The American Senate: The Last Remaining Guardrail of Democracy or Weak-kneed Sellout?

November 22, 2024 , Brooke Jeffrey , Comments Off on The American Senate: The Last Remaining Guardrail of Democracy or Weak-kneed Sellout?

Voters who, despite their misgivings, chose Donald Trump in the recent American presidential election, and who excused his outrageous antidemocratic outbursts by convincing themselves he “didn’t mean it”, have already been proven wrong. [i]

Evidently determined to show that he did mean every word he said, Trump has wasted no time in announcing his selections for cabinet posts. All of them are not only ardent MAGA Republicans but fierce Trump supporters. All of them have enthusiastically promoted his extreme agenda and their nominations have also reinforced Trump’s pledge to take revenge on opponents and undermine democratic practices and the justice system. [ii]

In addition, almost all of Trump’s choices are not merely unconventional but hugely inappropriate for a variety of reasons, and almost all lack any meaningful qualifications for the post they have been selected to fill. Several, such as Matt Gaetz and Tulsi Gabbard, have been described as dangerous. As one observer wrote about the nomination of South Dakota governor Kristi Noem for Homeland Security, “In any other administration (even Trump’s first) she would be an unserious candidate. This time around, her nomination got barely fifteen seconds of news, as it was buried in the landslide of even more absurd nominees.”[iii]

Many Republican Senators and Representatives have said they are surprised (and even astonished) by Trump’s choices. Some have said they are “baffled” by several nominations. Others, such as Republican Senator Lisa Murkowski, have described at least two of them as “not serious” or “completely inappropriate.”[iv] On hearing some of the names on the list, one Republican Congressman declared “I can’t even believe it” and another was reduced to responding “Oh my God.”[v]

The Senate is literally the only institution of American democracy left standing that can prevent many of the spectacularly inappropriate and unqualified individuals nominated by Trump to assume their appointments. The burning question is whether this body, now filled with a Republican majority, will have the determination and de facto autonomy necessary to thwart Trump’s demand for absolute loyalty, or whether it will bend to the MAGA wave. [vi]

In theory it does have such autonomy. Indeed, Congress – consisting of the Senate and the House of Representatives — is constitutionally “co-equal” with the president. For those unfamiliar with the American system, cabinet ministers, (known as Secretaries), do not need to be members of Congress, or even registered Republicans. The president can select almost anyone he or she chooses. (This of course is quite unlike the parliamentary system, where a prime minister chooses cabinet ministers from among those elected Members of Parliament representing his/her political party.) Largely because of this wide discretion provided to the president, the American system therefore adds yet another a “check and balance” feature, by requiring all of a president’s cabinet nominees, along with many other executive posts, to be vetted and confirmed by the Senate in much the same way as Supreme Court nominations.

In the past, regardless of which party has held the majority in the Senate, that body has not hesitated to seriously investigate and deliberate on candidates and, on occasion, to deny confirmation to some of a president’s picks. In this case, the Republican hold on the Senate is not nearly as substantial as it might appear. There are now 53 Republican Senators to 47 Democrats. This means that only 4 Republican Senators would need to refuse to confirm a candidate to deny the majority vote required, since Democrats are almost certain to vote against these individuals as a block. Observers agree there are at least nine Republicans of independent mindset who could potentially deny confirmation. None of them are part of the MAGA/Trump orbit. Several have had run-ins with the president-elect in the past, and all of them have expressed grave doubts about a number of his candidates. [vii]

There are already some indications that the Senate may indeed serve as a roadblock to Trump’s steamroller. His VP-elect, JD Vance, failed to sell Matt Gaetz to the Senate despite a vigorous public relations campaign, resulting in that candidate’s withdrawal. This development is seen by many observers as confirmation that some of these Senators will stick to their guns and that many of Trump’s other inappropriate choices may be in for a rough ride.

