Senate Consideration of Presidential Nominations: Committee and Floor Procedure

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Senate Consideration of Presidential
~~May 13, 2021~~February 21, 2023
Nominations: Committee and Floor Procedure Elizabeth Rybicki
Article II, Section 2, of the Constitution provides that the President shall appoint officers of the Article II, Section 2, of the Constitution provides that the President shall appoint officers of the
Specialist on Congress and Specialist on Congress and
United States “by and with the Advice and Consent of the Senate.” This report describes the United States “by and with the Advice and Consent of the Senate.” This report describes the
the Legislative Process the Legislative Process
process by which the Senate provides advice and consent on presidential nominations, including process by which the Senate provides advice and consent on presidential nominations, including

receipt and referral of nominations, committee practices, and floor procedure. receipt and referral of nominations, committee practices, and floor procedure.

Committees play the central role in the process through investigations and hearings. Senate Rule 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 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 “privileged” nominations to specified positions will not be are referred, although a Senate standing order provides that some “privileged” nominations to specified positions will not be
referred unless requested by a Senator. The Senate rule concerning committee jurisdictions (Rule XXV) broadly defines issue 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 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 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, 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 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. nominee outright.
~~In the 117th Congress, the Senate agreed to S.Res. 27, a resolution establishing procedures that will be in effect this Congress~~
~~as long as Senate membership is evenly divided between the two political parties. The resolution created a process by which~~
~~a Senate majority can vote to discharge a committee from consideration of a matter, including a nomination, if it is not~~
~~reported because of a tie vote in committee.~~
The Senate handles executive business, which includes both nominations and treaties, separately from its legislative businessThe Senate handles executive business, which includes both nominations and treaties, separately from its legislative business . .
All nominations reported from committee All nominations reported from committee ~~or discharged~~ are listed on the are listed on the Executive Calendar, a separate document from the , a separate document from the
Calendar of Business, which lists pending bills and resolutions. Generally speaking, the majority leader schedules floor , 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 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 Senate in session that has its own journal and, to some extent, its own rules of procedure.
The Senate can call up a nomination that is on the Calendar expeditiously, because a motion to enter executive session to The Senate can call up a nomination that is on the Calendar expeditiously, because a motion to enter executive session to
consider a specific nomination on the Calendar is not debatable. This motion requires a majority of Senators present and consider a specific nomination on the Calendar is not debatable. This motion requires a majority of Senators present and
voting, a quorum being present, for approval. voting, a quorum being present, for approval.
After a nomination has been called up, the question before the Senate is “will the Senate advise and consent to this After a nomination has been called up, the question before the Senate is “will the Senate advise and consent to this
nomination?” A majority of Senators voting is required to approve a nomination. However, Senate rules place no limit on nomination?” A majority of Senators voting is required to approve a nomination. However, Senate rules place no limit on
how long a nomination may be debated, and ending consideration could require invoking cloture. Cloture can be filed on a how long a nomination may be debated, and ending consideration could require invoking cloture. Cloture can be filed on a
nomination once it has been taken up by the full Senate, and the vote on cloture occurs two days of Senate session later nomination once it has been taken up by the full Senate, and the vote on cloture occurs two days of Senate session later
(unless that timing is altered by unanimous consent). (unless that timing is altered by unanimous consent).
Several reinterpretations of Senate Rule XXII have altered the cloture process on nominations, making the process for Several reinterpretations of Senate Rule XXII have altered the cloture process on nominations, making the process for
nominations different from the process for legislation. On November 21, 2013, the Senate reinterpreted Rule XXII to allow nominations different from the process for legislation. On November 21, 2013, the Senate reinterpreted Rule XXII to allow
cloture to be invoked on any nominations, except those to the Supreme Court, by a majority of Senators voting, instead of by cloture to be invoked on any nominations, except those to the Supreme Court, by a majority of Senators voting, instead of by
three-fifths of the Senate. On April 6, 2017, the Senate voted to extend this reinterpretation to allow cloture to be invoked by three-fifths of the Senate. On April 6, 2017, the Senate voted to extend this reinterpretation to allow cloture to be invoked by
a majority on nominations to the Supreme Court as well. After the 2013 decision, the number of nominations subjected to a a majority on nominations to the Supreme Court as well. After the 2013 decision, the number of nominations subjected to a
cloture process increased. On April 3, 2019,cloture process increased. On April 3, 2019, the Senate reinterpreted Rule XXII again. The Senate reduced, from 30 hours to the Senate reinterpreted Rule XXII again. The Senate reduced, from 30 hours to
2 hours, the maximum time nominations can be considered after cloture has been invoked. This change applied to all 2 hours, the maximum time nominations can be considered after cloture has been invoked. This change applied to all
executive branch nominations except to 21 high-level positions such as heads of departments, and it applied to all judicial executive branch nominations except to 21 high-level positions such as heads of departments, and it applied to all judicial
nominations except to the Supreme Court and the U.S. Circuit Court of Appeals.nominations except to the Supreme Court and the U.S. Circuit Court of Appeals.
Nominations that are pending when the Senate adjourns Nominations that are pending when the Senate adjourns sine die at the end of a session or recesses for more than 30 days are at the end of a session 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, 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 clause 6). If a nomination is returned, and the President ~~s till~~still desires Senate consideration, he must submit a new nomination. desires Senate consideration, he must submit a new nomination.
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Senate Consideration of Presidential Nominations: Committee and Floor Procedure

Introduction
Article II, Section 2, of the Constitution provides that the President Article II, Section 2, of the Constitution provides that the President ~~shal~~ shall appoint officers of the appoint officers of the
United States “by and with the Advice and Consent of the Senate.” The method by which 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 Senate provides advice and consent on presidential nominations, referred to broadly as the
confirmation process, serves several purposes. First, largely through committee investigations and confirmation process, serves several purposes. First, largely through committee investigations and
hearings, the confirmation process hearings, the confirmation process ~~al ows~~allows the Senate to examine the qualifications of nominees the Senate to examine the qualifications of nominees
and any potential conflicts of interest. Second, Senators can influence policy through the 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 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 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. order to increase its influence with the executive branch on unrelated matters.
Senate confirmation is required for several categories of government officials. Military Senate confirmation is required for several categories of government officials. Military
appointments and promotions make up the majority of nominations, approximately 65,000 per appointments and promotions make up the majority of nominations, approximately 65,000 per
two-year Congress, and most are confirmed routinely. Each Congress, the Senate also considers two-year Congress, and most are confirmed routinely. Each Congress, the Senate also considers
approximately 2,000 civilian nominations, and, again, many of them, such as appointments to or approximately 2,000 civilian nominations, and, again, many of them, such as appointments to or
promotions in the Foreign Service, are routine. Civilianpromotions in the Foreign Service, are routine. Civilian nominations considered by the Senate nominations considered by the Senate
also include federal judges and specified officers in executive departments, independent agencies, also include federal judges and specified officers in executive departments, independent agencies,
and regulatory boards and commissions. and regulatory boards and commissions.
Many presidential appointees are confirmed routinely by the Senate. With tens of thousands of Many presidential appointees are confirmed routinely by the Senate. With tens of thousands of
nominations each Congress, the Senate cannot possibly consider them nominations each Congress, the Senate cannot possibly consider them al all in detail. A regularized in detail. A regularized
process facilitates quick action on thousands of government positions. The Senate may approve process facilitates quick action on thousands of government positions. The Senate may approve
en bloc hundreds of nominations at a time, hundreds of nominations at a time, ~~especial y~~especially military appointments and promotions. military appointments and promotions.
The process also The process also ~~al ows~~allows for close scrutiny of candidates when necessary. Each year, a few 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 hundred nominees to high-level positions are regularly subject to Senate investigations and public
hearings. Most of these are hearings. Most of these are ~~routinely~~ approved, approved, ~~while a smal~~ and a small number of nominations are disputed number of nominations are disputed
and receive more attention from the media and Congress. Judicial nominations, particularly and receive more attention from the media and Congress. Judicial nominations, particularly
Supreme Court appointees, are Supreme Court appointees, are ~~general y~~generally subject to greater scrutiny than nominations to executive subject to greater scrutiny than nominations to executive
posts, partly because judges may serve for life.1 Among the executive branch positions, nominees posts, partly because judges may serve for life.1 Among the executive branch positions, nominees
for policymaking positions are more likely to be examined closely, and are slightly less likelyfor policymaking positions are more likely to be examined closely, and are slightly less likely to to
be confirmed, than nominees for be confirmed, than nominees for ~~non-policy~~nonpolicy positions.2 positions.2
There are several reasons that the Senate confirms a high percentage of nominations. Most There are several reasons that the Senate confirms a high percentage of nominations. Most
nominations and promotions are not to policymaking positions and are of less interest to the 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 Senate. In addition, some sentiment exists in the Senate that the selection of persons to ~~fil~~
fill executive branch positions is largely a presidential prerogative. executive branch positions is largely a presidential prerogative. ~~Historical y~~Historically, the President has , the President has
been granted wide latitude in the selection of his Cabinet and other high-ranking executive branch been granted wide latitude in the selection of his Cabinet and other high-ranking executive branch
~~officials.3~~

