Senate Consideration of Presidential Nominations: Committee and Floor Procedure

Senate Consideration of Presidential
Nominations: Committee and Floor Procedure
Updated February 11, 2008
Elizabeth Rybicki
Analyst in American National Government
Government and Finance Division

Senate Consideration of Presidential Nominations:
Committee and Floor Procedure
Summary
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 will be updated as warranted, 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.” 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 and reviews 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 at all. It is more common for a committee to fail to take
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, stronger support may be
necessary. Cloture may be invoked to bring debate on a nomination to a close.
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 wants a nominee considered, he must submit a new
nomination to the Senate.

Contents
In troduction ......................................................1
Receipt and Referral................................................3
Committee Procedures..............................................4
Written Rules.................................................4
Investigations .................................................4
Hearings .....................................................5
Reporting ....................................................6
Floor Procedures..................................................8
Executive Calendar............................................8
Executive Session.............................................8
Taking Up A Nomination.......................................9
Holds .......................................................9
Consideration and Disposition...................................10
Recommital .............................................11
Reconsideration ..........................................11
Cloture .....................................................11
Nominations Returned to the President................................12
Recess Appointments..............................................13
Related CRS Reports..............................................13

Senate Consideration of Presidential
Nominations: Committee and
Floor Procedure
Introduction
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.”
The method by which the Senate provides advice and consent on presidential
nominations, referred to broadly as the confirmation process, serves several purposes.
First, largely through committee investigations and hearings, the confirmation
process allows the Senate to examine the qualifications of nominees and any
potential conflicts of interest. Second, Senators can influence policy through the
confirmation process, either by rejecting nominees or by extracting promises from
nominees before granting consent. Also, the Senate sometimes has delayed the
confirmation process in order to increase its influence with the executive branch on
unrelated matters.
Senate confirmation is required for several categories of government officials.
Military appointments and promotions make up the majority of nominations,
approximately 65,000 a Congress, and most are confirmed routinely. Each Congress
also considers close to 4,000 civilian nominations, and, again, many of them, such
as appointments to or promotions in the Foreign Service and the Public Health
Service, are routine. Civilian nominations considered by the Senate also include
federal judges and specified officers in executive departments, independent agencies,
and regulatory boards and commissions. Some categories of civilian nominations are
treated specifically and in greater depth in other Congressional Research Service
(CRS) reports.¹
Approximately 99% of presidential appointees are confirmed routinely by the
Senate. With tens of thousands of nominations each Congress, the Senate cannot
possibly consider them all in detail. A regularized process facilitates quick action on
thousands of government positions. The Senate may approve en bloc hundreds of
nominations at a time, especially military appointments and promotions.
Although most nominees are swiftly and routinely confirmed by the Senate, the
process also allows for close scrutiny of candidates when necessary. Each year, a few
hundred nominees to high-level positions are regularly subject to Senate
investigations and public hearings. Most of these are routinely approved, while a
small number of nominations are disputed and receive more attention from the media

¹ A list of related CRS products is provided at the end of this report.

and Congress. Judicial nominations, particularly Supreme Court appointees, are
generally subject to greater scrutiny than nominations to executive posts, partly
because judges serve for life.² Among the executive branch positions, nominees for
policymaking positions are more likely to be examined closely, and are slightly less
likely to be confirmed, than nominees for non-policy positions.³
There are several reasons for the high percentage of confirmations. Most
nominations and promotions are not to policymaking positions and are of less interest
to the Senate. In addition, some sentiment exists in the Senate that the selection of
persons to fill executive branch positions is largely a presidential prerogative.
Historically, the President has been granted wide latitude in the selection of his
Cabinet and other high-ranking executive branch officials.⁴
Another important reason for the high percentage of confirmations is that
Senators often are involved in the nomination stage. The President would prefer a
smooth and fast confirmation process, so he may decide that it is in his interest to
consult with Senators in his party prior to choosing a nominee. Senators most likely
to be consulted, typically by White House congressional relations staff, are Senators
from a nominee’s home state, leaders of the committee of jurisdiction, and leaders
of the President’s party in the Senate. Senators of the President’s party are
sometimes invited to express opinions or even propose candidates for federal
appointments in their own states.⁵ There is a long-standing custom of “senatorial
courtesy,” whereby the Senate will often decline to proceed on a nomination if a
home-state Senator expresses opposition.⁶ Positions subject to senatorial courtesy
include U.S. attorneys, U.S. marshals, and U.S. district judges.

