The first stand for the Constitution

How to read the ongoing confirmation showdown

Ben Raderstorf

The first big showdown of Trump’s second term is coming into focus.?

On the surface it’s about confirmation for his cabinet nominees. The question, though, isn’t really whether this nominee or that will make it through; it’s whether any constitutional checks will hold against the strongman assault.?

According to scholars who have studied the descent into authoritarianism overseas, the signals sent at the outset of the aspiring autocrat’s tenure carry outsized importance. If constitutional checks quickly fold, allowing the autocrat to get away with ever-more-outlandish moves, the deterioration is likely to accelerate. But if there are early positive signs of constitutional democracy working as it should, that too can have a multiplying effect in the future. Those who held the line — especially if they can get some reward and avoid punishment — can harden their resolve to do so again. Others who are watching can take comfort and inspiration that it’s possible.

To be clear, we’ve had a lot of ugly indicators over the past few weeks, with corporate titans and media figures engaging in various forms of anticipatory obedience.?

But we got a meaningful positive data point yesterday when Matt Gaetz, a former congressman previously investigated for sex trafficking and statutory rape, withdrew his name from consideration for Attorney General. According to reporting, he did so after at least four Senate Republicans made clear that they would not support the nomination.

Just hours later Trump announced a new nominee: former Florida AG Pam Bondi. I’m not going to weigh in on Bondi now — we’re still evaluating what her nomination likely means, more to come — but that’s a bit beside the point.

That’s because Donald Trump has also put forward a set of other nominees — a conspiracy theorist to lead Health and Human Services, a Putin-apologist to lead the Intelligence Community, a TV anchor previously accused of sexual assault to be Secretary of Defense, a pro wrestling executive to be Secretary of Education — that, like Gaetz, go beyond the pale. They’re not just unfit; they are pretty much exactly the kind of obsequiously loyal yes-men that the Framers had in mind when they designed the Senate confirmation process in the first place (1).

For more on this theme, I recommend Ezra Klein’s conversation with Anne Applebaum this week.

There’s another dynamic too. In nominating these candidates, Trump is also attempting to show early dominance over congressional Republicans and potentially the Supreme Court. He’s aiming for an immediate, multi-part showdown with the people who still have the most power to check his agenda.?

Here’s the full test he’s setting up:

1. Will the Senate abdicate from its longstanding constitutional obligation to vet the nominee’s qualifications and ultimately approve or reject them on the merits??
2. If the Senate rejects — or seems likely to reject — more nominees, will congressional Republicans conspire with Trump to adjourn Congress so he can use “recess appointments” to appoint members of his cabinet without the advice and consent of the Senate??
3. Will the Supreme Court bless such an extraordinary shift of power from Congress to the presidency? (Note: 10 years ago, the Court sharply curtailed then-President Obama’s power to make recess appointments.)?

If the answer to any of these questions ends up being “yes,” more than anything else it will be a telling — and frightening — indicator of how the guardrails will fare through the Trump Administration.??

Read the full piece >>