Another positive sign that the Senate may still be independent of the Trump wave is the election of a perceived moderate Republican Senator, John Thune, as Majority Leader. He replaces his longstanding predecessor, Mitch McConnell, who had announced before the presidential election that he was stepping down. Thune’s selection is particularly significant since he easily defeated the declared MAGA choice, Senator Rick Scott. (Before this vote took place, Trump had “demanded” that whoever ran to be the next Majority leader should pledge to allow him to make appointments without any Senate confirmation process, and only Scott had agreed.)[viii]

But although this tenuous situation is seen as quite hopeful by many anti-Trump/MAGA observers, it does not tell the whole story. First, Trump is well-known for pursuing and exacting revenge on those who cross him. In this case, at least 3 of the potential Republican senators who might consider voting against an individual’s confirmation must be aware that their own terms will be up for re-election in 2026, and Trump might consider running his own candidates against them. (Others have only just been elected and their seats are secure during his term, while former Speaker Mitch McConnell will be retiring.)

A more significant problem testing the will of the Senate could come with Trump’s patently obvious attempts to avoid confirmation hearings entirely by demanding the Senate “recess.” In the past, presidents of both parties have made appointments when the Senate was already in recess, and therefore a Senate confirmation hearing did not occur at that time. However these appointments were primarily for many of the roughly 1200 executive positions at much lower levels in the federal government, and primarily for positions that became vacant during a recess. [ix] Such appointments also were for a limited period, after which confirmation would have to occur before re-appointment. In recent years some appointments made in this fashion by both Republican and Democratic presidents have been controversial, and a Supreme Court ruling in 2012 made it clear that there were significant limitations on when and how this could be done. Indeed, conservative justices on the court, who were in the minority, placed even greater limitations on the practice.[x]

Trump’s ‘demand’ that the Senate deliberately recess, in order to bypass confirmation hearings for his cabinet picks, is therefore a blatant attempt to subvert both the role of the Senate and the constitution. Adding to this unprecedented demand is his recent declaration that none of his choices will sign the agreements allowing the FBI to carry out the standard security checks required of cabinet appointees. If this violation of procedure is allowed to stand, it would mean that the Senate would be attempting to vet individuals at their confirmation hearings without benefit of the usual range of criminal, financial and other background information. Given that one of Trump’s choices, Pete Hegseth for Defence, has already failed an FBI security clearance for an unrelated purpose,[xi] this extraordinary decision by Trump can only lead to intense speculation as to what other problems such background checks may pose for his other nominees. Clearly Matt Gaetz would have been extremely unlikely to receive a security clearance, which may well have been the initial motivator for Trump’s decision. It is also instructive to note that Trump himself overruled officials in 2020 and ordered them to provide his son-in-law, Jared Kushner, with a security clearance when it was denied by the FBI in 2019.[xii]

Probably the most hopeful sign that the Senate will stand its ground has been provided by various Republican Senators, who have themselves warned Trump that an overly aggressive approach to a recess, and the appointments process, may have serious unanticipated political consequences. For example Senator Mike Rounds, a close ally of incoming Majority Leader Thune, stated categorically that it would be “extremely difficult” for Trump to force the Senate into a recess. Even if it were possible, he said, it could produce simmering resentment among the moderate Republicans, and could lead to lengthy delays on the consideration of Trump legislation down the road as they, along with the Democrats – who obviously would not have agreed to such a recess — would be able to exercise many stalling tactics to delay the process.[xiii]

Whether the president-elect will listen to these voices of reason, or stubbornly continue with his radical disregard for convention, procedural rules and constitutional norms is something that will not likely be determined until his own swearing-in ceremony in late January. Until then, however, journalists’ ongoing speculation and rigorous investigation of his various nominees is likely to continue unabated, made more intense by the very evasive manoeuvers he has tried to invoke. It may be that Matt Gaetz will not be the only casualty before then. However it may also be that, given the overwhelming number of inappropriate nominees, Republican Senators may feel obliged to let the merely incompetent pass in order to stop the truly dangerous.