² For more information on the consideration of Supreme Court nominations, see CRS Report
RL33225, Supreme Court Nominations, 1789 - 2006: Actions by the Senate, the Judiciary
Committee, and the President, by Denis Steven Rutkus and Maureen Bearden; CRS Report
RL33247, Supreme Court Nominations: Senate Floor Procedure and Practice, 1789-2006,
by Richard S. Beth and Betsy Palmer; CRS Report RL31989, Supreme Court Appointment
Process: Roles of the President, Judiciary Committee, and Senate, by Denis Steven Rutkus;
and CRS Report RL33118, Speed of Presidential and Senate Actions on Supreme Court
Nominations, 1900-2006, by R. Sam Garrett, Denis Steven Rutkus, and Curtis W. Copeland.
³ CRS Report 93-464, Senate Action on Nominations to Policy Positions in the Executive
Branch, 1981-1992, by Rogelio Garcia. (For a copy of this archived CRS report, contact
Elizabeth Rybicki).
⁴ Joseph P. Harris, The Advice and Consent of the Senate (New York: Greenwood Press
Publishers, 1968), p. 2; Richard Allan Baker, “Legislative Power Over Appointments and
Confirmations,” in Joel Silbey, ed., Encyclopedia of the American Legislative System (New
York: C. Scribner’s Sons, 1994), vol. 3, p. 1616.
⁵ “Report of the Task Force on the Confirmation Process,” Congressional Record, vol. 138
(February 4, 1992), pp. 1348-1352.
⁶ For more on senatorial courtesy and its history, see CRS Report RL31948, Evolution of the
Senate’s Role in the Nomination and Confirmation Process: A Brief History, by Betsy
Palmer.

Receipt and Referral
The President customarily sends nomination messages to the Senate in writing.
Once received, nominations are numbered by the executive clerk and read on the
floor. The clerk actually assigns numbers to the presidential messages, not to
individual nominations, so a message listing several nominations would receive a
single number. Except by unanimous consent, the Senate cannot vote on
nominations the day they are received, and most are referred immediately to
committees.
Senate Rule XXXI provides that nominations shall be referred to appropriate
committees “unless otherwise ordered.” In a few instances, by unanimous consent,
the Senate has confirmed nominations without referral to a committee, particularly
when the nominee is a current or former Senator. Formally the presiding officer, but
administratively the executive clerk’s office, refers the nominations to committees
according to the Senate’s rules and precedents.
The Senate rule concerning committee jurisdictions (Rule XXV) broadly defines
issue areas for committees, and the same jurisdictional statements generally apply to⁷
nominations as well as legislation. An executive department nomination can be
expected to be referred to the committee with jurisdiction over legislation concerning
that department or to the committee that handled the legislation creating the position.
In some instances, the committee of jurisdiction for a nomination has been set in⁸
statute.
The number of nominations referred to various committees differs considerably.
The Committee on Armed Services, which handles all military appointments and
promotions, receives the most. The two other committees with major confirmation
responsibilities are the Committee on Judiciary, with jurisdiction over the
confirmation of judges, U.S. attorneys, and U.S. marshals, and the Committee on
Foreign Relations, which considers ambassadorial and other diplomatic
appointments.
Occasionally, nominations are referred to more than one committee, either
jointly or sequentially. A joint referral might occur when two committees each have
a claim to a nomination. Both committees must report on the nomination before the
whole Senate can act on it, unless the Senate discharges one or both committees. If
two committees have unequal jurisdictional claims, then the nomination is more
likely to be sequentially referred. In this case, the first committee must report the
nomination before it is sequentially referred to the second committee. The second

⁷ For a list of appointee positions requiring Senate confirmation and the committees to
which they are referred as of October 27, 2003, see CRS Report RL30959, Presidential
Appointee Positions Requiring Senate Confirmations and Committees Handling
Nominations, by Maureen Bearden, Henry B. Hogue, and Terrence L. Lisbeth.
⁸ For example, nominations of two members of the Thrift Depositor Protection Oversight
Board are referred to the Committee on Banking, Housing, and Urban Affairs (12 U.S. C.
1441a). Nominations of the United States trade representative and deputy United States
trade representative are referred to the Committee on Finance (19 U.S.C. 2171).

