Rarely in politics does a theoretical conversation become practical the way it did in the U.S. Senate on Wednesday. Broad questions about how comfortable Senate Republicans will be with acquiescing to Donald Trump’s desires in the morning became tightly focused on his pick for attorney general, Matt Gaetz, in the afternoon.
Trump has made clear he wants his people in office, whether or not the Senate deliberates on it. He’s called for recess appointments and put his allies atop newly created departments that seemingly sidestep the confirmation process altogether.
“I think it’s obvious why you want to work around the Senate when you’re nominating Matt Gaetz to be attorney general,” a senior GOP aide told NOTUS.
The Senate doesn’t usually cede this kind of power without some pearl-clutching. And Senate Republicans don’t fall out of line with Trump without serious political consequences. Gaetz’s nomination — one that was met with shock and dismay among many in the Republican ranks — tests the case: How willing are Senate Republicans to shrink their own voice?
All three candidates for Senate leader expressed support for using recess appointments after Trump said on X that “Any Republican Senator seeking the coveted LEADERSHIP position in the United States Senate must agree” to allow them.
Though, in interviews with NOTUS, Republican senators said Trump’s call for recess appointments should be a plan of last resort.
“Recess appointments are something that are last resorts in case of just, insane obstruction that impedes the work of the executive branch,” Sen. Marco Rubio, now nominated for secretary of state to much applause, said. “I don’t speak for President Trump, but I would imagine he would agree. Ideally, you’d have a nominations process where people are getting voted on.”
Other senators also close to the Trump wing of the GOP agreed with this take. After news of Gaetz’s nomination, Republicans closer to the political center were not as quick to get on board with the idea of letting Trump skip the unpredictable Senate confirmation process.
“I was shocked by the announcement. It shows why the advice and consent process is so important,” Sen. Susan Collins said. “Obviously, the president has the right to nominate whomever he wishes, but I’m certain that there will be a lot of questions.”
The willingness of the Senate leaders to publicly consider recess appointments for any president, even one of their own party, represents a change in the GOP. Outgoing Senate Republican Leader Mitch McConnell was known for firmly protecting the right of the Senate majority to do exactly what it wanted, when it wanted, how it wanted, regardless of who that annoyed. But after a bruising leadership bid to replace him, some wonder if the era of the Senate towering over politics is coming to an end.
“All three of our candidates for leader expressed support if we can’t get the people confirmed quickly enough,” Sen. Ron Johnson said. “I support that.”
Senate veterans who clashed with McConnell said the openness to recess appointments represented a surprising shift away from Senate institutional protectionism.
“This is a clear attempt to undermine the tradition, a core responsibility of the Senate, and anyone who tells you otherwise is kidding themselves,” Jim Manley, a top aide to the late Democratic Senate leader Harry Reid, told NOTUS. “As we’ve seen with Trump, give an inch and he’ll go for the whole enchilada. And the next up, I assume it’s going to be to eliminate the filibuster.”
Trump’s allies in the Republican caucus dismissed this kind of thinking. Sen. Josh Hawley, a constitutional lawyer from Missouri, defended using recess appointments.
“The president does have the constitutional authority to do recess, it’s in the Constitution. It’s right there, so he can absolutely do it,” Hawley said. “I think that we should say to our colleagues, our Democrat colleagues, listen, I mean, cooperate with us to process these nominees in a timely manner, do not stall.”
Johnson scoffed at the idea that the move decreased Senate power.
“We have way too many confirmations anyway,” he said.
The power is mentioned in the Constitution, and such appointments have been utilized by recent presidents. President Barack Obama made 32 recess appointments, Bill Clinton made 139 recess appointments and George W. Bush made 171 recess appointments. The practice became contentious under Obama, and the Supreme Court eventually ruled to curtail the power.
There are signs that Trump’s push to test the limits of the court ruling on recess appointments doesn’t sit well with all Republicans. Sen. Kevin Cramer was among those who found the idea concerning, not just for the power of the Senate but for the idea of checks and balances in general.
“I’d like to avoid them, if I can. I think the separation of powers is pretty fundamental,” he said. “To get our consent is, again, it’s really a rich part of our founders’ legacy.”
James Wallner, a former Senate aide and consistent critic of Senate dysfunction at the GOP-leaning think tank R Street Institute, said the recess appointment debate was overblown.
“Like everything else in politics, in the Senate in particular, you have to take it with a grain of salt,” he told NOTUS. “From an institutional standpoint, it doesn’t in and of itself undermine the separation of powers the way some have been suggesting.”
Wallner advocates a Senate very different from the one modern politics is used to, where leadership has less power over what happens and individual senators work together in a more open process. He said it remains to be seen if new procedural rules crafted by the freshly minted majority leadership team will result in the kinds of changes he wants.
These grand thoughts about a Senate GOP with its first new leadership in decades shifted when the nomination of Gaetz hit D.C. inboxes, however. Ed Whelan, a conservative legal thinker and MAGA critic, posted a scenario on X where Trump would adjourn Congress after his allies in the House helped trigger the president’s constitutional authority by refusing to agree to adjourn on their own. In theory, the president would then make his recess appointments, bypassing Senate review. Whelan called the idea “bonkers.”
Recess nominations aren’t necessarily easy to do. The Senate has to be out of session for a certain number of days, and the Senate usually holds pro forma sessions to prevent presidents from being able to conduct business without them. Some senators expressed that there would be little time for such a maneuver, even if Republicans agreed the move was necessary.
“You gotta be in recess 10 days before you can do a recess appointment, we ain’t gonna be in recess no 10 days up here, so it’d be hard to even start a conversation on that,” Sen. Tommy Tuberville said. “We got 53 votes, so we can confirm them if we get it going.”
Ultimately, Republican senators wary of recess appointments pointed the finger back at Democrats.
“We’ve got to get these nominations through, so we need to figure out how we can do that to make sure we do get them through,” he said. “It depends on how Democrats are working.”
There were also signs that the old, traditional Senate fear of change is still very much in effect. Some Republican senators were wary of starting a precedent Democrats could later use to their advantage. Despite it all, others expressed confidence that they could get the work done with a majority.
“The Supreme Court’s already spoken to this when President Obama abused it. The Supreme Court spoke very clearly on many of the boundaries on that, and quite frankly, we haven’t had recess appointments in the last two presidential times because of that,” Sen. James Lankford said. “I don’t think it’s going to be needed, because I think we’re going to actually do our job.”
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Casey Murray is a NOTUS reporter and an Allbritton Journalism Institute fellow. Evan McMorris-Santoro is a reporter at NOTUS. Nuha Dolby and Matt Fuller contributed to this report.