officials.3 1 For more information on the consideration of Supreme Court nominations, see CRS1 For more information on the consideration of Supreme Court nominations, see CRS Report RL33225, Report RL33225, Supreme Court
~~Nom inations~~Nominations, 1789 to 2020: Actions by the Senate, the Judiciary ~~Com m ittee~~Committee, and the President ; CRS; CRS Report RL33247, Report RL33247,
~~Suprem e Court Nom inations~~Supreme Court Nominations: Senate Floor Procedure and Practice, 1789 -2011; and CRS; and CRS Report RL33118, Report RL33118, Speed of
Presidential and Senate Actions on ~~Suprem e Court Nom inations, 1900~~ Supreme Court Nominations, 1900-2010. .
2 CRS 2 CRS Report 93-464, Report 93-464, Senate Action on Nominations to Policy Positions in the Executive Branch, , 1981-1992. (For a . (For a
copy of this out-of-print CRS report, congressional clients may contact Elizabeth Rybicki.)copy of this out-of-print CRS report, congressional clients may contact Elizabeth Rybicki.)
3 Joseph P. Harris, 3 Joseph P. Harris, The Advice and Consent of the Senate (New (New York: GreenwoodYork: Greenwood Press Publishers, 1968), p. 2; Press Publishers, 1968), p. 2;
Richard Allan Baker, “Legislative Power Over Appointments and Confirmations,” in Joel Silbey, ed.,Richard Allan Baker, “Legislative Power Over Appointments and Confirmations,” in Joel Silbey, ed., Encyclopedia of
the ~~Am erican~~American Legislative System (New (New York: C. Scribner’sYork: C. Scribner’s Sons,Sons, 1994), vol. 3, p. 1616. 1994), vol. 3, p. 1616.
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Another important reason for the high percentage of confirmations is that Senators are often Another important reason for the high percentage of confirmations is that Senators are often
involved in the nomination stage. The President would prefer a smooth and fast confirmation involved in the nomination stage. The President would prefer a smooth and fast confirmation
process, so he may decide to consult with Senators prior to choosing a nominee. Senators most process, so he may decide to consult with Senators prior to choosing a nominee. Senators most
likelylikely to be consulted, to be consulted, ~~typical y~~typically by White House congressional relations staff, are Senators from a 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 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 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.4 There is a long-standing even propose candidates for federal appointments in their own states.4 There is a long-standing
custom of “senatorial courtesy,” whereby the Senate custom of “senatorial courtesy,” whereby the Senate ~~wil~~ will sometimes decline to proceed on a sometimes decline to proceed on a
nomination if a home-state Senator expresses opposition.5 Positions subject to senatorial courtesy nomination if a home-state Senator expresses opposition.5 Positions subject to senatorial courtesy
include U.S. attorneys, U.S. marshals, and U.S. district judges. include U.S. attorneys, U.S. marshals, and U.S. district judges.
Over the past decade, Senators have expressed concerns over various aspects of the confirmation Over the past decade, Senators have expressed concerns over various aspects of the confirmation
process, including the rate of confirmation for high-ranking executive branch positions and process, including the rate of confirmation for high-ranking executive branch positions and
judgeships, as judgeships, as ~~wel~~ well as the speed of Senate action on routine nominations. When the Senate is as the speed of Senate action on routine nominations. When the Senate is
controlled by the party of the President, this concern has often been raised as a complaint that controlled by the party of the President, this concern has often been raised as a complaint that
minority party Senators are disputing a higher number of nominations, and have increasingly used minority party Senators are disputing a higher number of nominations, and have increasingly used
their leverage under Senate proceedings to delay or even block their consideration.6 These their leverage under Senate proceedings to delay or even block their consideration.6 These
concerns have led the Senate to make several changes to the confirmation process since 2011. The concerns have led the Senate to make several changes to the confirmation process since 2011. The
changes are taken into account in the following description of the process and are described in changes are taken into account in the following description of the process and are described in
detail in other CRS Reports.7detail in other CRS Reports.7
Receipt and Referral and “Privileged Nominations”
The President customarily sends nomination messages to the Senate in writing. Once received, 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 nominations are numbered by the executive clerk and read on the floor. The clerk ~~actual y~~actually assigns assigns
numbers to the presidential messages, not to individual nominations, so a message listing several 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 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. vote on nominations the day they are received, and most are referred immediately to committees.
Senate Rule XXXI provides that nominations Senate Rule XXXI provides that nominations ~~shal~~ shall be referred to appropriate committees “unless be referred to appropriate committees “unless
otherwise ordered.” A standing order of the Senate provides that some nominations to specified otherwise ordered.” A standing order of the Senate provides that some nominations to specified
positions positions ~~wil~~ will not be referred unless a Senator requests referral.8 Instead of being immediately not be referred unless a Senator requests referral.8 Instead of being immediately
referred, the nominations are instead listed in a special section of the referred, the nominations are instead listed in a special section of the Executive Calendar, a , a

