Senate Confirmation FAQ

When did the process of confirming a presidential appointee go from nice-nice to knife fight?

While the vast majority of people requiring Senate confirmation get it, ours is not the only time that the system has been less than civil. James Madison had a contentious time with the Senate over some Cabinet and Supreme Court appointments, as did Andrew Jackson. During the 19th century, the Senate rejected 35 percent of Supreme Court nominations. Scholars cite a number of turning points leading to today’s irritable process. Watergate ushered in far more ethics vetting with extreme scrutiny of possible conflicts of interest, particularly financial. The fact that Congress and the White House are now often of different parties has driven the Senate to play a larger role in shaping the executive branch. And the rejection of Reagan Supreme Court nominee Robert Bork in 1987, after a fierce campaign by interest groups opposing his nomination, led to the modern media era of bruising nominations. In the last years of the Clinton administration, the “consent” part of the Senate confirmation process almost completely broke down–judicial and diplomatic appointees could barely get the Senate committees to schedule hearings on their nominations.

Where does the Senate get the power to decide on certain presidential appointees?

Article II, Section 2 of the Constitution says the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for. …” There are also other legal statutes and executive orders that govern the process.

How many people require Senate approval?

About 1,000, from Cabinet secretaries to heads of commissions to U.S. attorneys. (For more on whom the president can appoint, see this Jan. 11 Explainer.)

How many senators have to vote to approve a nomination?

A simple majority–that is, one more in favor than opposed. If the Senate, divided along party lines, splits 50-50 on any nomination, the vice president-to-be, Dick Cheney, can cast the tie-breaker. The majority of nominations, however, don’t come up for a roll call vote but are approved by unanimous consent–agreement that does not require a recording of individual votes. It has become custom, however, given the importance of the positions, for Cabinet members and Supreme Court justices to get a roll call vote. And if a nomination is controversial, opposing senators will request a roll call in order to register their objection.

Besides voting down a nomination, how else can the Senate block it?

Through filibusters or the more common “hold.” Filibusters are rarely used, but in 1995 Clinton’s nomination of Dr. Henry Foster for surgeon general died due to a Republican filibuster. More common are the mysterious Senate holds. This process, not spelled out in the Senate rules, allows any senator, for no given reason, to anonymously put on hold a nomination by simply asking his or her party leader for the delay. It was originally a sort of courtesy accorded to senators who wanted a vote delayed briefly due to scheduling problems or who needed time to gather more information. In recent years it has turned into a method for permanent obstruction. Holds can be put on for purposes that have nothing to do with a nominee as a way of forcing the administration to accommodate a senator’s wishes on another matter. In recent years there have been 30 or more holds at a given time on nominees for judicial, ambassadorial, and other posts. A recent reform is requiring identification of the senator requesting the hold, but that has not always been forthcoming.

How many Cabinet appointees have been voted down by the Senate?

Nine. The most recent was the nomination of former Sen. John Tower, who was rejected by his former colleagues to be George H.W. Bush’s secretary of defense.

How onerous is the process of getting confirmed?

Very. Nominees have to fill out numerous, often duplicative forms, such as the White House’s “Personal Data Statement Questionnaire” and the Office of Government Ethics’ Standard Form 278, a comprehensive look at a nominee’s financial dealings and employment background. For people who get confirmed, the 278 has to be updated annually. Together the forms ask more than 230 questions on everything from finances to foreign travel to personal matters. The vetters want to know everything from the date and place of birth of one’s in-laws (for lurking commie influence), to history of mental health counseling, to employment of domestic help, to details of drug and alcohol use, to all-purpose providing of information that could “be a possible source of embarrassment to you, your family, or the president.” On the questionnaire for national security clearance, people are asked if they’ve ever been charged with a felony offense or if they have used illegal drugs in the past seven years or since age 16, whichever is shorter. (During the campaign George W. Bush alluded to the fact that he could give satisfactory answers to the drug questions with the seven-year statute.) But the White House counsel’s office asks about illegal drug use going back to age 18.

Do the president and vice president have to answer questions about being arrested for, say, drunken driving or what illegal substances they might have used in an extended period they label their youth?

No. While the president and vice president have to answer certain financial questions, they do not have to answer the more personal questions. The process of running for the presidency is supposed to clear up these questions.

If you lie on any of these forms and then get confirmed, can you get in trouble later?

What do you think? Clinton Secretary of Housing and Urban Development Henry Cisneros lied about payments to his mistress during his FBI investigation. That formed the basis for a later indictment. Also, the Linda Chavez debacle indicates it’s not a good idea to go to former neighbors and “refresh” their memories by asking them not to remember things about you.

Who gets a full-field FBI background investigation?

All presidential appointees requiring Senate approval (as well as some others). Dwight Eisenhower, in 1953, issued an executive order requiring it.

If Chief Justice William Rehnquist retires and Bush appoints Supreme Court Associate Justice Antonin Scalia (recently nicknamed “Anthony” and “Antonio” by Bush) to the position, will he have to go through another Senate confirmation hearing?

Yes, even a sitting justice has to go through a new confirmation to become chief. In 1968 Lyndon Johnson decided to elevate Associate Justice Abe Fortas to chief. Senators angry with Fortas’ liberal positions and closeness to Johnson filibustered the nomination, and Fortas withdrew. He returned to the court but resigned a year later when stories about his financial dealings with a convicted stock swindler were published.

Next question?  

Explainer thanks Paul C. Light of the Brookings Institution and G. Calvin Mackenzie of Colby College. For more–much more–on the presidential appointment process, see this Brookings site.