As Donald Trump brings a wrecking ball to what is left of our political norm, we need to stop thinking about democratic guardrails and start thinking about barricades and trenches. No advantage is too small to protect, and no weakness is too small to strengthen.
The FBI could start by conducting background checks on nominees, which would require Senate confirmation. The need for background checks goes without saying, as obtaining and verifying relevant information about candidates before voting is a fundamental part of the Senate's constitutional duty to advise and consent. It seems unreasonable that “consent” in “advice and consent” must be specified as “informed consent.”
Nevertheless, the FBI's background check requirements are under attack. Trump administration transition team brought up an idea Either the Senate has no background check at all, or an independent private investigator conducts a background check.
On Tuesday, after a long delay, the president-elect finally signed a memorandum of understanding with the Justice Department allowing the Trump transition team to send names to the FBI for background checks. Some commentators have speculated that this means President Trump has abandoned the idea of pushing the Senate to confirm unvetted nominees, but I don't think so.
The real motive for signing the memorandum is that under current law, the Trump transition team “Landing Team” In this case, President Trump's staff is responsible for orchestrating the transfer of power to federal agencies, unless they are subject to scrutiny. Moreover, none of these landing teams can obtain security clearance without background checks. This is an absolute must if you are going to be assigned to a place like the Department of Defense. That means there is still a very real possibility that the nominees will not be vetted, since President Trump has not yet formally promised to have all nominees vetted.
What if Trump follows through with his original plan? Of course, the Senate could simply refuse to confirm nominees who don't complete FBI background checks, but that would require Republican senators to publicly defy Donald Trump over and over again. We all know that this is unlikely to happen.
That's not necessary either. It's much easier and more reliable to simply change the Senate rules (specifically) Rule 31.1) To prevent the Senate from considering the nomination until a full FBI background check is completed and submitted to the Senate for consideration.
This has many advantages. First, one vote completely solves the problem. Second, there is no need to vote against President Trump's nominee. Voting in favor of a vague rule change won't win even President Trump a primary, especially if other Republican senators do the same.
It's also relatively easy to complete. The passage of this rule change, with all Democrats likely voting yes, will require the support of Lisa Murkowski and Susan Collins, who have already advocated for proper vetting of President Trump's nominees. In addition, only two Republican votes are needed.
These are political benefits, but there are also practical benefits. Appropriate background checks are necessary for the Senate to carry out its duties. Some of the current candidates may have information in their backgrounds that would cause even Republicans to vote against them.
For example, Tulsi Gabbard, the next Director of National Intelligence, has a disturbing pattern: siding anti-American dictators promote Kremlin-led conspiracy theory. she was even told that placed easily It's on the no-fly list. The Senate needs to know all there is to know about all this before confirming her as one of the key figures in the government tasked with protecting America from foreign enemies.
Even if President Trump promised to submit all of his nominees to FBI background checks, there is no reason not to change the Senate rules requiring it.
First, there is no reason to believe that Trump will never change his mind. Second, the fixed requirement that candidates be vetted by the FBI also goes a long way in deterring questionable candidates in the first place. Knowing that disqualifying information is bound to come out, President Trump will think more carefully about these appointments and avoid them becoming embarrassing train wrecks like this one. Gates' nomination. By contrast, allowing President Trump to force the Senate to confirm unvetted nominees would open the floodgates. Finally, if all of President Trump's nominees were to be vetted anyway, making it mandatory would be even less controversial.
Philosophically, there is also something to be said for having the Senate take the institutional position of properly vetting nominees. The Senate's constitutional duties do not depend on the political exigencies of the moment. It is the job of the Senate to provide advice and consent Even if a majority of senators fear angering the president. In fact, there has never been a better time for the Senate to function as an institution.
Would this rule change be constitutional? Could the Senate require the president to conduct an FBI background check before making a nomination? Almost certainly so. The Constitution gives the president the power to nominate whoever he wants, but that doesn't mean his nominees have the right to vote. The Senate is free to accept nominations for any reason or no reason – just ask a former Supreme Court nominee merrick garland.
Preemptive rule changes to protect the Senate's constitutional advice and consent powers appear to be little more than a rearguard action in the face of MAGA's assault on democratic norms. But every win is important. When it comes to protecting democracy, we can no longer take anything for granted.
chris tuaxHe is an appellate attorney and served as Southern California chair for John McCain's primary campaign in 2008.
