How US Senate Confirmations Work?
Whenever a US president nominates someone to fill a position in his administration — whether it’s just after the election or another time during his term in office — that nominee’s appointment is to be confirmed by the US Senate. The role of the Senate in the confirmation process is defined in the Constitution. Article II, Section 2 provides that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint high government officials.” The Senate gives its advice and consent to presidential appointments to the Supreme Court and to high-level positions in the Cabinet departments and independent agencies. The Senate also confirms appointments of members of regulatory commissions, ambassadors, federal judges, US attorneys, and US marshals. Somewhere between 1,200 and 1,400 government positions require confirmation. While many confirmation hearings take place just before and after a president takes office, the Senate must hold confirmation hearings for replacement appointments throughout a president’s term. Historically, the Senate has confirmed most presidential nominations, but “in rare instances” a vote to confirm has failed.
Why the process?
In theory, having the Senate confirm nominees is a sound idea. The president is the head of the executive branch and, like any boss, should be allowed his or her choice of employee. Yet because the president acts in the public trust, it is fitting that the people’s representatives scrutinise nominees. But the number of positions requiring such approval makes the process unwieldy. Not only do all cabinet positions require Senate confirmation, so do the agency heads and hundreds of other senior posts. And the length of the confirmation process has grown over the years. Ronald Reagan’s appointments took an average of 56 days to confirm. By the time Donald Trump was in office that had risen to 115.
The appointment process for executive branch positions is generally considered to have three stages: selection and nomination by the President, consideration by the Senate, and appointment by the President.
1. First the nominee is vetted by the president’s legal advisers and the FBI to ensure that the appointment is legal and that there are no conflicts of interest. During the clearance process, the candidate prepares and submits several forms, including the “Public Financial Disclosure Report” (OGE 278e), the “Questionnaire for National Security Positions” (SF 86), and a supplement to SF 86 (“86 Supplement”). The clearance process often includes a background investigation conducted by the Federal Bureau of Investigation (FBI), which prepares a report that is delivered to the White House. It also includes a review of financial disclosure materials by the Office of Government Ethics (OGE) and an ethics official for the agency to which the candidate is to be nominated. If conflicts of interest are found during the background investigation, OGE and the agency ethics officer may work with the candidate to mitigate the conflicts. At the completion of the clearance process, the nomination is ready to be submitted to the Senate. The president signs a parchment officially nominating the individual, which is sealed in a special envelope with wax and hand-delivered to the Senate while it is in session.
2. In the second stage, the Senate alone determines whether or not to confirm a nomination. The Senate’s action on a nomination varies, depending largely on the importance of the position involved, existing political circumstances, and policy implications. Many presidential appointees are confirmed routinely by the Senate, without public debate. Other appointees receive more attention from Congress and the media through hearings, investigations, and floor debate. Historically, the Senate has shown particular interest in nominees’ views and how they are likely to affect public policy. Two other factors have sometimes affected the examination of a nominee’s personal and professional qualities: whether the President’s party controlled the Senate and the degree to which the President became involved in supporting the nomination. Some nominations are sent straight to the full Senate, but much of the Senate confirmation process occurs at the committee level. Administratively, nominations are received by the Senate executive clerk, who usually arranges for the referral of the nominations to committee, according to the Senate rules and precedents.
The committee reviews it and issues a report (and sometimes grills candidates in a hearing which provides a public forum to discuss a nomination and any issues related to the program or agency for which the nominee would be responsible). Senators have used hearings to explore nominees’ qualifications, articulate policy perspectives, or raise related oversight issues. At the committee stage, there are four possible outcomes—the committee could make a favourable recommendation, an unfavourable one, withhold one or take no action. The nomination then moves to the Senate floor to be debated and then decided by a simple majority vote.
3. In the final stage of the appointment process, the confirmed nominee is given a commission signed by the President (which bears the Great Seal of the United States) and sworn into office. The President may sign the commission at any time after confirmation, at which time the appointment becomes official. Once the appointee is given the commission and sworn in, he or she has full authority to carry out the responsibilities of the office.