The Senate Should Assert Its Power to Block Bad Nominees

National Review Online

Tuesday, November 19, 2024

 

Since Donald Trump won the election on November 5, a number of prominent voices have suggested that, courtesy of his “electoral mandate,” the president-elect should face no scrutiny from Congress whatsoever. Presumably, the details of this claim will evolve over time, but for now it has manifested itself in the insistence — echoed by Trump himself — that the Senate ought to put itself into recess rather than to meaningfully evaluate his executive-branch nominees.

 

Anticipating the criticism that, by conferring upon the U.S. Senate its powerful “advise and consent” role, the Framers of the Constitution had deprived the American presidency of the sole authority “to make the appointments under the federal government,” Alexander Hamilton laid out two persuasive arguments in the pages of Federalist No. 76. “It is not likely,” Hamilton predicted, “that their sanction would often be refused, where there were not special and strong reasons for the refusal.” But on the rare occasions that it happened, it “would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.” The result, Hamilton concluded, would be “stability in the administration” and a reduction in the numbers of those “disadvantages which might attend the absolute power of appointment.”

 

A quarter of a millennium later, these words have proven wise. It is, indeed, relatively rare for the Senate to deny the president his appointments. But it is not unknown. And, when it does occur, it typically benefits the executive every bit as keenly as the legislature that stands in opposition. Now, as then, the core of the American system of government remains the division of power — horizontally, among the three federal branches, and, vertically, between the federal government and the states (or the people). In some circumstances, this arrangement exists to foster a diversity of political opinion. In others — including the appointments process — it reflects the understanding that to increase the number of people who are required to make a decision is to reduce the opportunity for caprice. After all, presidents — even wildly popular presidents — are still liable to err.

 

As we noted last week, the recess idea is, at best, an affront to the Constitution and, at worst, downright illegal. But it is also politically suicidal — both for Donald Trump and for the senators he wishes to render supine. The story of the 2024 presidential election is complex, but, at its core, it is the story of the rejection of the reckless Biden years coupled with a heartfelt desire to return to normalcy. That word — “normalcy” — may seem a peculiar one to apply to Donald Trump, a sui generis figure if there ever was one.

 

And yet, by and large, it is true. When asked to explain their votes, most Americans made it clear that they wanted a strong economy, a peaceful world, a secure border, and the rejection of preposterous social experiments that were contrived in the faculty lounge last week. Very few of those voters — if any at all — hoped for chaos, incompetence, or the mixture of national power with private grievance. Still fewer signed up to outsource their judgment in its entirety to the whim of Donald Trump and his friends. Insofar as Trump’s agenda intersects with their own desires, voters will indulge his foibles. But he ought not to mistake this for a blank check. Joe Biden, who committed that error early on in his tenure, understands its consequences well.

 

Naturally, the vast majority of Trump’s nominees will sail through easily — and deserve to. That a handful will not — and, indeed, that they do not deserve to — is the product of their obvious unsuitability for office. Inevitably, Trump’s apologists will insist loudly that he is being thwarted by wreckers and squishes and enthusiasts for the status quo. But this is so much guff. A nominee who cannot get past a Senate with a 53-47 Republican majority is a nominee who does not deserve to be confirmed. At present, Trump is an object of adulation within a Republican Party that’s eager to express fealty at every available opportunity. That, within this environment, some of Trump’s picks have nevertheless inspired skepticism and grumbling is a testament to their incongruity — and, dare we say, precisely why the Senate was given the power of review in the first instance.

 

Nor is it true, as it is sometimes claimed, that Trump must use extraordinary measures because he has previously been ill-used by the Senate in filling his cabinet. In 2017, ten of Trump’s cabinet nominees were confirmed by the end of February — a faster pace than in Biden’s first months, when he got eight confirmed by Senate Democrats by the end of February. Only one of Trump’s original first-term cabinet nominees, for secretary of labor, was not confirmed.

 

The three selections who deserve to be blocked are Matt Gaetz, who has been nominated for attorney general; Robert F. Kennedy Jr., who has been nominated to head up Health and Human Services; and Tulsi Gabbard, who has been nominated as the new director of national intelligence. None of the three are qualified for their roles, and, if they are approved nevertheless, they will become headaches for the president and liabilities for the Republican Party more broadly. (Those who respond to this by asking “But what about Biden’s appointees?” ought to ask themselves how that worked out for the Democrats.) Matt Gaetz is a self-aggrandizing bomb-thrower who lacks the skill to run the Department of Justice and has neither the temperament nor the guile to push through the reforms that President Trump evidently wishes to see. Robert F. Kennedy Jr. is a habitual crank who has never met a conspiracy theory that he did not like and who belongs nowhere near an agency that controls more than 20 percent of the federal budget. Tulsi Gabbard has spent years as an apologist for Bashar al-Assad and Vladimir Putin, is a former Bernie Sanders-esque socialist, and has given no indication at any point in her political career that she ought to be the one person in America responsible for briefing the president on intelligence. Happily, the United States is home to some of the most intelligent, accomplished, hardworking people in the world — and, contrary to the implications of the media, many of those people are strong supporters of Donald Trump. It would be possible — easy, even — for Trump to find three of them to fill these vital roles and to advance his aims without distraction. To decline to do so is a choice.

 

All of which is to say that Trump’s nascent battle to undermine the power of the Senate is ultimately being waged in behalf of a false premise. Contrary to the allegations of Trump’s acolytes, the brewing fight is not between Trump’s mandate and the Senate’s recalcitrance, but between Trump’s getting 95 percent of what he wants and his being awarded untrammeled control of Washington, D.C. In blocking the bad apples among Trump’s nominees, the Senate must act not to “send a message” or to flex its atrophied muscles or to engage in reflexive oppositional defiance, but to ensure that America gets the sort of sober, focused, resolute governance that will be the prerequisite to the survival of this unified Republican government — and whose absence, if things are permitted to unravel from the start, will serve as its avoidable downfall.