referral often is subject to a requirement that the committee report within a certain
number of days. Typically, nominations are jointly or sequentially referred by
unanimous consent. Sometimes the unanimous consent agreement applies to all
future nominations to a position or category of positions.⁹
Committee Procedures
Written Rules
Most Senate committees that consider nominations have written rules
concerning the process. Although committee rules vary, most contain standards
concerning information to be gathered from a nominee. Many committees expect a
biographical resumé and some kind of a financial statement listing assets and
liabilities. Some specify the terms under which financial statements will or will not
be made public.
Committee rules also frequently contain timetables outlining the minimum
layover required between committee actions. A common timing provision is a
requirement that nominations be held for one or two weeks before the committee
proceeds to a hearing or a vote, permitting Senators time to review a nomination
before committee consideration. Other committee rules specifically mandate a delay
between steps of the process, such as the receipt of pre-hearing information and the
date of the hearing, or the distribution of hearing transcripts and the committee vote
on the nomination. Some of the written rules also contain provisions for the rules to
be waived by majority vote, by unanimous consent, or by the chair and the ranking
minority member.¹⁰
Investigations
Committees often gather and review information about a nominee either before
or instead of a formal hearing. Because the executive branch acts first in selecting
a nominee, congressional committees are sometimes able to rely partially on any field
investigations and reports conducted by the Federal Bureau of Investigation (FBI).
Records of FBI investigations are provided only to the White House, although a
report or a summary of a report may be shared, with the President’s authorization,
with Senators on the relevant committee. The practices of the committees with
regard to FBI materials vary. Some rarely if ever request them. On other
committees, the chair and ranking member review any FBI report or summary, but
on some committees these materials are available to any Senator upon request.
Committee staff usually do not review FBI materials.

⁹ See, for example,”Joint Referral of Department of Energy Nominations,” Congressional
Record, vol. 136 (June 28, 1990), pp. 16573-16574.
¹⁰ U.S. Congress, Senate Committee on Rules and Administration, Authority and Rules of
Senate Committees, 109^th Cong., 1^st sess., S.Doc. 109-9 (Washington: GPO, 2005).

Almost all nominees are also asked by the Office of the Counsel to the President
to complete an “Executive Personnel Financial Disclosure Report, SF-278,” which
is reviewed and certified by the relevant agency as well as the Director of the Office
of Government Ethics. The documents are then forwarded to the relevant committee,
along with opinion letters from ethics officers in the relevant agency and the director
of the Office of Government Ethics. In contrast to FBI reports, financial disclosure
forms are made public. All committees review financial disclosure reports and some
make them available in committee offices to Members, staff, and the public.
To varying degrees, committees also conduct their own information-gathering
exercises. Most committees have their own financial disclosure and personal
background forms that a nominee must complete. Some committees, after reviewing
responses to their standard questionnaire, might ask a nominee to complete a second
questionnaire. Committees frequently require that written responses to these
questionnaires be submitted before a hearing is scheduled. The Committee on the
Judiciary sends form letters, sometimes called “blue slips,” to Senators from a
nominee’s home state to determine whether they support the nomination. The
Committee on the Judiciary also has its own investigative staff. The Committee on
Rules and Administration handles relatively few nominations and conducts its own
investigations, sometimes with the assistance of the FBI or the General
Accountability Office (GAO).
It is not unusual for nominees to meet with committee staff prior to a hearing.
High-level nominees may meet privately with Senators. Generally speaking, these
meetings, sometimes initiated by the nominee, serve basically to acquaint the
nominee with the Members and committee staff, and vice versa. They occasionally
address substantive matters as well. A nominee also might meet with the
committee’s chief counsel to discuss the financial disclosure report and any potential
conflict-of-interest issues.
Hearings
Approximately half of all civilian appointees are confirmed without a hearing.¹¹
All committees that receive nominations do hold hearings on some nominations, and
the likelihood of hearings varies with the importance of the position and the
workload of the committee. The Committee on the Judiciary, for example, which
receives a large number of nominations, does not usually hold hearings for U.S.
attorneys, U.S. marshals, or members of part-time commissions. The Committee on
Agriculture, Nutrition, and Forestry and the Committee on Energy and Natural
Resources, on the other hand, typically hold hearings on most nominations that are
referred to them. Committees often combine related nominations into a single
hearing.

¹¹ The estimate excludes military appointees as well as civilian appointees usually submitted
on lists to the Senate. Civilian nominations usually submitted on lists include appointments
to, and promotions in, the Coast Guard, Foreign Service, National Oceanic and Atmospheric
Administration, and Public Health Service.