4 “Report of the 4 “Report of the ~~T ask~~Task Force on the Confirmation Process,” Force on the Confirmation Process,” Congressional Record, vol. 138 (February 4, 1992), pp. , vol. 138 (February 4, 1992), pp.
1348-1352. 1348-1352.
5 For more on senatorial courtesy and its history, see CRS5 For more on senatorial courtesy and its history, see CRS Report RL34405, Report RL34405, Role of Home State Senators in the
Selection of Lower Federal Court Judges; and CRS; and CRS Report RL31948, Report RL31948, Evolution of the Senate’s Role in the ~~Nom ination~~
~~and Confirm ation~~Nomination and Confirmation Process: A Brief History.. (For a copy of this out-of-print CRS report, congressional clients may (For a copy of this out-of-print CRS report, congressional clients may
contact Elizabeth Rybicki.) contact Elizabeth Rybicki.)
6 Sen. Bill 6 Sen. Bill Frist, “JudicialFrist, “Judicial Nominations,” Nominations,” Congressional Record, daily edition, vol. 149 (November 12, 2003), pp. , daily edition, vol. 149 (November 12, 2003), pp.
S14528-S14529; Sen. BillS14528-S14529; Sen. Bill Frist, “Frist, “ Fulfilling Duty, Preserving Legacy: Nominee Confirmations,” Fulfilling Duty, Preserving Legacy: Nominee Confirmations,” Congressional Record, ,
daily edition, vol. 152 (December 6, 2006), p. S115999; Sen. Harry Reid, “daily edition, vol. 152 (December 6, 2006), p. S115999; Sen. Harry Reid, “ Stopping Progress,” Stopping Progress,” Congressional Record, ,
daily edition, October 31, 2009, pp. S10946daily edition, October 31, 2009, pp. S10946 -S10947; Sen. Harry Reid,-S10947; Sen. Harry Reid, “ “Rules Reform,” Rules Reform,” Congressional Record, daily , daily
edition, vol. 159 (November 21, 2013), pp. S8414edition, vol. 159 (November 21, 2013), pp. S8414 -S8415. -S8415.
7 CRS7 CRS Report R41872, Report R41872, Presidential Appointments, the Senate’s Confirmation Process, and Changes Made in the 112th
Congress; CRS; CRS Report R42996, Report R42996, Changes to Senate Procedures at the Start of the 113th Congress Affecting the
Operation of Cloture (S.Res. 15 and S.Res. 16); CRS; CRS Report R43331, Report R43331, Majority Cloture for ~~Nom inations: Im plications~~Nominations: Implications
and the “Nuclear” Proceedings of November 21, 2013; and CRS; and CRS Report R44819, Report R44819, Senate Proceedings Establishing
Majority Cloture for ~~Suprem e Court Nom inations~~Supreme Court Nominations: In Brief. .
8 S.Res. 8 S.Res. 116, 112th Congress. 116, 112th Congress.
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document distributed daily to congressional offices and available online.9 This section of the document distributed daily to congressional offices and available online.9 This section of the
Calendar is titled “Privileged Nominations.” After the chair of the committee with jurisdiction Calendar is titled “Privileged Nominations.” After the chair of the committee with jurisdiction
over a nomination has notified the executive clerk that biographical and financial information on over a nomination has notified the executive clerk that biographical and financial information on
the nominee has been received, this is indicated in the Calendar. After 10 days, the nomination is the nominee has been received, this is indicated in the Calendar. After 10 days, the nomination is
moved from the “Privileged Nominations” section of the Calendar and placed on the moved from the “Privileged Nominations” section of the Calendar and placed on the
“Nominations” section with the same status as a nomination that had been reported by a “Nominations” section with the same status as a nomination that had been reported by a
committee. (See committee. (See “Executive Calendar” below.) Importantly, at any time that the nomination is below.) Importantly, at any time that the nomination is
listed in the new section of the listed in the new section of the Executive Calendar, any Senator can request that a nomination be , any Senator can request that a nomination be
referred, and it is then sent to the appropriate committee of jurisdiction.10referred, and it is then sent to the appropriate committee of jurisdiction.10
~~Formal y~~ Formally the presiding officer, but administratively the executive clerk’s office, refers the 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 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 concerning committee jurisdictions (Rule XXV) broadly defines issue areas for committees, and
the same jurisdictional statements the same jurisdictional statements ~~general y~~generally apply to nominations as apply to nominations as ~~wel~~ well as legislation.11 An as legislation.11 An
executive department nomination can be expected to be referred to the committee with executive department nomination can be expected to be referred to the committee with
jurisdiction over legislationjurisdiction over legislation concerning that department or to the committee that handled the concerning that department or to the committee that handled the
legislationlegislation creating the position. Judicial branch nominations, including judges, U.S. attorneys, creating the position. Judicial branch nominations, including judges, U.S. attorneys,
and U.S. marshals, are under the jurisdiction of the Judiciary Committee. In some instances, the and U.S. marshals, are under the jurisdiction of the Judiciary Committee. In some instances, the
committee of jurisdiction for a nomination has been set in statute.12 committee of jurisdiction for a nomination has been set in statute.12
The number of nominations referred to various committees differs considerably. The Committee The number of nominations referred to various committees differs considerably. The Committee
on Armed Services, which handles on Armed Services, which handles al all military appointments and promotions, receives the most. military appointments and promotions, receives the most.
The two other committees with major confirmation responsibilities are the Committee on the The two other committees with major confirmation responsibilities are the Committee on the
Judiciary, with its jurisdiction over nominations in the judicialJudiciary, with its jurisdiction over nominations in the judicial branch, and the Committee on branch, and the Committee on
Foreign Relations, which considers ambassadorial and other diplomatic appointments. Foreign Relations, which considers ambassadorial and other diplomatic appointments.
~~Occasional y~~Occasionally, nominations are referred to more than one committee, either jointly or , nominations are referred to more than one committee, either jointly or ~~sequential y.~~
sequentially. A joint referral might occur when the jurisdictional claim of two committees is A joint referral might occur when the jurisdictional claim of two committees is ~~essential y~~essentially equal. equal.
In such cases, both committees must report on the nomination before the whole Senate can act on In such cases, 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 it, unless the Senate discharges one or both committees. If two committees have unequal
jurisdictional claims, then the nomination is more likely to be jurisdictional claims, then the nomination is more likely to be ~~sequential y~~sequentially referred. In this referred. In this ~~c ase~~case, ,
the first committee must report the nomination before it is the first committee must report the nomination before it is ~~sequential y~~sequentially referred to the second referred to the second
committee. The second referral often is subject to a requirement that the committee report within committee. The second referral often is subject to a requirement that the committee report within
a certain number of days. a certain number of days. ~~Typical y~~Typically, nominations are jointly or , nominations are jointly or ~~sequential y~~sequentially referred by referred by
unanimous consent. Sometimes the unanimous consent agreement applies to unanimous consent. Sometimes the unanimous consent agreement applies to al all future future
nominations to a position or category of positions.13 nominations to a position or category of positions.13

