Trump's Next Challenge: Confirming Cabinet Nominees

Summary

Summary of NPR Politics Podcast Episode: "Trump's Next Challenge: Confirming Cabinet Nominees"

Release Date: November 18, 2024
Hosts: Tamara Keith, Kerry Johnson, Susan Davis

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Introduction

In the November 18, 2024 episode of The NPR Politics Podcast, hosts Tamara Keith, Kerry Johnson, and Susan Davis delve into President-elect Donald Trump's upcoming challenge: confirming his Cabinet nominees. The discussion explores the traditional confirmation process, the potential for constitutional clashes, and the implications of Trump's controversial appointment strategies.

The Standard Cabinet Confirmation Process

Susan Davis provides a foundational overview of the constitutional procedure for confirming Cabinet secretaries:

Susan Davis [01:39]: "Well, that nomination goes to the Senate, which by the Constitution has the advising 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..."

She explains that each nominee is assigned to the relevant Senate committee (e.g., Secretary of State to Foreign Relations), where thorough background checks are conducted, often involving the FBI. The process culminates in a committee vote, followed by an up-or-down vote in the full Senate. Notably, the recent elimination of the filibuster for Cabinet appointments means only a simple majority is now required for confirmation.

Trump's Proposed Path and Its Challenges

Tamara Keith points out that while some of Trump's nominees might navigate the confirmation process smoothly, others present significant hurdles:

Tamara Keith [02:34]: "At least some of the people who President elect Trump has nominated, in theory, they won't have trouble getting confirmed."

Susan Davis concurs, noting that nominees with political backgrounds, such as Marco Rubio or governors like Doug Burgum and Kristi Noem, are likely to receive favorable treatment due to their established reputations within the party.

However, the discussion shifts to Trump's more contentious nominees:

Susan Davis [03:24]: "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."

These nominees, characterized by their polarizing profiles, are expected to face substantial opposition in the Senate, complicating Trump's Cabinet confirmation efforts.

Recess Appointments and Constitutional Implications

A significant portion of the episode examines Trump's potential use of recess appointments as an alternative strategy to bypass Senate confirmation:

Susan Davis [08:42]: "Recess appointments up until about a decade ago were actually fairly common... But fundamentally changed by a 2014 Supreme Court ruling requiring a minimum of 10 days recess..."

The hosts discuss how the Supreme Court's decision has rendered traditional recess appointments less feasible, as the Senate typically avoids lengthy recesses by holding pro forma sessions.

Kerry Johnson highlights the potential constitutional crisis stemming from Trump's proposed tactics:

Kerry Johnson [13:00]: "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."

Susan Davis elaborates on the unprecedented nature of such moves:

Susan Davis [12:57]: "Donald Trump is making that very plain that he sees this as a loyalty test... There's no precedent for it. The congressional and legal scholars and parliamentary scholars we spoke to were in disagreement amongst themselves whether it could even happen..."

The discussion underscores the risks of undermining the Senate's advisory and consent role, potentially leading to a power struggle between the executive and legislative branches.

Senate Leadership Dynamics

With Senator John Thune taking over as the new Republican Senate leader, the episode explores his pivotal role in navigating Trump's confirmation strategy:

Susan Davis [13:51]: "John Thune won a leadership election... He's the first Republican to lead the Senate in 18 years that's not named Mitch McConnell."

Thune's approach is characterized by balancing loyalty to Trump with maintaining Senate protocols. His untested leadership style poses uncertainty regarding how he will handle the pressure to confirm controversial nominees versus upholding Senate traditions.

Potential for a Constitutional Crisis

The hosts warn of the looming possibility that aggressive moves by Trump could trigger a constitutional crisis:

Tamara Keith [13:45]: "Right. I think we're going to have a lot of conversations about what is a norm and what is the law and what could potentially happen."

Susan Davis notes the fragile state of consensus among scholars and the Supreme Court's uncertain stance:

Susan Davis [12:10]: "The Constitution does give the power to the president to both convene and adjourn the Senate if the two chambers are in disagreement... We're staring a little bit into the abyss there."

Kerry Johnson adds that the Supreme Court's current lack of high public confidence exacerbates the potential challenges in resolving such a crisis:

Kerry Johnson [13:04]: "This could set up a constitutional crisis... the Supreme Court, as we've talked about a lot on this pod, is not at a moment of high public confidence right now."

Conclusion

As Donald Trump approaches his inauguration, The NPR Politics Podcast episode "Trump's Next Challenge: Confirming Cabinet Nominees" provides an in-depth analysis of the complexities surrounding Cabinet confirmations. The discussion highlights the interplay between presidential authority, Senate procedures, and the broader implications for American constitutional norms. With Trump poised to push the boundaries of traditional confirmation processes, the episode underscores the potential for significant political and legal upheaval in the coming months.

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Notable Quotes:

• Susan Davis [01:39]: "The Senate wants to know everything and then the committee can report that nomination to the full Senate either favorably or unfavorably..."

• Susan Davis [03:24]: "All four of these nominees face a pretty uphill battle in the Senate."