The length and nature of hearings varies. One or both home-state Senators will
often introduce a nominee. The nominee typically testifies at the hearing, and
occasionally the committee will invite other witnesses, including Members of the
House of Representatives, to testify as well. Some hearings function as routine
welcomes, while others are directed at influencing the policy program of an
appointee. In addition to policy views, hearings might address the nominee’s
qualifications and potential conflicts of interest. Senators also might take the
opportunity to ask questions of particular concern to them or their constituents.
Committees sometimes send questions to nominees in advance of a hearing and
ask for written responses. Nominees also might be asked to respond in writing to
additional questions after a hearing. Especially for high-level positions, the
nomination hearing may be only the first of many times an individual will be asked
to testify before a committee. Therefore, the committee often gains a commitment
from the nominee to be cooperative in future oversight activities of the committee.¹²
Hearings, under Senate Rule XXVI, are open to the public unless closed by
majority vote for one of the reasons specified in the rule. Witness testimony is
sometimes made available online through the website of the relevant committee and
also through several commercial services, including Congressional Quarterly and
Lexis-Nexis. Most committees print the hearings, although no rule requires it. The
number of Senators necessary to constitute a quorum for the purpose of taking
testimony varies from committee to committee, but it is usually smaller than a
majority of the membership.¹³
Reporting
A committee considering a nomination has four options. It may report the
nomination to the Senate favorably, unfavorably, or without recommendation, or it
may choose to take no action at all. It is more common for a committee to fail to take
action on a nomination than to report unfavorably. Committees occasionally report
a nomination favorably, subject to the commitment of the nominee to testify before
a Senate committee. Sometimes, committees choose to report a nomination without
recommendation. Even if a majority of Senators on a committee do not agree that
a nomination should be reported favorably, a majority might agree to report a
nomination without a recommendation in order to permit a vote by the whole Senate.
It is rare for the full Senate to consider a nomination if a committee chooses not to
report it and the committee is not discharged by unanimous consent. The practice of
discharging a committee of the consideration of a nomination is discussed below.
The timing of a vote to report a nomination varies in accordance with committee
rules and practice. Most committees do not vote to report a nomination on the same
day that they hold a hearing, but instead wait until the next meeting of the committee.

¹² Roger H. Davidson and Walter J. Oleszek, Congress and Its Members, 7^th ed.
(Washington: CQ Press, 2000), p. 314.
¹³ For more details concerning hearings, see CRS Report 98-337, Senate Committee
Hearings: Scheduling and Notification, by Betsy Palmer, and CRS Report 98-392, Senate
Committee Hearings: Witness Testimony, by Betsy Palmer.

Senate Rule XXVI, clause 7(a)(1) requires that a quorum for making a
recommendation on a nomination consist of a majority of the membership of the
committee. In most cases, the number of Senators necessary to constitute a quorum
for making a recommendation on a nomination to the Senate is the same that the
committee requires for reporting a measure. Every committee reports a majority of
nominations favorably.
Most of the time, committees do not formally present reports on nominations
on the floor of the Senate. Instead, a Senator, typically the committee chair, informs
the legislative clerk stationed at the desk of the committee’s decision. The executive
clerk then arranges for the nomination to be printed in the Congressional Record and
placed on the Executive Calendar. If a report were presented on the floor, it would
have to be done in executive session. Executive session and the Executive Calendar
will be discussed in the next section. According to Senate Rule XXXI, the Senate
cannot vote on a nomination the same day it is reported except by unanimous
consent.¹⁴
Although very few nominations proceed without the support of a committee,
chamber rules make it possible for the full Senate to consider a nomination a
committee does not report. Technically, Senate Rule XVII permits any Senator to
submit a motion or resolution that a committee be discharged from the consideration
of a subject referred to it. A motion to discharge a committee from the consideration
of a nomination is, like all business concerning nominations, in order only in
executive session.¹⁵ If there is an objection to the motion to discharge, it must lie
over until the next executive session on another day. It is fairly common for
committees to be discharged from noncontroversial nominations by unanimous
consent, often with the support of the committee, as a means of simplifying the
process. It is far less common for Senators to attempt to discharge a committee from
a nomination by motion or resolution.¹⁶

¹⁴ The reference in the rule to a “day” refers to a calendar day, not a legislative day. See
Floyd M. Riddick and Alan S. Frumin, Riddick’s Senate Procedure: Precedents and^st^nd
Practices, 101 Cong., 2 sess., S.Doc. 101-28 (Washington: GPO, 1992), p. 943. A
legislative day begins the first time the Senate meets after an adjournment and ends with the
Senate adjourns again. A legislative day is not necessarily a calendar day because the
Senate does not always adjourn prior to the end of a calendar day.
¹⁵ Floyd M. Riddick and Alan S. Frumin, Riddick’s Senate Procedure: Precedents and
Practices, 101^st Cong., 2^nd sess., S. Doc. 101-28 (Washington: GPO, 1992), p. 944.
¹⁶ For example, in 2003, then-Majority Leader Bill Frist submitted four resolutions to
discharge the Judiciary Committee from further consideration of four U.S. Circuit Judge
nominations. In each case, a Senator objected to immediate consideration of the resolution,
and all four resolutions were placed on the Executive Calendar. No further action was taken
the resolutions to discharge. See “Resolutions Placed on the Executive
Calendar,”Congressional Record, vol. 149 (July 7, 2003), pp. 16949-16950.