~~9 See CRS~~ 9 See CRS Report 98-438, Report 98-438, The Senate’s Executive Calendar. .
10 For more information on privileged nominations, see CRS10 For more information on privileged nominations, see CRS Report R46273, Report R46273, Consideration of Privileged Nominations
in the Senate. .
11 For a list of appointee positions requiring Senate confirmation and the committees to which they are referred, see 11 For a list of appointee positions requiring Senate confirmation and the committees to which they are referred, see
CRSCRS Report RL30959, Report RL30959, Presidential Appointee Positions Requiring Senate ~~Confirm ation and Com m ittees Handling~~
~~Nom inations~~Confirmation and Committees Handling Nominations. .
12 For example, nominations of two members of the 12 For example, nominations of two members of the ~~T hrift~~Thrift Depositor Protection Oversight Board are referred to the Depositor Protection Oversight Board are referred to the
Committee on Banking, Housing, and Urban Affairs (12 U.S.C.Committee on Banking, Housing, and Urban Affairs (12 U.S.C. 1441a). Nominations of the U.S. 1441a). Nominations of the U.S. ~~T rade~~Trade Representative Representative
and Deputy U.S.and Deputy U.S. ~~T rade~~ Trade Representative are referred to the Committee on Finance (19 U.S.C. 2171). Representative are referred to the Committee on Finance (19 U.S.C. 2171).
13 See,13 See, for example, “Joint Referral of Department of Energy Nominations,” for example, “Joint Referral of Department of Energy Nominations,” Congressional Record, vol. 136 (June 28, , vol. 136 (June 28,
1990), pp. 16573-16574. 1990), pp. 16573-16574.
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Committee Procedures
Written Rules
Most Senate committees that consider nominations have written rules concerning the process. Most Senate committees that consider nominations have written rules concerning the process.
Although committee rules vary, most contain standards concerning information to be gathered Although committee rules vary, most contain standards concerning information to be gathered
from a nominee. Many committees expect a biographical résumé and some kind of financial from a nominee. Many committees expect a biographical résumé and some kind of financial
statement listing assets and liabilities.statement listing assets and liabilities. Some specify the terms under which financial statements Some specify the terms under which financial statements
~~wil or wil~~ will or will not be made public. not be made public.
Committee rules also frequently contain timetables outlining the minimum layover required Committee rules also frequently contain timetables outlining the minimum layover required
between committee actions. A common timing provision is a requirement that nominations be 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 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 Senators time to review a nomination before committee consideration. Other committee rules
~~specifical y~~specifically mandate a delay between steps of the process, such as the receipt of pre-hearing 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 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 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 to be waived by majority vote, by unanimous consent, or by the chair and the ranking minority
member.member.14
Investigations
Committees often gather and review information about a nominee either before or instead of a 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 formal hearing. Because the executive branch acts first in selecting a nominee, congressional
committees are sometimes able to rely committees are sometimes able to rely ~~partial y~~partially on any field investigations and reports conducted on any field investigations and reports conducted
by the Federal Bureau of Investigation (FBI). Records of FBI investigations are provided only to 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 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 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 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 and ranking Member review any FBI report or summary, but on some committees these materials
are availableare available to any Senator upon request. Committee staff to any Senator upon request. Committee staff ~~usual y~~usually do not review FBI materials. do not review FBI materials.
Almost Almost al all nominees are also asked by the Office of the Counsel to the President to complete an 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 “Executive Personnel Financial Disclosure Report, SF-278,” which is reviewed and certified by
the relevant agency as the relevant agency as ~~wel~~ well as the Director of the Office of Government Ethics. The documents 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 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 the relevant agency and the director of the Office of Government Ethics. In contrast to FBI
reports, financial disclosure forms are made public. reports, financial disclosure forms are made public. Al All committees review financial disclosure committees review financial disclosure
reports and some make them available in committee offices to Members, staff, and the public. 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. Some To varying degrees, committees also conduct their own information-gathering exercises. Some
committees, after reviewing responses to their standard questionnaire, might ask a nominee to 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 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 questionnaires be submitted before a hearing is scheduled. The Committee on the Judiciary sends
form letters, sometimes form letters, sometimes ~~cal ed~~called “blue slips,” to Senators from a nominee’s home state to determine “blue slips,” to Senators from a nominee’s home state to determine
whether they support the nomination.whether they support the nomination.1514 The Committee on the Judiciary also has its own The Committee on the Judiciary also has its own

~~14 For more information on committee rules concerning nominations, see T able 3 in CRS Report R44901,~~ ~~Senate~~
~~Com m ittee Rules in the 115th Congress: Key Provisions~~.
15investigative staff. The Committee on Rules and Administration handles relatively few 14 For more information, see CRS For more information, see CRS Report Report ~~RL34405,~~ ~~Role of Home State Senators in the Selection of Lower Federal~~
~~Court Judges~~.
R44975, The Blue Slip Process for U.S. Circuit and District Court Nominations: Frequently Asked Questions, by Barry J. McMillion Congressional Research Service Congressional Research Service

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Senate Consideration of Presidential Nominations: Committee and Floor Procedure

~~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 nominations and conducts its own investigations, sometimes with the assistance of the FBI or the
Government Accountability Office (GAO). Government Accountability Office (GAO).
It is not unusual for nominees to meet with committee staff prior to a hearing. High-level It is not unusual for nominees to meet with committee staff prior to a hearing. High-level
nominees may meet privately with Senators. nominees may meet privately with Senators. ~~General y~~Generally speaking, these meetings, sometimes speaking, these meetings, sometimes
initiated by the nominee, serve initiated by the nominee, serve ~~basical y~~basically to acquaint the nominee with the Members and to acquaint the nominee with the Members and
committee staff, and vice versa. They committee staff, and vice versa. They ~~occasional y~~occasionally address substantive matters as address substantive matters as ~~wel~~ well. A . A
nominee also might meet with the committee’s chief counsel to discuss the financial disclosure nominee also might meet with the committee’s chief counsel to discuss the financial disclosure
report and any potential conflict-of-interest issues. report and any potential conflict-of-interest issues.
Hearings
~~Historical y~~Historically, approximately half of , approximately half of al all civilian appointees were confirmed without a hearing.civilian appointees were confirmed without a hearing.~~16 Al~~
15 All committees that receive nominations do hold hearings on some nominations, and the likelihoodcommittees that receive nominations do hold hearings on some nominations, and the likelihood of of
hearings varies with the importance of the position and the workload of the committee. The 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 Committee on the Judiciary, for example, which receives a large number of nominations, does not
~~usual y~~usually hold hearings for U.S. attorneys, U.S. marshals, or members of part-time commissions. 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 The Committee on Agriculture, Nutrition, and Forestry and the Committee on Energy and Natural
Resources, on the other hand, Resources, on the other hand, ~~typical y~~typically hold hearings on most nominations that are referred to hold hearings on most nominations that are referred to
them. Committees often combine related nominations into a single hearing. them. Committees often combine related nominations into a single hearing.
The length and nature of hearings varies. One or both home-state Senators The length and nature of hearings varies. One or both home-state Senators ~~wil~~ will often introduce a often introduce a
nominee at a hearing. The nominee nominee at a hearing. The nominee ~~typical y~~typically testifies at the hearing, and testifies at the hearing, and ~~occasional y~~occasionally the the
committee committee ~~wil~~ will invite other witnesses, including Members of the House of Representatives, to invite other witnesses, including Members of the House of Representatives, to
testify as testify as ~~wel~~ well. Some hearings function as routine welcomes, while others are directed at . 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 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 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. 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 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 responses. Nominees also might be asked to respond in writing to additional questions after a
hearing. hearing. ~~Especial y~~Especially for high-level positions, the nomination hearing may be only the first of many for high-level positions, the nomination hearing may be only the first of many
times an individualtimes an individual ~~wil~~ will be asked to testify before a committee. Therefore, the committee often be asked to testify before a committee. Therefore, the committee often
gains a commitment from the nominee to be cooperative with future oversight activities of the gains a commitment from the nominee to be cooperative with future oversight activities of the
committee.committee.1716
Hearings, under Senate Rule XXVI, are open to the public unless closed by majority vote for one 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 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, through the website of the relevant committee and also through several commercial services,
including Congressional Quarterly. Most committees print the hearings, although no rule requires including Congressional Quarterly. 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 it. The number of Senators necessary to constitute a quorum for the purpose of taking testimony
varies from committee to committee, but it is varies from committee to committee, but it is ~~usual y smal er~~usually smaller than a majority of the than a majority of the
membership.membership.18

