GARY: Hey. This is Gary (ph) in Los Angeles, California, and there have been such epic time stamps of people doing amazing things around the world that I wanted to share I’m about to go get my hair cut.
SUSAN DAVIS, BYLINE: (Laughter).
GARY: This podcast was recorded at…
TAMARA KEITH, HOST:
1:07 p.m. Eastern time on Monday, Nov. 18.
GARY: Things may have changed by the time you hear this, but my hair will most definitely have changed.
(SOUNDBITE OF THE BIGTOP ORCHESTRA’S “TEETER BOARD: FOLIES BERGERE (MARCH AND TWO-STEP)”)
KEITH: 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 (laughter). Hey there. It’s the NPR POLITICS PODCAST. I’m Tamara Keith. I cover the White House.
CARRIE JOHNSON, BYLINE: I’m Carrie Johnson. I cover the Justice Department.
DAVIS: And I’m Susan Davis. I cover politics.
KEITH: 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?
DAVIS: 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 committees 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.
KEITH: OK, 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.
DAVIS: 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.
JOHNSON: 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. It happened a couple of times, I think, in the Obama administration too. But it’s…
DAVIS: Yes.
JOHNSON: …Just not that common, right?
DAVIS: 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 could probably weigh on this too – probably the most controversial of the nominees so far.
JOHNSON: 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.
KEITH: Yeah. I think that we’re hearing many Republican senators use this phrase – well, these nominees deserve a fair hearing.
DAVIS: 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 a sort of well-qualified nominee. And I think Donald Trump knows that. I think he made these decisions ’cause 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.
KEITH: This could be a loyalty test for Senate Republicans.
DAVIS: 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.
KEITH: A fair hearing could be pretty uncomfortable for some of these nominees.
DAVIS: Yeah, and this – like, 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.
KEITH: One way or another. We’re going to take a quick break, and when we come back, that other scenario.
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.
DAVIS: 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 for it 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.
JOHNSON: You know, the reason why we needed a recess appointment was because, back in the old days, people traveled by horse…
DAVIS: Right.
JOHNSON: …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…
DAVIS: Yes.
JOHNSON: …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, about his desire to do an end run around the Senate in a lot of ways.
DAVIS: 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…
KEITH: Right.
DAVIS: …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 leader 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.
KEITH: Yeah.
JOHNSON: Yeah. In fact, conservative legal scholars have been raising questions about this. There’s a guy, Ed Whelan, at the Ethics and Public Policy Center. He actually sent out an alarm, an alert about this. He says it would eviscerate the role of the Senate to advise and consent, and he really is pushing hard for senators and the House speaker, Mike Johnson, not to allow this to happen.
KEITH: 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.
DAVIS: 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 Whelan 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 adjourn the Senate if the two chambers are in disagreement. Disagreement’s an important word there.
KEITH: So if the House and Senate…
DAVIS: Yeah.
KEITH: …Are in disagreement.
DAVIS: Yes. And there’s – we don’t have to go deep into what the disagreement would mean, but that’s important ’cause 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.
KEITH: Right.
DAVIS: 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 Jan. 3 and him being sworn in on the 20.
KEITH: And it isn’t us just coming up with…
DAVIS: No.
KEITH: …Crazy ideas of things we – oh, let’s see. No, he has actually put it out there.
JOHNSON: 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 going to be a significant challenge were 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 want to 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.
KEITH: Right. I think we’re going to have a lot of conversations about what is…
DAVIS: Potentially, yeah.
KEITH: …A norm and what is the law and what could potentially happen.
DAVIS: 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 along 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.
KEITH: 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.
JOHNSON: I’m Carrie Johnson. I cover the Justice Department.
DAVIS: And I’m Susan Davis. I cover politics.
KEITH: And thank you for listening to the NPR POLITICS PODCAST.
(SOUNDBITE OF THE BIGTOP ORCHESTRA’S “TEETER BOARD: FOLIES BERGERE (MARCH AND TWO-STEP)”)
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