Why the Senate GOP Is Choosing Confirmation Gridlock

(Editor’s note: This piece first appeared in Lyceum on August 20, 2026.)

Senate Republicans are once again being accused of standing in the way of President Trump’s agenda. First, they left Washington for their five-week August recess without voting to advance the SAVE America Act. Now they are being criticized for preventing Trump from installing his remaining nominees through recess appointments.
 
The latest controversy concerns the Senate’s pro forma sessions. Every few days during the recess, a Republican senator briefly gavels the chamber into session and then adjourns it. John Boozman (R-Ark), Jim Justice (R-W.Va), and Jim Banks (R-Ind), have presided over such sessions since the Senate left town.
 
Justice was branded a “traitor” by some Trump supporters online for supposedly helping to block the president’s America First agenda by preventing action on his nominees. Other Republicans have pushed back, arguing that the critics misunderstand what is happening. Ron Johnson, R-Wis., noted that the Senate confirmed dozens of Trump nominees before leaving Washington. The Senate approved more than 70 nominations, including Todd Blanche as attorney general, before leaving town.
 
Yet the Senate did not eliminate its nomination backlog before beginning its August recess. Excluding routine military and Coast Guard promotions, ten nominees remain on the Executive Calendar awaiting floor action when senators return, including Labor secretary nominee Keith Sonderling, four judicial nominees, two Postal Service governors, and the ambassadors-designate to Jamaica and the Slovak Republic. The Senate has already filed cloture on one of them, district judge nominee Matthew Byrne, and scheduled that vote for 5:30 p.m. on September 14 – its first day back in session. Another 105 nominations are pending in committee. Two more, Jeffrey Kaufmann and Leslie Becera, sit on the calendar as privileged nominations. In all, 117 civilian nominations awaited Senate action when the chamber left town.
 
The Constitution authorizes two ways to fill many federal offices. Ordinarily, the president nominates someone, and the Senate provides its advice and consent by voting to confirm the nominee. Republicans and Democrats alike have made confirmation considerably easier over the years, using the nuclear option to reduce the number of votes needed to end debate on a nominee to a simple majority and shortening the debate time a nominee receives after cloture has been invoked.
 
But it still takes time and effort to confirm the president’s nominees this way. Committees still have to process most nominations under the Senate’s rules. And the Senate still has to consider nominees on the floor before approving them. That takes time away from Republicans’ other legislative priorities.
 
The Constitution provides another option. The Recess Appointments Clause authorizes the president to fill vacancies during a recess of the Senate for a limited period of time.
 
The catch is that the Senate must be out of session long enough before the president can make a recess appointment.
 
The Adjournment Clause prohibits the Senate from adjourning for more than three days without the House’s consent. When the two chambers cannot agree, they convene every few days for a pro forma session to satisfy the Constitution’s requirement. And the Supreme Court concluded in NLRB v. Noel Canning that a recess lasting fewer than ten days is presumptively too short to permit recess appointments. That is why the Senate’s pro forma sessions prevent Trump from making recess appointments.
 
Creating a sufficiently long recess also requires House cooperation. But Republicans control the House. If Republicans in both chambers wanted to allow Trump to make recess appointments, they could agree to adjourn long enough to do it.
 
While the House is unlikely to object, Republicans may prefer the normal confirmation process for several reasons.
 
First, recess appointments are temporary. An appointment made this summer would expire at the end of the Senate’s next session – the end of 2027 – not at the end of Trump’s presidency.
 
Second, Senate Rule XXXI requires pending nominations to be returned to the president when the Senate recesses for more than 30 days. Pro forma sessions prevent that from happening, because they count as sessions under the Senate’s rules. They therefore keep the president’s nominees from being returned automatically at the end of the August recess. That preserves the Senate’s ability to process those nominees when senators return in September.
 
Yet the Senate will have to process those nominees when it returns if they are to be confirmed through advice and consent. And the Senate has limited floor time between now and the midterm elections. Republicans say they want to take up a budget resolution and a reconciliation bill to advance the SAVE America Act. Other items, like a surface transportation reauthorization and funding the government, remain. Every nomination handled through ordinary Senate procedure consumes some of that time.
 
Recess appointments offer Republicans a constitutionally established way to place Trump’s personnel temporarily while freeing the Senate to spend more of its remaining time legislating.
 
The procedure is available. Republicans control both chambers. The vacancies remain.
 
The interesting question is why they prefer not to use it.