Floor Procedures
The Senate handles executive business, which includes both nominations and
treaties, separately from its legislative business. All nominations reported from
committee, regardless of whether they were reported favorably, unfavorably, or
without recommendation, are listed on the Executive Calendar, a separate document
from the Calendar of Business, which lists pending bills and resolutions. Usually,
the majority leader schedules the 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.
Executive Calendar
After a committee reports a nomination or is discharged from considering it, the
nomination is assigned a number by the executive clerk and placed on the Executive
Calendar. The list of nominations in the Executive Calendar includes basic
information such as the name and office of the nominee, the name of the previous
holder of the office, and whether the committee reported the nomination favorably,
unfavorably, or without recommendation. Long lists of routine nominations are
printed in the Congressional Record and identified only by a short title in the
Executive Calendar, such as “Foreign Service nominations (84) beginning John F.
Aloia, and ending Paul G. Churchill.” In addition to reported nominations and
treaties, the Executive Calendar contains the text of any unanimous consent
agreements concerning executive business.
The Executive Calendar is distributed to Senate personal offices and committee
offices when there is business on it. It is also available to congressional personnel
online by following the link to legislative and executive calendars on the website of
the Legislative Information System of the U.S. Congress [http://www.congress.gov/].
Executive Session
Business on the Executive Calendar, which consists of nominations and treaties,
is considered in executive session. In contrast, all measures and matters associated
with lawmaking are considered in legislative session. Until 1929 executive sessions
were also closed to the public, but now they are open unless ordered otherwise by the
Senate.
The Senate usually begins the day in legislative session and enters executive
session either by a non-debatable motion or, far more often, by unanimous consent.
Only if the Senate adjourned or recessed while in executive session would the next
meeting automatically open in executive session. The motion to go into executive
session can be offered at any time, is not debatable, and cannot be laid upon the table.
All business concerning nominations, including seemingly routine matters such
as requests for joint referral or motions to print hearings, must be done in executive
session. In practice, Senators often make such motions or unanimous consent
requests “as if in executive session.” These usually brief proceedings during a
legislative session do not constitute an official executive session. In addition, at the

start of each Congress, the Senate adopts a standing order, by unanimous consent,
that allows the Senate to receive nominations from the President and for them to be
referred to committees even on days when the Senate does not meet in executive
session.
Taking Up A Nomination
If the Senate simply resolves into executive session, the business immediately
pending is the first item on the Executive Calendar. A motion to proceed to another
matter on the calendar would be debatable and subject to a filibuster.
In practice, the Senate expedites the process by specifying the business to be
considered as part of the motion or unanimous consent request to go into executive
session. The majority leader, by custom, effectively determines when or whether a
nomination will be called up for consideration. For example, the majority leader may
move or ask unanimous consent to “immediately proceed to executive session to
consider the following nomination on the executive calendar....” By precedent, the
motion to go into executive session to take up a specified nomination is not
debatable.¹⁷ The nomination itself, however, is debatable.
It is not in order for a Senator to move to consider a nomination that is not on
the calendar, and, except by unanimous consent, a nomination on the calendar cannot
be taken up until it has been on the calendar at least one day (Rule XXXI, clause 1).
In other words, a nomination reported and placed on the calendar on a Monday can
be considered on Tuesday, even if it is the same legislative day.¹⁸
Holds
A hold is a request by a Senator to his or her party leader to prevent or delay
action on a nomination or a bill. Holds are not mentioned in the rules or precedents
of the Senate, and they are enforced only through the agenda decisions of party
leaders. A recent directive of the Senate aims to ensure that any Senator who places
a hold on any matter (including a nomination) make public his or her objection to the¹⁹
matter.

