How Senate Confirmations Work


Zoë Baird during her confirmation hearing in January 1993.
Zoë Baird during her confirmation hearing in January 1993.
Terry Ashe/Time Life Pictures/Getty Images

January 1993 was a truly bad month for Zoë Baird. The 40-year-old Connecticut attorney had just been tapped for appointment to attorney general by newly elected president Bill Clinton. The future was bright for Baird. Should the Senate confirmation hearing go smoothly (and there was no indication it wouldn't), Zoë Baird would become the United States' first female attorney general. The hearings, it turned out, would not go smoothly.

Following the election, after Baird knew Clinton was planning on installing her in his White House, she fired a Guatemalan couple who'd worked as her driver and housekeeper from 1990 to 1992. Both were illegal immigrants; they knew it, Baird knew it and, most importantly, the Clinton camp knew it. Baird had told her friend and Clinton's selected secretary of state, Warren Christopher, about her undocumented workers during a meeting in Little Rock, Ark. The Clinton transition team initially thought little about the matter. "Everybody does it," one aide later remarked [source: Smolowe].

The press immediately took collective issue with Baird's actions. On Jan. 14, the New York Times ran a front page story on Baird's hiring of illegal workers and the inherent tax evasion she'd committed by failing to file payroll taxes on the wages she paid the couple [source: Borelli]. Unfortunately, Baird's Senate confirmation hearing -- the legislative branch's means of vetting candidates for presidential appointments -- was already underway. In one day, Sen. Paul Simon of Illinois received more than 1,000 calls from his constituents, many demanding his vote against Baird's confirmation [source: Smolowe].

The public had spoken; Baird would not do as attorney general. Before the Senate could reject the nomination, however, she withdrew her name from consideration. It took President Clinton two more tries before the Senate confirmed Janet Reno as his administration's attorney general. It would take nearly nine months after the Baird debacle to fill all of Clinton's appointed positions [source: Light].

What's ironic is that the Senate confirmation process is essentially a simple one. Find out how easy the process should be on the next page.

How Senate Confirmations Should Work

Gen. David Petraeus during the 2008 Senate confirmation hearing on his appointment to head of U.S. Central Command.
Gen. David Petraeus during the 2008 Senate confirmation hearing on his appointment to head of U.S. Central Command.
Chip Somodevilla/Getty Images

At its core, the Senate confirmation process for presidential appointees is a straightforward one. The U.S. Constitution gives the president the power to appoint officials like Cabinet secretaries, Supreme Court justices and ambassadors with the "advice and consent of the Senate" [source: Cornell]. Interpretation of this power by earlier administrations expanded its scope to include a wide array of positions, from customs officials to military officers.

The framers of the Constitution established Senate approval of presidential appointment to check presidential power. An army of bureaucrats blindly supporting the president can lead to insulation of -- and unreasonable power inside -- the White House. With a Congressional review of those selected by the president to carry out his agenda, the legislative branch is granted input and, ultimately, the final word on nominees. A candidate who appears too partisan, unqualified or unwilling to work with the Senate may find himself or herself rejected for the position to which he or she was appointed. To protect the interests of the American people, the Senate holds confirmation hearings to examine candidates for presidential appointment.

To nominate an individual for a presidential appointment, the executive branch sends word of his choice to the Senate. In the beginning, the entire Senate considered the nomination. In the 19th century, however, the Senate began to vet nominees only among the specific Senate committees responsible for overseeing that particular position. The Judiciary Committee handles the attorney general and Supreme Court appointments, the Foreign Relations Committee handles ambassadorial appointments and so on.

Once the president selects a candidate, the FBI conducts an investigation on behalf of the executive branch. This report will only be released to Senate committees by presidential order, so committees usually rely on their own offices' investigations to vet candidates. Committees do, however, require nominees to fill out reams of paperwork to provide personal and financial background information that can take days or weeks to compile [source: Light]. The Senate can vote on an appointment the following day. However, this process usually takes much longer. Some low-level federal appointments, like those for customs officials and federal marshals, may pass quickly through the Senate.

When an obscure or unknown candidate appears politically harmless or is nominated for a lower-level position, the Senate generally adheres to the custom of senatorial courtesy. In these cases, the Senate defers to the opinion of the senators from the nominee's home state to confirm or reject.

Regardless of custom, a Senate committee's recommendation to the rest of the Senate on the appointment can go one of four ways: It can report favorably on the nomination, report unfavorably, choose not to report or take no action at all (leaving a nomination to languish).

After a committee reports on a nomination, the executive branch is notified. The nomination then is placed on the Senate's executive calendar for its consideration and debate. Ultimately, one final question is asked of the body: "Will the Senate advise and consent to this nomination?" By a simple majority (50 percent of the senators, plus one additional senator), the entire Senate rejects, confirms or takes no action on the nomination [source: Tong]. Nominations on which the Senate committee or the body as a whole takes no action are returned to the president when Congress adjourns. The president must resubmit the nomination once Congress reconvenes.

That's the simplest explanation of the Senate confirmation process. As with every legislative procedure, Senate confirmations have evolved over time. In the modern era, Senate confirmation hearings are subject to more media and public scrutiny than ever before.

Senate Confirmations in the Modern Era

Robert M. Gates during the 2006 hearing for his appointment to Secretary of Defense.
Robert M. Gates during the 2006 hearing for his appointment to Secretary of Defense.
Scott J. Ferrell/Congressional Quarterly/Getty Images

In the United States, Supreme Court justices attract the most attention from the Senate during the confirmation process. Justices are appointed for life; they leave their seats by death, by resignation or by retirement via impeachment. For this reason, the Senate is acutely interested in the political, legal and personal philosophies Supreme Court nominees hold. Cabinet secretaries bear only slightly less scrutiny.

