For several years, we were the Republican and Democratic counsels who reviewed presidential nominees’ background checks for the Senate Judiciary Committee. We know how the confirmation process is supposed to work and how important F.B.I. vetting is to that process. That’s why we’re appalled by reports that the new Republican-led Senate and the incoming Trump administration may dispense with it.
Without nominees being scrutinized by the F.B.I., the danger is that neither lawmakers nor the public would know whether they are trustworthy or have issues that could compromise their ability to do the job or their loyalty to the United States.
Efforts to bypass F.B.I. background checks and even Senate confirmation itself via mass recess appointments, made by the president when the Senate is not in session, never would have flown with past iterations of the Judiciary Committee, regardless of which party was in charge. The Senate shouldn’t stand for it now.
In our time working on the Judiciary Committee, we reviewed hundreds of nominations. Many nominees, like many Americans, had minor issues — isolated drug use, fights, bad employment experiences — but most of those incidents, while not ideal, never rose to the level of further investigation. When there were more significant issues, we handled them together, Democrats and Republicans, confidentially, so there would never be a question of our using people’s backgrounds for partisan gain. Once we had answered any outstanding questions, it was up to the senators to decide whether the information would affect their votes.
This was key: A nomination was never scheduled for committee consideration without the committee receiving an F.B.I. background check, reviewing it and clearing the nomination to move forward.
This was not merely a matter of formal process. The nominees evaluated by the committee, if confirmed, would occupy positions of great importance; they make decisions every day that affect national security as well the lives of ordinary Americans. Those decisions include who is charged with crimes, who goes to prison, how the legal system and justice system work, and how we treat civil rights and environmental laws.
Mr. Trump’s transition team is in talks with the Justice Department to begin processing security clearances for transition officials so they can get access to national security information. But even if such an agreement is reached, it would fall far short of a thorough commitment to the traditional background check process.
There are more than 1,200 leadership positions in the federal government that require Senate confirmation. Not all require security clearances but all are consequential positions for which upstanding character and fitness for office are critical. Some Trump advisers had recently suggested using private companies to undertake the background checks, but that would disrupt well-established procedures the Senate has come to trust over decades. Even assuming private contractors were thorough, objective, consistent and transparent — which is very much an open question — this untested process would most likely leave gaps and cause delays. Senate investigators would need to adapt on the fly and would have no clear process to review private investigators’ findings and follow up as needed.
Americans may disagree about the policy agenda set by a president and enacted by his executive branch appointees, but the Senate must perform its constitutional duty to ensure that president’s nominees understand their obligations under the law and possess the character and fitness to perform their duties. That means, among other things, understanding their duty to the law and the Constitution.
The Senate confirmation process is intended to prevent, as Alexander Hamilton wrote, the president from filling powerful offices with “unfit characters” who have “no other merit” than “being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.”
At a time when there are fewer and fewer meaningful checks on presidential power, the need for rigorous Senate consideration of nominees is all the more important. Without it, the president and his appointees could run roughshod over the government and over Americans’ lives with no one challenging them.
To prevent this, the Senate, across party lines, must make clear that, as has been the case for years, it will not consider nominations without an F.B.I. background check.
And with Senate consideration of nominees one of the few restraints on presidential power likely to be meaningful in 2025, the Senate and House should be clear that they will not be a party to a presidential plan to do an end run around the confirmation process with mass recess appointments. Mr. Trump urged just such an approach in a Nov. 10 post on Truth Social, before Senate Republicans chose their new leaders, writing, “Any Republican Senator seeking the coveted LEADERSHIP position in the United States Senate must agree to Recess Appointments.”
The two of us worked together in politically contentious times during the George W. Bush and Barack Obama administrations, under Democratic and Republican chairmen. The Judiciary Committee’s confirmation process had a reputation for being brutal. But disagreements about nominations never extended to the background investigation. No nominee would have moved forward to a committee hearing or vote without a meaningful review. President-elect Trump’s nominees should be treated no differently.
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