¹⁷ Floyd M. Riddick and Alan S. Frumin, Riddick’s Senate Procedure, 101^st Cong., 2^nd sess.,
S. Doc. 101-28 (Washington: GPO, 1992), p. 941.
¹⁸ The reference in Senate Rule XXXI, clause 1 to a “day” refers to a calendar day, not a
legislative day. See Floyd M. Riddick and Alan S. Frumin, Riddick’s Senate Procedure:^st^nd
Precedents and Practices, 101 Cong., 2 sess., S.Doc. 101-28 (Washington: GPO, 1992),
p. 943. A legislative day begins the first time the Senate meets after an adjournment and
ends with the Senate adjourns again. A legislative day is not necessarily a calendar day
because the Senate does not always adjourn prior to the end of a calendar day.
¹⁹ For more information on the directive of the Senate concerning holds, see CRS Report
RL34255, Senate Policy on “Holds”: Action in the 110th Congress, by Walter J. Oleszek.
For more information concerning the history, types, and potency of holds, see CRS Report
RL31685, Proposals to Reform “Holds” in the Senate, by Walter J. Oleszek.

The effectiveness of a hold ultimately is grounded in the power of the Senator
placing the hold to filibuster the nomination and the difficulty of invoking cloture.
The rules governing cloture in relation to nominations are discussed in a later section
of this report. In another sense, however, holds are connected to the Senate traditions
of mutual deference, since they may have originated as requests for more time to
examine a pending nomination or bill.
Senators place holds on nominations for a number of reasons. One common
purpose is to give a Senator more time to review a nomination or to consult with the
nominee. Senators may also place holds because they disagree with the policy
positions of the nominee. Senators have also admitted to using holds in order to gain
concessions from the executive branch on matters not directly related to the
nomination. Depending on the timing of the hold and the support for the nomination,
a hold can kill a nomination by preventing it from ever coming to the Senate floor.
Consideration and Disposition
The question before the Senate when a nomination is taken up is “will the
Senate advise and consent to this nomination?” The Senate can approve, reject, or
recommit a nomination.
Most nominations are brought up by unanimous consent and approved without
objection; routine nominations often are called up and approved all together, or en
bloc. A small proportion of nominations, generally to higher-level positions, can be
controversial. When there is debate on a nomination, the chair of the committee
usually makes an opening speech. For positions within a state, Senators from the
state may wish to speak on the nominee, particularly if they were involved in the
selection process. While floor debate is rarely lengthy, there are no time limits
except when conducted under cloture or a unanimous consent agreement.²⁰
A majority of Senators present and voting, a quorum being present, is required
to approve a nomination. Because nominations are vulnerable to filibusters,
however, stronger support may be necessary in order to invoke cloture, as discussed
further below. The majority leader is unlikely to bring a nomination to the floor
unless it is expected to be approved.

²⁰ In the 109^th Congress, some Senators proposed changing Senate procedures for limiting
debate on nominations. Procedures were not changed, but in response to the effort a
bipartisan group of Senators entered into a “Memorandum of Understanding on Judicial
Nominations” on May 23, 2005. The memorandum did not change the procedures of the
Senate described in this report; it was a “commitment” that “nominees should only be
filibustered under extraordinary circumstances” and an agreement “to oppose ... any
amendment to or any interpretation of the Rules of the Senate that would force a vote on a
judicial nomination by means other than unanimous consent or Rule XXII” [the cloture
rule]. For more information on this bipartisan agreement, see CRS Report RS22208, The
“Memorandum of Understanding”: A Senate Compromise on Judicial Filibusters, by
Walter J. Oleszek. For more information on the proposed procedural change, see CRS
Report RL32843, ‘Entrenchment’ of Senate Procedure and the ‘Nuclear Option’ for
Change: Possible Proceedings and Their Implications, by Richard S. Beth.

After the Senate acts on a nomination, the secretary of the Senate attests to a
resolution of confirmation or disapproval and transmits it to the White House.
Recommital. In addition to approving and rejecting a nomination, the Senate
has the option of sending a nomination back to a committee for further consideration.
Although infrequently used, the motion to recommit is available and may allow a
panel to reconsider its recommendation when information concerning a nominee
comes to light after the committee has reported to the full Senate. The motion to
recommit is debatable, and so may be subjected to a filibuster.
Nominations recommitted may be re-reported and have the same status as when
originally reported. If not re-reported, however, the Senate will be unable to vote on
recommitted nominations, unless the committee is discharged. The Senate may vote
to recommit a nomination with instructions to re-report, perhaps by a set date or after
gathering more information on the nomination.
A motion to recommit a nomination is not in order if a unanimous consent
agreement to vote on the confirmation at a specified hour is in effect. Furthermore,
groups of nominations cannot be recommitted without unanimous consent.
Reconsideration. According to Senate Rule XXXI, any Senator who voted
with the majority has the option of moving to reconsider a vote on the nomination.
The motion to reconsider is in order on the day of the vote or the next two days the
Senate meets in executive session. The motion is made in executive session or, by
unanimous consent, “as in executive session.” Only one motion to reconsider is in
order on each nomination. Often, the motion to reconsider is laid upon the table, by
unanimous consent, shortly after the vote on the nomination. This action prevents
any subsequent attempt to reconsider.
Senate Rule XXXI requires that the secretary of the Senate wait until the time
for moving to reconsider has expired before sending notice to the President; in
practice, however, notice is usually sent immediately, permitted by unanimous
consent. If a nomination has already been sent to the President, a motion to
reconsider is accompanied by a request to the President to return the nomination. If
the President does not comply with the request, the Senate cannot reconsider the
nomination.²¹
Cloture
In most instances, the Senate imposes no limitation on floor debate on a
nomination. As many Senators who are interested can speak on a nomination for as
long as they want. If necessary, however, Senate Rule XXII provides a means to
bring debate on a nomination to a close.
Rule XXII, known as the cloture rule, applies to any debatable question
including bills, resolutions, amendments, conference reports, nominations, and