~~16 T he~~17 15 The estimate excludes military appointees as well as civilian appointees usually submitted on lists to the Senate. estimate excludes military appointees as well as civilian appointees usually submitted on lists to the Senate.
Civilian nominations usually submitted on lists includeCivilian nominations usually submitted on lists include appointments to, and promotions in, the Foreign Service, and appointments to, and promotions in, the Foreign Service, and
prior to October 9, 2012 (when P.L. 112-166 took effect) appointments to, and promotions in, the National Oceanic and prior to October 9, 2012 (when P.L. 112-166 took effect) appointments to, and promotions in, the National Oceanic and
Atmospheric Administration and Public Health Service. Atmospheric Administration and Public Health Service.
1716 Roger H. Davidson and Walter J. Oleszek, Roger H. Davidson and Walter J. Oleszek, Congress and Its Members, 9th ed. (Washington: CQ Press, 2004), p. 324. , 9th ed. (Washington: CQ Press, 2004), p. 324.
1817 For more details concerning hearings, see CRS For more details concerning hearings, see CRS Report 98-337, Report 98-337, Senate Committee Hearings: Scheduling and
Notification. .
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Reporting
A committee considering a nomination has four options. It may report the nomination to the 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 Senate favorably, unfavorably, or without recommendation, or it may choose to take no action at
al all. It is more common for a committee to take no action on a nomination than to report . It is more common for a committee to take no action on a nomination than to report
unfavorably. Particularly for policymaking positions, committees sometimes report a nomination unfavorably. Particularly for policymaking positions, committees sometimes report a nomination
favorably, subject to the commitment of the nominee to testify before a Senate committee. 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 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, 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 a majority might agree to report a nomination without a recommendation in order to permit a vote
by the whole Senate. by the whole Senate.
The timing of a vote to report a nomination varies in accordance with committee rules and The timing of a vote to report a nomination varies in accordance with committee rules and
practice. In most committees, a nomination is not ordered report on the same day that a hearing is practice. In most committees, a nomination is not ordered report on the same day that a hearing is
held on it. Senate Rule XXVI, clause 7(a)(1) requires that a quorum for making a held on it. 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. recommendation on a nomination consist of a majority of the membership of the committee.
Most of the time, committees do not Most of the time, committees do not ~~formal y~~formally present reports on nominations on the floor of the present reports on nominations on the floor of the
Senate. Instead, committee staff prepare the appropriate paperwork on behalf of the committee Senate. Instead, committee staff prepare the appropriate paperwork on behalf of the committee
chair and file it with the clerk. The executive clerk then arranges for the nomination to be printed chair and file it with the clerk. The executive clerk then arranges for the nomination to be printed
in the in the Congressional Record and placed on the and placed on the Executive Calendar. If a report were presented on . If a report were presented on
the floor, it would have to be done in executive session. Executive session and the the floor, it would have to be done in executive session. Executive session and the Executive
Calendar ~~wil~~ will be discussed in the next section. According to Senate Rule XXXI, the Senate 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.cannot vote on a nomination the same day it is reported except by unanimous consent.1918
Discharging a Committee from Consideration of a Nomination
It is fairly common for the Senate to discharge a committee from consideration of an unreported It is fairly common for the Senate to discharge a committee from consideration of an unreported
nomination by unanimous consent. This removes the nomination from the committee in order to nomination by unanimous consent. This removes the nomination from the committee in order to
~~al ow~~allow the full Senate to consider it. When the Senate discharges a committee by unanimous the full Senate to consider it. When the Senate discharges a committee by unanimous
consent, it is doing so with the support of the committee for the purposes of simplifying the consent, it is doing so with the support of the committee for the purposes of simplifying the
~~process.~~
~~The Senate has created a temporary process to al ow a Senate majority to discharge a committee~~
~~from consideration of certain nominations. In the 117th Congress, Senate membership is evenly~~
~~divided between the two political parties, with 50 Republicans, 48 Democrats, and 2~~
~~Independents who caucus with the Democrats. As a result, the Senate agreed to S.Res. 27 , a~~
~~resolution that established procedures in effect as long as the Senate remains evenly divided in~~
~~this Congress. The resolution required that Senate committees “be composed equal y of members~~
~~of both parties.” If a motion to report a nomination fails due to a tie vote, the committee chair~~
~~shal provide notice of the tie vote to the Secretary of the Senate, and the notice would be printed~~
~~in the Congressional Record. The majority or minority leader (after consultation with committee~~
~~leaders) may then move on the floor to discharge the committee from further consideration of the~~
~~nomination. Such a motion can be made only when the Senate is in executive session (see~~
~~“Executive Session” section of this report, below). The discharge motion may be debated for a~~