APPENDIX: Trump’s Choices to Date

Robert F Kennedy (RFK Jr) to Health and Human Services, a department that is responsible for nearly one quarter of federal government expenditures and includes agencies such as the renowned Centre for Disease Control and Prevention and the Centre for Medicaid and Medical Services. Yet this is a man with no recognized qualifications, who believes a number of “deranged anti-science conspiracy theories” including the debunked claims that vaccines cause autism, fluoridated water causes brain damage, raw milk is healthier than pasteurized, ivermectin (a drug used by veterinarians) can treat and prevent COVID-19, and 5G cellphones are designed to control human behaviour.[xiv] Announcing his choice, Trump declared “I’m going to let him go wild on health. I’m going to let him go wild on medicines.”[xv]

Matt Gaetz* as Attorney General, putting him in charge of the Justice Department he has repeatedly criticized and pledged to ‘clean house,’ and which investigated him for a variety of criminal offences including sex trafficking. Like Kennedy, he has no demonstrable qualifications for the post. Moreover, as a Republican Congressman, Gaetz was a highly unpopular rabble rouser who initiated the controversial replacement of Kevin McCarthy as (Republican) House Speaker. He has also been the subject of a series of investigations by the House Ethics Committee related to sexual misconduct and corruption. The committee was due to table a report on its findings the day after Gaetz resigned from Congress, a strategic move that technically prevented its release. (Since then, however, a number of leaks of the report’s contents have heightened even the most sympathetic Republican Senators’ concerns and made the chances of his confirmation slim to nonexistent.

(*As mentioned above, on November 21^st Gaetz withdrew his candidacy. He has been replaced by Trump’s nomination of current Florida Attorney General Pam Bondi, an individual with obvious legal credentials but one who has been closely involved with Trump since 2016 and has made several problematic policy decisions in his favour as well as receiving substantial financial contributions from him.[xvi] She also backed his legal challenge of Pennsylvania’s 2020 election result claiming Trump had actually won.)

Another highly problematic choice is that of Fox News host Pete Hegseth (Defence), also under a cloud due to accusations of sexual misconduct. Apart from his brief military service Hegseth too has no obvious qualifications for the post, but is well known for his statements that women should not be allowed in the military, as well as his hawkish stand on America’s ‘enemies’, including support for pre-emptive strikes on North Korea and Iran. As a member of the National Guard he was once denied a security clearance by the FBI and is known for his close association with various white nationalist groups.[xvii]

Although not a cabinet appointment per se, Trump’s nomination of a former Democrat/Independent/Republican Trump supporter, Tulsi Gabbard, as Director of National Intelligence has raised both eyebrows and alarm bells. Although she, too, has no obvious credentials for the job, her public remarks suggest she supports Russia’s war with Ukraine and the Syrian dictatorship of Bashir al-Assad (with whom she met twice) but is unconcerned about many other perceived threats to American national security. More importantly, she is seen to be actively hostile to the American security establishment, whom she has described as “warmongers”, and has advocated for repeal of the Patriots Act and charges laid against national security whistleblowers Snowden, Assange and Manning, while introducing her own Protection of Whistleblowers legislation. Both former Republican presidential candidate Nikki Haley and former Trump national security adviser John Bolton have been scathing in their criticism of her nomination. “This is not a place for a Russian, Iranian, Syrian, Chinese sympathizer. DNI has to analyze real threats,” Haley said. “Are we comfortable with someone like that at the top of our national intelligence agencies?” [xviii]

Among other unconventional and problematic nominees are Chris Wright (Energy Secretary) CEO of an oil company and major Trump campaign donor, who said a year ago “There is no climate crisis and we’re not in the midst of an energy transition either”,[xix] and Linda McMahon, (Education) a former World Wrestling Entertainment executive who is a religious conservative and fierce advocate of ‘parents’ rights.’

Then there is former South Dakota governor Kristi Noem (Homeland Security) whose only claim to fame appears to be having shot both a goat and her own dog in a fit of pique and then widely publicized this bizarre behaviour in a memoir. As one prominent analysis demonstrating her almost complete lack of qualifications for this important post has concluded:

Several of Trump’s nominations—Matt Gaetz and Tulsi Gabbard to name two—are so manifestly dangerous that they may, just may, be rejected by the Republican Senate. Likewise, his nominations of those who are deeply unqualified, like Pete Hegseth and Robert F. Kennedy Jr., have the effect of distracting attention.