• Susan Davis [05:02]: "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 sort of well qualified nominee."

• Susan Davis [08:42]: "Recess appointments up until about a decade ago were actually fairly common... but this is going to fall on Republican senators."

• Susan Davis [12:10]: "The Constitution does give the power to the president to both convene and adjourn the Senate if the two chambers are in disagreement."

• Kerry Johnson [13:00]: "This could set up a constitutional crisis. The president is in conflict with Congress and who gets to decide that question? The Supreme Court must decide that question."

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This comprehensive summary encapsulates the key discussions and insights from the podcast episode, providing clarity on the challenges President-elect Trump faces in confirming his Cabinet nominees and the broader constitutional implications.

Transcript

[Gary]

This message comes from Carvana. Whether you need weeks to research the perfect car or know exactly what you want, Carvana makes car buying easy. Choose from Carvana's massive inventory using customizable search tools. However you buy, buy your car with Carvana. This message comes from St. Jude Children's Research Hospital. Active and retired federal employees and military staff can support St. Jude during the 2024 Combined Federal Campaign. Visit saintjude.org cfc and donate now using the code 10560 hey, this is Gary.

[Susan Davis]

In Los Angeles, California. And there have been such epic timestamps.

[Tamara Keith]

Of people doing amazing things around the.

[Susan Davis]

World that I wanted to share. I'm about to go get my hair cut.

[Tamara Keith]

This podcast was recorded at 1:07pm Eastern Time on Monday, November 18.

[Susan Davis]

Things may have changed by the time you hear this, but my hair will.

[Tamara Keith]

Most definitely have changed. Gary, did you take the 405 or the 101?

[Susan Davis]

A good haircut can make it a good day. So I hope Gary had a good haircut and is having a good day.

[Tamara Keith]

Hey there, it's the NPR Politics podcast. I'm Tamara Keith. I cover the White House.

[Kerry Johnson]

I'm Kerry Johnson. I cover the Justice Department.

[Susan Davis]

And I'm Susan Davis. I cover politics.

[Tamara 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?

[Susan Davis]

Well, that nomination goes to the Senate, which by the Constitution has the advising 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 committee's 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.

[Tamara Keith]

Okay, 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.

[Susan 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.

[Kerry 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 attorney 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 just not that common. Right?

[Susan 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 gonna 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 seemed 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 gotta do everything you can do to get these nominations through, up to and including Matt Gaetz, who I think and Kerry could probably weigh on this too. Probably the most controversial of the nominees so far.

[Kerry 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.

[Tamara Keith]

Yeah, I think that we're hearing many Republican senators use this phrase, well, these nominees deserve a fair hearing.

[Susan 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 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 sort of well qualified nominee. And I think Donald Trump knows that. I think he made these decisions because 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.

[Tamara Keith]

This could be a loyalty test for Senate Republicans.

[Susan 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.

[Tamara Keith]

A fair hearing could be pretty uncomfortable for some of these nominees.

[Kerry Johnson]

Yeah.

[Susan Davis]

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 put him and the president.

[Tamara Keith]

Through that process one way or another. We're going to take a quick break and when we come back, that other.

[Sarah Levy]

Scenario, support for NPR and the following message come from Betterment, the automated investing and savings app. CEO Sarah Levy shares why they provide tools and technology for retail investors, small businesses and independent investment advisors.

[Unknown]

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[Tamara Keith]

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.

[Susan 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.

[Kerry Johnson]

You know, the reason why we needed a recess appointment was because back in the old days, people traveled by horse 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 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.

[Susan 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 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.

[Kerry Johnson]

Yeah. In fact, conservative legal scholars have been raising questions about this. There's a guy, Ed Whalen 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.

[Tamara 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.

[Susan 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, 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.

[Tamara Keith]

So the House and Senate are in disagreement.

[Susan Davis]

Yes. And there's. We don't have to go deep into what the disagreement would mean, but that's important because 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. 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 January 3rd and him being sworn in on the 20th.

[Tamara Keith]

And it isn't us just coming up with crazy ideas of things.

[Susan Davis]

We.

[Tamara Keith]

Let's see. No, he has actually put it out there.

[Kerry 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 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.

[Tamara Keith]

Right. I think we're going to have a lot of conversations about what is a norm and what is the law and what could potentially happen.

[Susan Davis]

And then I would just note, too, this is also a new era in the Senate. Mitch McConnell's 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 press 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. All right.

[Tamara Keith]

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.

[Kerry Johnson]

I'm Kerry Johnson. I cover the Justice Department.

[Susan Davis]

And I'm Susan Davis. I cover politics.

[Tamara Keith]

And thank you for listening to the NPR Politics podcast.

[Gary]

This message comes from PNC Private bank, whose steady calculated approach to wealth management might sound boring, but the outcomes are anything but. PNC Private bank brilliantly boring since 1865. PNC Bank National Association Member, FDIC. This message comes from NPR sponsor Rosetta Stone, an expert in language learning for 30 years. Right now, NPR listeners can Rosetta Stone's lifetime membership to 25 different languages for 50% off. Learn [e-mail] NPR.