~~19 T he reference in the rule to a “day” refers to a calendar day, not a legislative day. See Floyd M. Riddick~~ process. Under the regular rules of the Senate, it is unusual for Senators to attempt to discharge a committee by motion or resolution, instead of by unanimous consent, and only a few attempts have ever been successful.19 Senate Rule XVII does permit any Senator to submit a motion or resolution that a committee be discharged from the consideration of a subject referred to it. The discharge process, however, does not allow a simple majority to quickly initiate consideration of a nomination still in committee. It requires several steps and, most notably, a motion or resolution to discharge is debatable. This means that a cloture process may be necessary to discharge a committee. Cloture on a discharge motion or resolution requires the support of three-fifths of the Senate, usually 60 Senators, and several days of floor time. 18 The reference in the rule to a “day” refers to a calendar day, not a legislative day. See Floyd M. Riddick and Alan S. and Alan S.
Frumin, Frumin, Riddick’s Senate Procedure: Precedents and Practices, 101st Cong., 2nd sess., S.Doc., 101st Cong., 2nd sess., S.Doc. 101-28 (Washington: 101-28 (Washington:
GPO, 1992) (hereinafter GPO, 1992) (hereinafter Riddick’s Senate Procedure), p. 943. A legislative day begins), p. 943. A legislative day begins the first time the Senate meets the first time the Senate meets
after an adjournment and ends when the Senate adjourns again. A legislative day is not necessarily a calendar day after an adjournment and ends when the Senate adjourns again. A legislative day is not necessarily a calendar day
becausebecause the Senate does not always adjournthe Senate does not always adjourn each calendar day. 19 For a detailed description of the discharge process and the five instances since 1916 when discharge was successful, see CRS congressional distribution memorandum, “Discharging a Committee from Consideration of a Nomination: Current Procedure and Historical Practice” (available to congressional clients on request from the author of this report). Congressional Research Service 6 link to page 5 Senate Consideration of Presidential Nominations: Committee and Floor Procedure In the 117th Congress, the Senate created a temporary process to allow a Senate majority to discharge a committee from consideration of a nomination. The process, established in S.Res. 27, is no longer available.20~~each calendar day.~~
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~~maximum of four hours, equal y divided and controlled by the leaders. After the expiration (or~~
~~yielding back) of time, the Senate would vote on the discharge motion, without intervening~~
~~action, motion, or debate. If a majority of the Senate agrees to a motion to discharge, the~~
~~nomination would be placed on the Executive Calendar and be eligible to be taken up the next~~
~~calendar day.20~~
~~Under the regular rules of the Senate, it is unusual for Senators to attempt to discharge a~~
~~committee by motion or resolution, instead of by unanimous consent, and only a few attempts~~
~~have ever been successful.21 Senate Rule XVII does permit any Senator to submit a motion or~~
~~resolution that a committee be discharged from the consideration of a subject referred to it. The~~
~~discharge process, however, does not al ow a simple majority to quickly initiate consideration of a~~
~~nomination stil in committee. It requires several steps and, most notably, a motion or resolution~~
~~to discharge is debatable. This means that a cloture process may be necessary to discharge a~~
~~committee in circumstances not covered in the 117th Congress by S.Res. 27. Cloture on a~~
~~discharge motion or resolution requires the support of three-fifths of the Senate, usual y 60~~
~~Senators, and several days of floor time.~~
Floor Procedures
The Senate handles executive business, which includes both nominations and treaties, separately The Senate handles executive business, which includes both nominations and treaties, separately
from its legislativefrom its legislative business. business. Al All nominations reported from committee, regardless of whether nominations reported from committee, regardless of whether
they were reported favorably, unfavorably, or without recommendation, are listed on the they were reported favorably, unfavorably, or without recommendation, are listed on the
Executive Calendar, a separate document from the , a separate document from the Calendar of Business, which lists pending , which lists pending
~~bil s~~bills and resolutions. and resolutions. ~~Usual y~~Usually, the majority leader schedules the consideration of nominations on , the majority leader schedules the consideration of nominations on
the Calendar. Nominations are considered in executive session, a parliamentary form of the 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. Senate in session that has its own journal and, to some extent, its own rules of procedure.
Executive Calendar
After a committee reports a nominationAfter a committee reports a nomination ~~or is discharged from considering it~~, the nomination is , the nomination is
assigned a number by the executive clerk and placed on the assigned a number by the executive clerk and placed on the Executive Calendar. Under a standing . Under a standing
order of the Senate, certain nominations might also be placed in this status on the order of the Senate, certain nominations might also be placed in this status on the Executive
Calendar after certain informational and time requirements are met. after certain informational and time requirements are met.2221 The list of nominations in The list of nominations in
the the Executive Calendar includes basic information such as the name and office of the nominee, 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 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 favorably, unfavorably, or without recommendation. Long lists of routine nominations are printed
in the in the Congressional Record and identified and identified only by a short title in the only by a short title in the Executive Calendar, such , such
as “Foreign Service nominations (84) beginning John F. Aloia, and ending Paul G. as “Foreign Service nominations (84) beginning John F. Aloia, and ending Paul G. ~~Churchil~~ Churchill.” In .” In
addition to reported nominations and treaties, the addition to reported nominations and treaties, the Executive Calendar contains the text of any contains the text of any
unanimous consent unanimous consent agreements concerning executive business. ~~agreements concerning executive business.~~

~~20 See text box “Steps to Consider a Nomination with S.Res. 27 Discharge Process and Cloture” and CRS Report~~
~~R46769, The Senate Powersharing Agreem ent of the 117th Congress (S.Res. 27) .~~
~~21 For a detailed description of the discharge process and the five instances since 1916 when discharge was successful,~~
~~see CRS congressional distribution memorandum, “ Discharging a Committee from Consideration of a Nomination:~~
~~Current Procedure and Historical Practice” (available to congressional clients on request from the author of this report ).~~
~~22 S.Res. 116, 112th Congress. See discussion above under “ Receipt and Referral,” and CRS Report R41872,~~
Presidential Appointm ents, the Senate’s Confirm ation Process, and Changes Made in the 112th Congress.
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The The Executive Calendar is distributed to Senate personal offices and committee offices when is distributed to Senate personal offices and committee offices when
there is business on it. It is also availablethere is business on it. It is also available online by following the link to “Calendars and online by following the link to “Calendars and
Schedules” on the Virtual Reference Desk under the Reference tab of the Senate website Schedules” on the Virtual Reference Desk under the Reference tab of the Senate website
(www.Senate.gov).(www.Senate.gov).2322
Executive Session
Business on the Business on the Executive Calendar, which consists of nominations and treaties, is considered in , which consists of nominations and treaties, is considered in
executive session. In contrast, executive session. In contrast, al all measures and matters associated with lawmaking are considered measures and matters associated with lawmaking are considered
in legislativein legislative session. Until 1929 executive sessions were also closed to the public, but now they session. Until 1929 executive sessions were also closed to the public, but now they
are open unless ordered otherwise by the Senate. are open unless ordered otherwise by the Senate.
The Senate The Senate ~~usual y~~usually begins the day in legislative begins the day in legislative session and enters executive session either by a session and enters executive session either by a
non-debatable motion or, far more often, by unanimous consent. Only if the Senate adjourned or 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 recessed while in executive session would the next meeting ~~automatical y~~automatically open in executive 20 For more information on the prior procedure, see CRS Report R46769, The Senate Powersharing Agreement of the 117th Congress (S.Res. 27). 21 S.Res. 116, 112th Congress. See discussion above under “Receipt and Referral,” and CRS Report R46273, Consideration of Privileged Nominations in the Senate. 22 See also CRS Report 98-438, The Senate’s Executive Calendar. Congressional Research Service 7 link to page 9 Senate Consideration of Presidential Nominations: Committee and Floor Procedure ~~open in executive~~
session. The motion to go into executive session can be offered at any time, is not debatable, and session. The motion to go into executive session can be offered at any time, is not debatable, and
cannot be laid upon the table. cannot be laid upon the table.
Al All business concerning nominations, including seemingly routine matters such as requests for 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 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 often make such motions or unanimous consent requests “as if in executive session.” These
~~usual y~~usually brief proceedings during a legislative session do not constitute an official executive 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 session. In addition, at the start of each Congress, the Senate adopts a standing order, by
unanimous consent, that unanimous consent, that ~~al ows~~allows the Senate to receive nominations from the President and for 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 them to be referred to committees even on days when the Senate does not meet in executive
session. session.
Taking Up a Nomination
The majority leader, by custom, makes most motions and requests that determine when or The majority leader, by custom, makes most motions and requests that determine when or
whether a nomination whether a nomination ~~wil be cal ed~~will be called up for consideration. For example, the majority leader may up for consideration. For example, the majority leader may
move or ask unanimous consent to “immediately proceed to executive session to consider the 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 following nomination on the Executive Calendar.... ” By precedent, the motion to go into
executive session to take up a specified nomination is not debatable.executive session to take up a specified nomination is not debatable.2423 The nomination itself, The nomination itself,
however, is debatable. however, is debatable.
It is not in order for a Senator to move to consider a nomination that is not on the Calendar, and, 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 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). A day for this purpose is a calendar day. on the Calendar at least one day (Rule XXXI, clause 1). A day for this purpose is a calendar day.
In other words, a nomination reported and placed on the Calendar on a Monday can be considered 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 legislativeon Tuesday, even if it is the same legislative day.day.2524
If the Senate simply resolved into executive session, the business immediately pending would be If the Senate simply resolved into executive session, the business immediately pending would be
the first item on the the first item on the Executive Calendar. A motion to proceed to another matter on the Calendar . A motion to proceed to another matter on the Calendar
would be debatable and subject to a filibuster. For this reason, the Senate does not begin would be debatable and subject to a filibuster. For this reason, the Senate does not begin
consideration of executive business this way. Instead, the motion made to consideration of executive business this way. Instead, the motion made to ~~cal~~ call up a nomination is up a nomination is
a motion to proceed to executive session to consider that specific nomination. If the Senate is a motion to proceed to executive session to consider that specific nomination. If the Senate is