Which leaves the merely minimally qualified a near-clear run toward confirmation. Consider, for example, the nomination of South Dakota Gov. Kristi Noem to be secretary of homeland security. In any other administration (even Trump’s first) she would be an unserious candidate. This time around, her nomination got barely fifteen seconds of news, as it was buried in the landslide of even more absurd nominees. [xx]

These individuals are joined by Sean Duffy (Transportation Secretary) whose only credentials appear to be his experience as a Fox TV Business host and former reality TV Star, and two of Trump’s former lawyers in his recent criminal defence cases, Doug Collins (Veterans Affairs Secretary) who as a former Republican congressman was one of the rabid few who signed the document disputing the 2020 election results, and John Sauer, (Solicitor General) another former Trump lawyer who admittedly has exceptionally impressive legal credentials, but holds extreme perspectives on several issues currently before the court system. As one resume proudly outlined, “In December 2020, Sauer as Solicitor General of Missouri led a group of states in filing a “friend of the court” brief supporting Texas’s unsuccessful efforts to overturn the results of the 2020 election in four battleground states won by Joe Biden. In 2022, Sauer challenged the Biden administration’s COVID vaccine mandate for workers in federally funded healthcare facilities. After stepping down as Missouri’s solicitor general, Sauer formed his own law firm, and in private practice has continued to litigate hot-button issues. He represented Louisiana, joined by Missouri, in its unsuccessful attempt to limit the government’s ability to communicate with social media companies about their content moderation policies. And he currently represents state officials defending an Arizona law that bars transgender women and girls from competing in college and school sports.[xxi]

These are only some of the most outrageous picks Trump has announced so far. For a complete and up to date list, consult the MSNBC dedicated website, (https://www.msnbc.com/top-stories/latest/trump-appointees-list-administration-cabinet-white-house-rcna179749) which not only provides background information on candidates but indicates which of these appointments does in fact require Senate confirmation.

[i] Take, for example, the ridiculous disclaimers of the American Muslim leadership, especially in the swing state of Michigan where they form a substantial voting bloc, who first insisted they were not to blame for his election, after having refused to vote for the Democrats because of that party’s allegedly too pro-Israel stance (https://www.youtube.com/watch?v=-Q3hs_677rQ) and then expressed surprise and outrage because Trump’s cabinet picks are more pro-Israel than the Democrats: (https://www.reuters.com/world/us/muslims-who-voted-trump-upset-by-his-pro-israel-cabinet-picks-2024-11-15/)

[ii] For a detailed list of Trump’s picks to date, see appendix.

[iii] https://www.thebulwark.com/p/kristi-noem-homeland-security-unqualified

[iv] https://www.nbcnews.com/politics/donald-trump/trump-baffles-republican-senators-picking-matt-gaetz-attorney-general-rcna180048

[v] Op cit.

[vi] https://www.msnbc.com/top-stories/latest/trump-cabinet-senate-republicans-checks-balances-rcna179779

[vii] https://thehill.com/homenews/senate/4993818-trump-cabinet-potential-obstacles/

[viii] https://www.msnbc.com/top-stories/latest/trump-cabinet-senate-republicans-checks-balances-rcna179779

[ix] https://presidentialtransition.org/wp-content/uploads/sites/6/2020/12/Presidentially-Appointed-Positions.pdf

[x] https://www.vox.com/2014/6/26/5843366/recess-appointments-supreme-court

[xi] https://www.msnbc.com/opinion/msnbc-opinion/trump-defense-secretary-cabinet-fox-news-pete-hegseth-rcna179956

[xii] https://www.nytimes.com/2019/02/28/us/politics/jared-kushner-security-clearance.html

[xiii] https://thehill.com/video/gop-senators-warn-trump-against-aggressive-recess-appointment-move/10242063/