Elizabeth Rybicki
Specialist on Congress and Legislative Process
Article II, Section 2 of the Constitution provides that the President shall appoint officers of the United States “by and with the Advice and Consent of the Senate.” This report, which has been updated to reflect the changes resulting from Senate actions on November 21, 2013, describes the process by which the Senate provides advice and consent on presidential nominations, including receipt and referral of nominations, committee practices, and floor procedure.
The vast majority of presidential appointees are confirmed routinely by the Senate. A regularized process facilitates quick action on thousands of government positions. The process also allows for lengthy scrutiny of candidates when necessary. Each year, a few hundred nominees to high-level positions are subject to Senate investigations and public hearings.
Committees play the central role in the process through investigations and hearings. Senate Rule XXXI provides that nominations shall be referred to appropriate committees “unless otherwise ordered.” Most nominations are referred, although a Senate standing order provides that some nominations to specified positions will not be referred unless requested by a Senator. The Senate Rule concerning committee jurisdictions (Rule XXV) broadly defines issue areas for committees, and the same jurisdictional statements generally apply to nominations as well as legislation. A committee often gathers information about a nominee either before or instead of a formal hearing.
A committee considering a nomination has four options. It can report the nomination to the Senate favorably, unfavorably, or without recommendation, or it can choose to take no action. It is more common for a committee to take no action on a nomination than to reject a nominee outright.
The Senate handles executive business, which includes both nominations and treaties, separately from its legislative business. All nominations reported from committee are listed on the Executive Calendar, a separate document from the Calendar of Business, which lists pending bills and resolutions. Generally speaking, the majority leader schedules floor consideration of nominations on the Calendar. Nominations are considered in “executive session,” a parliamentary form of the Senate in session that has its own journal and, to some extent, its own rules of procedure.
The question before the Senate when a nomination is called up is “will the Senate advise and consent to this nomination?” Only a majority of Senators present and voting, a quorum being present, is required to approve a nomination. Because nominations are vulnerable to filibusters, however, in the past a higher level of support has been necessary. Cloture may be invoked to place limits on further consideration of a nomination. In November 2013, the Senate reinterpreted Rule XXII in order to allow a majority of Senators voting to invoke cloture on nominations other than to the Supreme Court. In the absence of unanimous consent, bringing a nomination to a vote could still require a multi-day cloture process, but with the exception of Supreme Court Justices it will no longer require the support of three-fifths of the Senate (typically 60 Senators).
Nominations that are pending when the Senate adjourns or recesses for more than 30 days are returned to the President unless the Senate, by unanimous consent, waives the rule requiring their return (Senate Rule XXXI, clause 6). If a nomination is returned, and the President still desires Senate consideration, he must submit a new nomination to the Senate.
Date of Report: November 25, 2013
Number of Pages: 17
Order Number: RL31980
Price: $29.95
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