Robert Byrd, the longtime Democratic senator from West Virginia, was steeped in the classics and in the history of the Senate. “Julius Caesar did not seize power in Rome,” Byrd declaimed on the Senate floor in 1993. “The Roman Senate thrust power on Caesar deliberately, with forethought, with surrender, with intent to escape from responsibility.”
In January, when the next Senate begins holding confirmation hearings, we’ll learn how many Senate Republicans will cede power to Donald Trump. With a 53-to-47 Republican majority, it will take only four Republicans to reject Trump’s assault on their constitutional duty to provide “advice and consent” on nominations to his cabinet.
The contours of this constitutional struggle aren’t clear yet, but I see two battles brewing. The first — a kind of test vote — could revolve around the nomination of Pete Hegseth to be secretary of defense. Now that the Trump team has agreed to allow the F.B.I. to conduct background checks on nominees (though it’s not clear whether every nominee will be scrutinized), what will the Senate do if those checks turn up negative information? A damaging F.B.I. report on allegations that Hegseth sexually assaulted a woman in 2017 — combined with his poor record as a manager of two veterans organizations and his alcoholism — might threaten his nomination.
The second battle would occur if Trump then tries to push Hegseth or other rejected nominees into office by appointing them after forcing Congress to recess (perhaps aided by a House-sanctioned adjournment), circumventing the Senate confirmation process. Then we would have a full-on constitutional crisis.
Just as two former Senate Democrats, Joe Manchin and Kyrsten Sinema, became household names when they challenged President Biden on some issues, might a handful of “constitutional Republicans” emerge early next year to stand up to Trump on the separation of powers?
It’s not naïve to think that many senators will want to hang on to their power. World-weary Democrats outside the Senate think Susan Collins’s assurances will melt like early December snow on first contact with Trump. But Collins, Lisa Murkowski, John Cornyn and Mike Rounds have all been quoted in recent days referring to their solemn obligations under the advice and consent provisions of the Constitution and they just may mean it.
Mitch McConnell is stepping down as party leader but will assume the chairmanship of the Senate Rules Committee in order to protect Senate traditions and prerogatives. A few other Senate Republicans show no signs of being afraid of Trump. Bill Cassidy voted to convict him in his second impeachment trial and Todd Young, like Collins, Murkowski and Cassidy, refused to endorse him this year.
That’s seven possible constitutional Republicans and there could be more. The MAGA world’s choice for Senate majority leader, Rick Scott, won only 13 out of 48 Republican votes last month. The vote was by secret ballot but still significant. The winner, John Thune, said recess appointments were on the table, but that was meaningless; everyone acknowledges their utility in limited circumstances and Thune, too, made a point of standing up for the Senate’s independence.
Words only? We’ll see. In a 1998 lecture in the Old Senate Chamber, Byrd told his colleagues that they must be “eternally vigilant” in protecting their constitutional powers from the encroachments of a “despotic” executive.
The choice for the Senate in 2025 is clear: Hail the founders — or Caesar.
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