~~23 See also CRS Report 98-438, The Senate’s Executive Calendar.~~
~~24 Riddick’s Senate Procedure, p. 941.~~
~~25 T he reference in Senate Rule XXXI, clause 1 to a “day” refers to a calendar day, not a legislative day. See~~ ~~Riddick’s~~
~~Senate Procedure, p. 943. See footnote 19 for a definition of a legislative day.~~
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~~already in executive session, and the leader wishes to cal~~ already in executive session, and the leader wishes to call up a nomination, the leader up a nomination, the leader ~~wil~~ will first first
move that the Senate enter legislativemove that the Senate enter legislative session and then that the Senate enter executive session to session and then that the Senate enter executive session to
take up the nomination. Both motions (to enter legislativetake up the nomination. Both motions (to enter legislative session and to enter executive session) session and to enter executive session)
are not subject to debate and are decided by a simple majority. are not subject to debate and are decided by a simple majority. ~~Typical y~~Typically they are approved by they are approved by
voice vote. voice vote.
Consideration and Disposition
The question before the Senate The question before the Senate
when a nomination is taken up is when a nomination is taken up is
~~“wil~~ “will the Senate advise and consent to this nomination?” The Senate can ~~the Senate advise and consent~~
~~Steps to Consider a Nomination Using S.Res.~~
~~to this nomination?” The Senate can~~
~~27 Discharge Process and Cloture~~
approve or reject a nomination.approve or reject a nomination.2625 A A

~~Committee chair provides notice to the Secretary of the~~
majority of majority of Senators present and voting, a quorum being present, is required to approve a nomination. 23 Riddick’s Senate Procedure, p. 941. 24 The reference in Senate Rule XXXI, clause 1 to a “day” refers to a calendar day, not a legislative day. See Riddick’s Senate Procedure, p. 943. See footnote 18 for a definition of a legislative day. 25 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. Congressional Research Service 8 Senate Consideration of Presidential Nominations: Committee and Floor Procedure According to Senate Rule XXXI, any Senator who voted with the majority on the nomination has the option of moving to reconsider a vote on the day of the vote or the next two days the Senate meets in executive session. Only one motion to reconsider is in order on each nomination, and often the motion to reconsider is laid upon the table, by ~~Senators present and~~
~~Senate of a tie vote in committee on reporting a nomination~~
~~voting, a quorum being present, is~~

~~When the Senate is in executive session, majority or minority~~
~~required to approve a nomination.~~
~~leader moves to discharge the committee from consideration~~
~~of the nomination (after consultation with committee leaders)~~
~~According to Senate Rule XXXI,~~

~~After a maximum of four hours of debate, divided and~~
~~any Senator who voted with the~~
~~control ed between the leaders, Senate votes on motion to~~
~~majority on the nomination has the~~
~~discharge. If a majority voting agrees, the nomination is placed~~
~~option of moving to reconsider a~~
on the Executive Calendar
~~vote on the day of the vote or the~~

~~After the nomination is on the Executive Calendar for one~~
~~next two days the Senate meets in~~
~~calendar day, a Senator moves that the Senate enter executive~~
~~executive session. Only one motion~~
~~session to take up the nomination~~
~~to reconsider is in order on each~~

~~If a majority voting agrees to take up the nomination, cloture~~
~~nomination, and often the motion to~~
~~can be filed on the nomination~~
~~reconsider is laid upon the table, by~~

~~Two days of session later, Senate votes on cloture on the~~
~~nomination (unless the time for the vote is modified by~~
~~unanimous consent, shortly after the~~
~~unanimous consent)~~
unanimous consent, shortly after the vote on the nomination. This action vote on the nomination. This action

prevents any subsequent attempt to prevents any subsequent attempt to

~~If a majority votes for cloture, then after a maximum of two~~
~~hours of consideration (for al but high-ranking nominations~~
~~reconsider.27~~reconsider.26 After the Senate After the Senate acts on a nomination, the Secretary of the Senate attests to a resolution of ~~acts~~
~~that have a maximum of 30 hours; see list in Table 1), Senate~~
~~on a nomination, the Secretary of~~
~~votes on the nomination (time for confirmation vote can also~~
~~the Senate attests to a resolution of~~
~~be set by unanimous consent)~~
confirmation or disapproval and confirmation or disapproval and
transmits it to the White House. transmits it to the White House.
Many nominations are brought up by unanimous consent and approved without objection; routine Many nominations are brought up by unanimous consent and approved without objection; routine
nominations often are grouped by unanimous consent in order to be brought up and approved nominations often are grouped by unanimous consent in order to be brought up and approved
together, or together, or en bloc. Other nominations, . Other nominations, ~~general y~~generally to higher-level positions, may need more to higher-level positions, may need more
consideration. When there is debate on a nomination, the chair of the committee consideration. When there is debate on a nomination, the chair of the committee ~~usual y~~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. Under Senate rules, there are ~~makes an~~
~~opening speech. For positions within a state, Senators from the state may wish to speak on the~~

