular vote victory.”
Supreme Court’s ruling
It wasn’t long ago that the use of recess appointments was sharply limited by the US Supreme Court. Acting unanimously in 2014, the court struck down three Obama administration recess appointments to the National Labor Relations Board.
Justice Stephen Breyer delivered the court’s opinion: “When the appointments before us took place, the Senate was in the midst of a 3-day recess. Three days is too short a time to bring a recess within the scope of the Clause. Thus we conclude that the President lacked the power to make the recess appointments…” The court said the recess had to be at least 10 days long to allow for recess appointments.
The framers of the Constitution saw a need for recess appointments given “the Senate’s practice, particularly during the Republic’s early years, of meeting for a single brief session each year,” Breyer noted. But now the Senate meets throughout the year, and even when it takes breaks, arranges for “pro-forma sessions” to avoid going into recess.
In an emergency, the Senate could convene within hours, not the days it would take for senators to travel back to Washington on horseback in the early decades of the 19th century.
In a concurring opinion, Justice Antonin Scalia joined with three other conservative justices to argue for a narrow interpretation of the recess appointment power to limit its use to a much greater degree than Breyer advocated. “The Court’s decision transforms 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,” wrote Scalia, who died in 2016.
Trump’s option
Now Trump is threatening to wield that weapon against a Senate controlled by his own party. Some have suggested he and House Speaker Mike Johnson could even up the ante by using an obscure provision of the Constitution to force the Senate into recess so his appointees can take office. That would make Congress subservient to the executive branch in an alarming way.
In the Washington Post, Edward Whelan, who occupies the Antonin Scalia chair in constitutional studies at the Ethics and Public Policy Center, denounced the forced-adjournment idea.
“The Senate’s power to approve or reject a president’s nominees for Cabinet positions is a fundamental feature of the Constitution’s system of checks and balances. As Alexander Hamilton explained in the Federalist Papers, that power ‘would tend greatly to prevent the appointment of unfit characters,’ including those ‘who had no other merit than that … of possessing the necessary insignificance and pliancy to render them the obsequious instruments of [the president’s] pleasure.’ Almost as if Hamilton were describing Matt Gaetz, Trump’s pick for attorney general.”
All of the talk about recess appointments and forced adjournments may be a tactic to pressure senators into voting for some of the more outlandish Trump nominees.
But if any of it comes to pass, and however the short-term politics plays out, this episode could have consequences for both parties long into the future.
Warning sign
There is a cautionary tale in our recent past. By the time the Supreme Court handed down its ruling on recess appointments on June 26, 2014, the Obama administration’s need to make such appointments had become a lot less urgent.
The reason: On November 13 the previous year, Senate Majority Leader Harry Reid went for the “nuclear option.” His party got rid of the filibuster for all presidential appointments except for the Supreme Court. Thus the NLRB appointees would only need 51 votes, rather than 60, to be confirmed by the Senate. Reid’s move greatly sped up the confirmation of appointees in Obama’s second term.
But Chuck Schumer, who succeeded Reid as the leader of the Senate Democrats, said in January, 2017 that invoking the nuclear option was a mistake. “I argued against it at the time. I said both for Supreme Court and in Cabinet should be 60 because on such important positions there should be some degree of bipartisanship,” Schumer said on CNN. “I won on Supreme Court, lost on Cabinet. But it’s what we have to live with now.”
Three months after Schumer’s remarks, the Republicans, under then-Majority Leader Mitch McConnell, went a step further — they killed the filibuster on Supreme Court nominations. That enabled the Senate to confirm Neil Gorsuch to fill the seat vacated by the death of Antonin Scalia by a 54-45 vote. In 2020, Amy Coney Barrett was confirmed as a Supreme Court justice by a 52-48 vote.
All of which is to say that changes in the rules of Washington can — and do —have big unintended consequences.
If Pete Hegseth is a Problem, What is Lloyd J. Austin III?
https://shorturl.at/wOvjX