Would Trump’s Justices Approve His Recess Appointments?

Can President Trump make recess appointments for nominees the Senate won’t confirm? Incoming Senate Majority Leader John Thune says the option is “on the table.” But recess appointments are complicated, and if Mr. Trump tries this approach to overcome senatorial opposition, it would likely be struck down by the Supreme Court.

The first problem—superable but nontrivial—would be getting the Senate into recess. Mr. Thune can’t simply bang a gavel and declare a recess. The Supreme Court has held that an adjournment must at minimum be longer than three days to count as a “recess,” and the Constitution says that both the House and Senate must agree by majority vote to any adjournment in either chamber longer than three days. That requires a majority vote in both chambers. If a majority of senators don’t support a nominee, why would they go along with a recess designed to circumvent their opposition?