²¹ Floyd M. Riddick and Alan S. Frumin, Riddick’s Senate Procedure, 101^st Cong., 2^nd
sess., S. Doc. 101-28 (Washington: GPO, 1992), p. 948.

various debatable motions. The rule operates the same way on nominations as it does
on legislation and other debatable questions. Because the motion to go into executive
session and take up a specific nomination is not debatable, however, it is not
necessary, as it may be in the case of legislation, to file cloture both on a motion to
take up a matter and on the matter itself.
Under the terms of Rule XXII, at least 16 Senators sign a cloture motion, also
called a cloture petition, to end debate on a pending nomination. The motion
proposed is “to bring to a close the debate upon [the pending nomination].” A
Senator can interrupt a Senator who is speaking to present a cloture motion. Cloture
may only be moved on a question that is pending before the Senate; therefore, absent
unanimous consent, the Senate must be in executive session and considering the
nomination when the motion is filed. After the clerk reads the motion, the Senate
returns to the business it was considering before the presentation of the petition.
Unless a unanimous consent agreement provides otherwise, the Senate does not
vote on the cloture motion until the second day after the day it is presented; if the
motion was presented on a Monday, the Senate would act on it on Wednesday. One
hour after the Senate has convened on the day the petition “ripened,” the presiding
officer can interrupt the proceedings during an executive session to present a cloture
motion for a vote. If the Senate is in legislative session when the time arrives for
voting on the cloture motion, it proceeds into executive session prior to taking action
on the cloture petition.
According to Rule XXII, the presiding officer first directs the clerk to call the
roll to ascertain that a quorum is present, although this requirement is often waived
by unanimous consent. Senators then vote either yea or nay on the question: “Is it
the sense of the Senate that the debate shall be brought to a close?” It takes
three-fifths of the Senate, or 60 Senators if there are no vacancies, to invoke cloture
on a nomination. Once cloture is invoked, there can be a maximum of 30 hours of
consideration, including debate and time consumed by quorum calls, parliamentary
inquiries, and all other proceedings.²²
Although Senate rules have permitted cloture to be moved on nominations since
1949, cloture was not sought on a judicial nomination until 1968 or on an executive
branch nomination until 1980.²³
Nominations Returned to the President
Nominations that are not confirmed or rejected are returned to the President at
the end of a session or when the Senate adjourns or recesses for more than 30 days
(Senate Rule XXXI, paragraph 6). If the President still wants a nominee considered,

²² For full details on the cloture process, see CRS Report RL30360, Filibusters and Cloture
in the Senate, by Richard S. Beth and Stanley Bach.
²³ For data on the nominations subjected to cloture attempts through 2004 , see CRS Report
RL32878, Cloture Attempts on Nominations, by Richard S. Beth and Betsy Palmer.

