Dem
47
GOP
53
Every day, there is another nomination of an individual who is not only totally unqualified for the job, but a direct affront to the Constitution and the whole idea of the rule of law. Donald Trump is challenging—no, daring—the Senate to exercise its constitutional role to advise and consent. Although since Trump is not asking the Senate for advice, all that is left then is for it to consent. At this point it is increasingly clear that many of the nominations, like Kash Patel, are just to bait the Senate and dare the senators to vote no. If Trump had made all the picks like Doug Burgum and Pam Bondi—conservatives, maybe a bit corrupt, but otherwise within the range of normal Republican nominations—the Senate would approve them all quickly. But now the Senate itself is on trial. Will it stand up for itself as a major governmental institution or will it just become a rubber stamp for whatever craziness Trump wants? Trump has interpreted his narrow victory (1.6% in the popular vote and 1.3% in the swing states) as a huge mandate granting him the power to undo 236 years of American history and do whatever he damn well pleases, without regard to tradition, law, or the Constitution.
The founding parents never conceived of a Senate that just bowed down and worshipped the president. It was designed to have strong powers as part of a system of checks and balances. There is nothing more central to the Senate than its confirmation power (and its shared power with the House over the budget). Will the Senate fail the test?
The Republican Senate Conference passed its first test when it chose Sen. John Thune (R-SD) as majority leader over the very Trumpy Sen. Rick Scott (R-FL). But that election was by secret ballot. The confirmation hearings will all be televised on C-SPAN and probably elsewhere and the votes will be public. Will the Senate pass that test?
There have been discussions about whether to keep the filibuster before, but the filibuster is just an old Senate rule. Changing a rule is something the Senate can do whenever it wants to. On the other hand, abandoning its constitutional duty is at a whole different level. Sarah Binder, an expert on Senate procedure at George Washington University, said: "When you open the barn door, it is really hard to get the horse back in." In other words, if a Republican president can bypass or cow the Senate, that is an invitation to the next Democratic president to do it as well. And once "advise and consent" goes out the door, what about the Senate's job to oversee federal agencies and the Executive Branch as well? Are those dead letters now?
Another part of the picture is Trump's plan to avoid full FBI background checks for nominees. Some senators don't care. Sen. Bill Hagerty (R-TN) said on ABC yesterday: "I don't think the American public cares who does the background checks." That is probably literally true because that is inside baseball. But the senators know very well that the FBI will do a thorough job and some company Trump hires will probably not, if they do anything more than ask the nominees a few questions (probably not under oath and probably not with lie detectors). Sen. Lisa Murkowski (R-AK), in contrast, wants FBI checks, but she hasn't said if failure to have one will be disqualifying by itself.
Many senators believe that the first few weeks of Trump v2.0, and how they handle outrageous nominations, will determine the future of the Senate. If the Senate fails to carry out its duties when the Constitution is crystal clear on them, what chance does it have when the dispute is merely over policy? Sen. Chris Coons (D-DE) put it this way: "Whether or not the Senate can be the institution that our framers intended is going to be proven one way or the other here in the next 2 months." (V)