Frustration mounts at the White House over the slow-walking of Donald Trump’s Cabinet nominees in the Senate, where Democrats have used delay tactics to the full extent on several confirmations. White House counselor Kellyanne Conway told Hugh Hewitt this morning that all options are “on the table” to staff up the open positions in the administration, including recess appointments:
HH: Now, so I’m going to use this opportunity to lobby. There was a 2014 decision, NRLB V. Noel Canning that said the President can’t use the recess appointment power when the Senate’s not actually in recess. It actually has to be in recess of a sufficient length. I think if you nominate the deputy secretary of State, the deputy Secretary of Defense, the undersecretary for policy at DOD, the P at State, a solicitor general, perhaps, that might be of particular interest to you, they can all be recess appointment on March 22nd. Have you talked about that? Would you push that, because we’ve got to stand up this government, and Senate Democrats are not going to do anything to assist us in getting going.
KC: Everything’s on the table. All of that is being discussed, Hugh. And you make some excellent points. You’re right about the Democrats. I mean, to see sort of congenital, presumptive obstruction and negativity is very concerning, because it just means that the government can’t function fully, and that they’re obstructing regardless of who the individual is that’s being considered, regardless of the post that needs to be filled. And it’s very frustrating You see a record number of cabinet nominees being obstructed, and they’ve attempted to humiliate them. So far, all but one have gotten through. And it’s just, we need a government that functions. We still don’t have the Commerce Secretary approved. We don’t have Agriculture. We don’t have HUD. We don’t have any number, and some of the others are new, just in the last week or so.
Hugh mentions NLRB v Noel Canning, a unanimous Supreme Court decision hailed by conservatives that basically ended the practice of recess appointments except for actual recesses. The court took a middle ground between previous practice (which Barack Obama abused) of considering any break in the legislative schedule a recess, and the appellate court’s ruling that a recess had to be explicitly declared by the Senate. The court set a minimum length of ten days without a session for such appointments, but that applies more when the president’s party does not control the Senate. Republicans could easily declare a formal recess to allow Trump to make recess appointments; in fact, when people floated the idea of Obama using the recess between sessions to appoint Merrick Garland to the Supreme Court, people pointed out that Senate Republicans could declare a recess immediately, which would end Garland’s term – and also off the appellate bench too, from which he would have had to resign to accept the recess appointment.
The need for a recess appointment seems lacking, however. Democrats may be slow-walking appointments, but they will get through if Republicans stick together. That’s a parting gift from Harry Reid and his 2013 nuking of the filibuster for presidential appointments. Why not just flood the zone on appointments and highlight the obstruction even further? Hugh addressed that question from our friend Kurt Schlichter:
— Hugh Hewitt (@hughhewitt) February 21, 2017
Supreme Court justice on his list of 21 to the relevant circuit is beyond me. (Plus @CPLiebau to 2d, John Eastman to 10th, Paul Clement
— Hugh Hewitt (@hughhewitt) February 21, 2017
With Jeff Sessions in place, perhaps that process can be expedited even further. The sooner that those nominations come to the Senate, the quicker that the administration can deal with Obama administration hold-overs.
Politico picked up on the conversation, too, and even included an acknowledgment of the source of the frustration:
Senate Democrats have been slow to confirm many of Trump’s nominees to the Cabinet, at times resorting to procedural tactics like boycotting hearings to keep the process from moving along. The president has yet to fill many other posts that require confirmation, too.
Conway also threw some cold water on the idea that her husband has the inside track for Solicitor General:
Conway’s husband, the lawyer George Conway III, has been floated as a possible solicitor general, but she told Hewitt that she doubts that he’ll ultimately be tapped for the job.
Be sure to stick around to the end of the audio, when Conway makes an excellent point about the fact-checking of the media on Trump’s Electoral College claims. She notes that they didn’t bother to check one Obama claim for years, and it had a lot more impact on Americans than a claim about a victory margin.