Gaetz Could Get Confirmed Without the Senate: How Recess Appointments Work

President-elect Donald Trump’s pick for his next attorney general is evoking mixed emotions from Republicans.

Trump announced on Wednesday that he was tapping Florida U.S. Congressman Matt Gaetz to lead his second administration’s Department of Justice, a move that has shocked many lawmakers.

Gaetz’s nomination, however, still has to be confirmed by the Senate, and even with a GOP majority in the upper chamber of Congress in the new term, there could be some obstacles in confirming his position. Republicans secured 53 Senate seats after last week’s election. Democrats, along with two independents, hold 47.

“I’m all about counting votes, and I would think that he’s [Gaetz] probably got some work cut out for him,” North Carolina Senator Thom Tillis said on Wednesday. “We’re not going to get a single Democrat.”

The Senate often confirms a president’s Cabinet nominees without hesitation. But Trump has already demanded that the new GOP majority break with tradition and allow recess appointments, meaning that the president-elect’s nominees could bypass a Senate confirmation hearing.

“Any Republican Senator seeking the coveted LEADERSHIP position in the United States Senate must agree to Recess Appointments (in the Senate!), without which we will not be able to get people confirmed in a timely manner,” Trump posted to X, formerly Twitter, on Sunday.

“Sometimes the votes can take two years, or more,” he added. “This is what they did four years ago, and we cannot let it happen again. We need positions filled IMMEDIATELY!”

Presidents are given the authority under Article II of the Constitution to make appointments “by and with the advice and consent of the Senate.” But if the Senate is out of session, the steps by lawmakers to confirm such appointments, such as committee hearings and a chamber vote, are bypassed.

According to an analysis from ABC News, which cited the Congressional Research Service, former President Barack Obama made 32 recess appointments, ex-President George W. Bush made 171 and former President Bill Clinton made 139 while the Senate was on recess.

Republicans on Wednesday picked South Dakota Senator John Thune as the next majority leader, a more traditional conservative compared to other names in the running, such as MAGA-aligned Senators John Cornyn and Rick Scott. Thune told reporters during a news conference on Wednesday that the Senate “will do everything we can” to process Trump’s nominations quickly “so they can implement his agenda.”

“How that happens remains to be seen,” Thune added.

“We expect a level of cooperation from the Democrats to work with us to get these folks installed … we’re [going to] explore all options to make sure they get moved and that they get moved quickly.”

Several lawmakers have expressed support for recess appointments. Scott wrote in a post to X that he “100%” agrees with Trump’s request, writing, “I will do whatever it takes to get your nominations through as quickly as possible.”

Cornyn also responded to Trump’s request on X, writing, “It is unacceptable for Senate Ds to blockade President @realDonaldTrump’s cabinet appointments.”

“If they do, we will stay in session, including weekends, until they relent,” he added. “Additionally, the Constitution expressly confers the power on the President to make recess appointments.”