These hearings can be arduous. If the Senate rejects the President's first choice for a position, he or she will generally submit another nominee and the process continues until that vacant position is filled. There are several circumstances under which vacancies can occur in appointed positions. An appointed official can be fired or retire from the position. The vast majority of vacant federal posts are the result of the transition from one presidency to another. High-ranking appointed positions in the executive branch expire by law after four years. Since most of these posts are filled by a president early in the administration, they expire at the end of a term, leaving them vacant for appointment by an incoming president.

An incoming president may choose to reappoint a person from the previous administration, as Democratic President-elect Barack Obama did in 2008. He nominated Republican President George W. Bush's Secretary of Defense, Robert M. Gates, during his transition into the White House. This is rare, however; presidents generally want their own people -- especially people from their own party -- to help carry out their agendas.

In 1929, the Senate officially opened confirmation hearings to the press and the public. As a result, confirmation hearings evolved from a process shared by an elite few to a public discussion on nominees and the issues raised by their nominations. These examinations can be uncomfortable for candidates. In 1987, President Ronald Reagan nominated conservative U.S. Court of Appeals judge Robert Bork for the Supreme Court. Bork's nomination sparked a months-long publicity campaign among supporters and opponents alike. Liberals feared Bork's conservative record and conservatives launched a campaign to portray Bork as a moderate [source: Lamar]. Celebrities and politicians took to the airwaves and newsprint to defend publicly or denounce Bork, who was ultimately rejected by the Senate. Bork's nomination created what may have been the first truly national dialogue over a presidential appointment.

Three years later, President George H.W. Bush nominated appeals court judge Clarence Thomas to the Supreme Court. News leaked during the hearings that a former colleague, Anita Hill, had alleged in a routine FBI investigation that Thomas had sexually harassed her repeatedly a decade earlier. Although her testimony had no legal bearing, Hill was allowed to testify at the hearings. Thomas vehemently denied the allegations and was ultimately confirmed. Because of the intense media scrutiny as well as Hill's poise and willingness to discuss the issue, the Clarence Thomas confirmation hearings are now generally credited with shedding light on the effects of sexual harassment [source: Beasley].

Ultimately, most presidential appointments are confirmed, but this figure isn't wholly representative of the obstacle course that is the presidential appointment process [source: Tong]. For example, it fails to include the countless nominees who, like Zoë Baird, withdrew their names in the face of public pressure or imminent rejection from the Senate. Over the course of U.S. history, Senate approval has become mired in political theater.

Problems with the Senate Confirmation Process

Fourth U.S. president James Madison caved to political pressure over his choice for secretary of state. The result? The War of 1812.
Fourth U.S. president James Madison caved to political pressure over his choice for secretary of state. The result? The War of 1812.
Stock Montage/Stock Montage/Getty Images

From the viewpoint of the executive branch, there's one inherent problem with the Senate confirmation process: The Senate can reject the president's nominees.

Over the years, successive presidents have learned how to make end runs around the Senate confirmation process by simply creating new federal positions. When George Washington took office in 1789, he made 120 nominations [source: U.S. Senate]. When George W. Bush took office in 2001, he made more than 2,000 [source: Light].

There are two kinds of appointments U.S. presidents can make: Senate-confirmed appointments and direct appointments that require no senatorial input. A Director of Central Intelligence appointment, for example, would require Senate approval, but an associate deputy director position would not. By elevating these lower-level positions, the president can nominate an obedient and uncontroversial candidate for a Senate-confirmed position, while placing his real choice in a lower position that wields tremendous authority. Here's but one example: In 2001, President George W. Bush directly appointed James Cason to be assistant deputy secretary of Agriculture. Bush's father, President George H.W. Bush, had failed to appoint Cason agriculture secretary during his tenure. The younger Bush circumvented the Senate by appointing Cason to a powerful but unconfirmed position [source: Light]. Actions like these have created what Brookings Institution fellow Paul C. Light calls a de facto subcabinet [source: Light].

The advent of low-level positions holding high-level power is not an entirely presidential creation; the Senate itself bears some of the blame. The Senate has helped slow the appointment process by using it as a stage for unrelated policy discussions and as a political tool of the executive branch.

For example, because Maryland senator Samuel Smith wanted his brother as secretary of state under James Madison in 1809, Madison's more qualified initial candidate, Treasury Secretary Albert Gallatin, was scuttled and Robert Smith was installed. Smith's lack of qualifications made him unable to stop the War of 1812, a war that John Quincy Adams later posited wouldn't have happened had Madison's original choice been approved [source: U.S. Senate].

This abuse of power is a long-standing tradition that continues today. When President George W. Bush took office in 2001, he found that North Carolina senator Jesse Helms had stalled the appointments of four of his Treasury Department nominees. Why would a Republican senator hamstring an incoming president -- from his own party, no less -- in such a manner? It turns out that Helms wanted two things: He wanted a recent free trade bill with Africa and the Caribbean rewritten to better protect the North Carolina textile industry, and he also wanted his own candidate installed as textile trade negotiator. He then placed holds on the nominees, effectively crippling the new administration's treasury department [source: WSJ]. Is this ethical, or even legal? Any senator can place a hold on a nomination for any reason until the executive branch gives the senator what he or she wants. The president does have a weapon in his or her arsenal to use if a committee takes no action. Presidents can make direct appointments to vacant posts when Congress is out of session. Called recess appointments, the appointee holds the post until Congress reconvenes.

While solutions have been posed to solve the problems with Senate confirmations -- from removing them from the public spotlight, to presidents actually seeking advice on candidates before submitting nominations -- none have been implemented [source: Van der Silk]. At its core, the Senate approval process for presidential appointments is an adversarial one, subject to the eternal struggle for power between governmental branches and the acrimony between political parties.

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