he must submit a new nomination to the Senate. The Senate can, however, waive
this rule by unanimous consent, and it often does to allow nominations to remain “in
status quo” between the first and second sessions of a Congress. The majority leader
or his designee also may exempt specific nominees by name from the unanimous
consent agreement, allowing them to be returned during the recess or adjournment.
Recess Appointments
The Constitution, in Article II, Section 2, grants the President the authority to
fill temporarily vacancies that “may happen during the Recess of the Senate.” These
appointments do not require the advice and consent of the Senate; the appointees
temporarily fill the vacancies without Senate confirmation. In most cases, recess
appointees have also been nominated to the positions to which they were appointed.
Furthermore, when a recess appointment is made, the President usually submits a
new nomination to the Senate in order to comply with a provision of law affecting
the pay of recess appointees (5 U.S.C. 5503(a)). Recess appointments have²⁴
sometimes been controversial and have occasionally led to inter-branch conflict.
Related CRS Reports
CRS Report RL32684. Changing Senate Rules or Procedures: The ‘Constitutional’
or ‘Nuclear’ Option, by Betsy Palmer.
CRS Report RL32102. Constitutionality of a Senate Filibuster of a Judicial
Nomination, by Todd B. Tatelman.
CRS Report RL32878. Cloture Attempts on Nominations, by Richard S. Beth and
Betsy Palmer.
CRS Report RL31948. Evolution of the Senate’s Role in the Nomination and
Confirmation Process: A Brief History, by Betsy Palmer.
CRS Report RL32843. ‘Entrenchment’ of Senate Procedure and the ‘Nuclear
Option’ for Change: Possible Proceedings and Their Implications, by Richard
S. Beth.
CRS Report RL33953. Nominations to Article III Lower Courts by President
George W. Bush During the 110th Congress, by Denis Steven Rutkus, Kevin
M. Scott, and Maureen Bearden.

²⁴ For more information on recess appointments, see CRS Report RS21308, Recess
Appointments: Frequently Asked Questions, by Henry B. Hogue; CRS Report RL33009,
Recess Appointments: A Legal Overview, by T. J. Halstead; and CRS Report RL33310,
Recess Appointments Made by President George W. Bush, January 20, 2001 - December 31,

2007, by Henry B. Hogue and Maureen Bearden.

CRS Report 98-510. Judicial Nominations by President Clinton During the 103^rd -

106^th Congresses, by Denis Steven Rutkus.

CRS Report RL31635. Judicial Nomination Statistics: U.S. District and Circuit
Courts, 1977-2003, by Denis Steven Rutkus and Mitchel A. Sollenberger.
CRS Report RL30959, Presidential Appointee Positions Requiring Senate
Confirmations and Committees Handling Nominations, by Maureen Bearden,
Henry B. Hogue, and Terrence L. Lisbeth.
CRS Report RL33783. Presidential Appointments to Full-time Positions in
Executive Departments During the 108^th Congress, 2003-2004, by Henry B.
Hogue, Maureen Bearden, and Dana Ely.
CRS Report RL32742. Presidential Appointments to Full-Time Positions on
Regulatory and Other Collegial Boards and Commissions, 108th Congress, by
Henry B. Hogue, Maureen Bearden, Kathleen M. Doddridge, Judith B.
Frazier-Thompson, Julissa Gomez-Granger, and Jennifer E. Manning.
CRS Report RL32906. Presidential Appointments to Full-Time Positions in
Independent and Other Agencies During the 108^th Congress, by Henry B.
Hogue, Maureen Bearden, and Dana Ely.
CRS Report RL33009. Recess Appointments: A Legal Overview, by T. J. Halstead.
CRS Report RL33310. Recess Appointments Made by President George W. Bush,
January 20, 2001 - December 31, 2007, by Henry B. Hogue and Maureen
Bearden.
CRS Report RS21308. Recess Appointments: Frequently Asked Questions, by Henry
B. Hogue.
CRS Report RL33118. Speed of Presidential and Senate Actions on Supreme Court
Nominations, 1900-2006, by R. Sam Garrett, Denis Steven Rutkus, and Curtis
W. Copeland.
CRS Report RL31989, Supreme Court Appointment Process: Roles of the President,
Judiciary Committee, and Senate, by Denis Steven Rutkus.
CRS Report RL33225. Supreme Court Nominations, 1789 - 2006: Actions by the
Senate, the Judiciary Committee, and the President, by Denis Steven Rutkus
and Maureen Bearden.
CRS Report RL33247. Supreme Court Nominations: Senate Floor Procedure and
Practice, 1789-2006, by Richard S. Beth and Betsy Palmer.
CRS Report RL31171. Supreme Court Nominations Not Confirmed, 1789-2007, by
Henry B. Hogue.

CRS Report RL31989. Supreme Court Appointment Process: Roles of the President,
Judiciary Committee, and Senate, by Denis Steven Rutkus.
CRS Report RS21412. Temporarily Filling Presidentially Appointed,
Senate-Confirmed Positions, by Henry B. Hogue.
CRS Report RL31868. U.S. Circuit and District Court Nominations by President
George W. Bush During the 107^th-109^th Congresses, by Denis Steven Rutkus,
Kevin M. Scott, and Maureen Bearden.
CRS Report RS21734. U.S. Circuit and District Court Nominations: Rejections by
the Senate and Votes by the Senate Judiciary Committee Other Than To Report
Favorably, 1939-2006, by Kevin M. Scott and Denis Steven Rutkus.