~~26 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.~~
~~27 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 notice 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 (Riddick’s Senate Procedure, p. 948).~~
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~~nominee, particularly if they were involved in the selection process. Under Senate rules, there are~~
no time limits on debate except when conducted under cloture or a unanimous consent agreement. no time limits on debate except when conducted under cloture or a unanimous consent agreement.
Cloture
Senate Rule XXII provides a means to bring debate on a nomination to a close, if necessary.Senate Rule XXII provides a means to bring debate on a nomination to a close, if necessary.2827
Under the terms of Rule XXII, at least 16 Senators sign a cloture motion to end debate on a Under the terms of Rule XXII, at least 16 Senators sign a cloture motion to end debate on a
pending nomination. The motion proposed is “to bring to a close the debate upon [the pending 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. nomination].” A Senator can interrupt a Senator who is speaking to present a cloture motion.
Cloture may be moved only on a question that is pending before the Senate; therefore, absent Cloture may be moved only 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 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 the motion is filed. After the clerk reads the motion, the Senate returns to the business it was
considering before the presentation of the motion. considering before the presentation of the motion.
Unless a unanimous consent agreement provides otherwise, the Senate does not vote on the Unless a unanimous consent agreement provides otherwise, the Senate does not vote on the
cloture motion until the second day of session after the day it is presented; for example, if the cloture motion until the second day of session after the day it is presented; for example, if the
motion was presented on a Monday, the Senate would act on it on Wednesday. One hour after 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 motion “ripened,” the presiding officer can interrupt the Senate has convened on the day the motion “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 proceedings during an executive session to present a cloture motion for a vote. If the Senate is in
legislativelegislative session when the time arrives for voting on the cloture motion, it proceeds into session when the time arrives for voting on the cloture motion, it proceeds into
executive session prior to taking action on the cloture motion. According to Rule XXII, the executive session prior to taking action on the cloture motion. According to Rule XXII, the
presiding officer first directs the clerk to presiding officer first directs the clerk to ~~cal~~ call the roll to ascertain that a quorum is present, the roll to ascertain that a quorum is present,
although this requirement is often waived by unanimous consent. Senators then vote either yea or 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 nay on the question: “Is it the sense of the Senate that the debate ~~shal~~ shall be brought to a close?” In be brought to a close?” In
April 2017, the Senate reinterpreted Rule XXII in order to April 2017, the Senate reinterpreted Rule XXII in order to ~~al ow~~allow cloture to be invoked on cloture to be invoked on al
all nominations by a majority of Senators voting (a quorum being present), including Supreme Court nominations by a majority of Senators voting (a quorum being present), including Supreme Court
justice nominations.justice nominations.2928 This expanded the results of similar actions taken by the Senate in 26 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 notice 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 (Riddick’s Senate Procedure, p. 948). 27 Although Senate rules have permitted cloture to be moved on nominations since 1949, cloture was not sought on a judicial ~~This expanded the results of similar actions taken by the Senate in~~
~~November 2013, which changed the cloture vote requirement to a majority for nominations~~
except to the Supreme Court.30 Since the Senate has reinterpreted the cloture rule, the number of
~~nominations subjected to cloture motions increased significantly in the Congresses in which the~~
~~Senate was controlled by the same party as the President.31~~
~~Once cloture is invoked, for most nominations there can be a maximum of two hours of post-~~
~~cloture consideration. The two hour maximum includes debate as wel as any actions taken while~~
~~the nomination is formal y pending, including quorum cal s.32 If cloture is invoked on~~
~~nominations to the highest ranking executive branch positions, or on nominations to the Supreme~~
~~Court or the U.S. Circuit Court of Appeals, then the maximum time for consideration after cloture~~
~~is invoked is 30 hours (see Table 1). Under the rule, the 2 or 30 hours is floor time spent~~
~~considering the nomination in the Senate, not simply the passage of time. Thus, for time to count~~

~~28 Although Senate rules have permitted cloture to be moved on nominat ions since 1949, cloture was not sought on a~~
~~judicial~~ nomination until 1968 or on an executive branch nomination until 1980. For data on the nominations subjected nomination until 1968 or on an executive branch nomination until 1980. For data on the nominations subjected
to cloture attempts through the reinterpretation of the cloture rule in 2013to cloture attempts through the reinterpretation of the cloture rule in 2013 , see CRS, see CRS Report RL32878, Report RL32878, Cloture ~~Attem pts~~
~~on Nom inations~~Attempts on Nominations: Data and Historical ~~Developm ent Through Novem ber 20, 2013~~ .
29Development Through November 20, 2013. 28 Congressional Record, daily, daily edition, vol. 163 (April 6, 2017), pp. S2388edition, vol. 163 (April 6, 2017), pp. S2388 ~~-S2390.~~
~~30 Congressional Record, daily edition, vol. 159 (November 21, 2013), pp. S8417 -S8418. See also CRS Report~~
~~R43331, Majority Cloture for Nom inations: Im plications and the “Nuclear” Proceedings of Novem ber 21, 2013 ; and~~
~~CRS Report R44819, Senate Proceedings Establishing Majority Cloture for Suprem e Court Nom inations: In Brief.~~
~~31 CRS Report RL32878,~~ ~~Cloture Attempts on Nominations: Data and Historical Development Through November 20,~~
~~2013; CRS congressional distribution memorandum, “ Nominations with Cloture Motions, 113 th, 114th, and 115th~~
~~Congresses” (available to congressional clients on request from the authors).~~
~~32 For full details on the cloture process, see CRS Report RL30360, Filibusters and Cloture in the Senate.~~
~~Congressional Research Service~~

10

~~link to page 14 link to page 11~~ ~~Senate Consideration of Presidential Nominations: Committee and Floor Procedure~~

-S2390. Congressional Research Service 9 link to page 13 link to page 13 Senate Consideration of Presidential Nominations: Committee and Floor Procedure November 2013, which changed the cloture vote requirement to a majority for nominations except to the Supreme Court.29 Since the Senate has reinterpreted the cloture rule, the number of nominations subjected to cloture motions increased significantly in the Congresses in which the Senate was controlled by the same party as the President.30 Once cloture is invoked, for most nominations there can be a maximum of two hours of post-cloture consideration. The two hour maximum includes debate as well as any actions taken while the nomination is formally pending, including quorum calls.31 If cloture is invoked on nominations to the highest ranking executive branch positions, or on nominations to the Supreme Court or the U.S. Circuit Court of Appeals, then the maximum time for consideration after cloture is invoked is 30 hours (see Table 1). Under the rule, the 2 or 30 hours is floor time spent considering the nomination in the Senate, not simply the passage of time. Thus, for time to count against the 2 or 30-hour maximum, the Senate must be in session and the question must be against the 2 or 30-hour maximum, the Senate must be in session and the question must be
pending. Time spent in recess or adjournment does not count, and if the Senate were to take up pending. Time spent in recess or adjournment does not count, and if the Senate were to take up
other business by unanimous consent, the time spent on that other business also would not count other business by unanimous consent, the time spent on that other business also would not count
against the post-cloture time.against the post-cloture time.
Table 1. Maximum Number of Hours of Post-Cloture Consideration of Nominations
Pursuant to a Reinterpretation of Senate Rules on April 3, 2019 Pursuant to a Reinterpretation of Senate Rules on April 3, 2019
Nomination
Maximum Consideration
U.S. district courts and U.S. district courts and al all other judicial positions except the U.S. other judicial positions except the U.S.
2 hours Supreme Court and the U.S. Circuit Court of AppealsSupreme Court and the U.S. Circuit Court of Appeals
~~2 hours~~
Al All executive branch positions except 21 high-level positions executive branch positions except 21 high-level positions
2 hours 2 hours
21 high-level executive branch positions, 21 high-level executive branch positions, including the head of each including the head of each
~~executive departmenta~~
~~30 hours~~ 30 hours executive departmenta
The U.S. Supreme The U.S. Supreme Court and the U.S. Circuit Court of Appeals Court and the U.S. Circuit Court of Appeals
30 hours 30 hours
Source: Congressional Record, daily edition, vol. 165 (April, daily edition, vol. 165 (April 3, 2019), pp. S2220 and S2225. 3, 2019), pp. S2220 and S2225.
a. The decision excluded positions “at levela. The decision excluded positions “at level I of the Executive Schedule under section 5312 of title 5, United I of the Executive Schedule under section 5312 of title 5, United
States Code,” which, in addition to the 15 heads of departments (14 Secretaries States Code,” which, in addition to the 15 heads of departments (14 Secretaries and the Attorney and the Attorney ~~Gen eral~~General), ),
includes the United States Trade Representative,includes the United States Trade Representative, the Directorthe Director of the Office of Management and Budget, the of the Office of Management and Budget, the
CommissionerCommissioner of Social Security, the Directorof Social Security, the Director of National Drug Control Policy, the Chairman of the Board of National Drug Control Policy, the Chairman of the Board
of Governorsof Governors of the Federalof the Federal ~~Reserve~~ Reserve System, and the DirectorSystem, and the Director of National of National ~~Intel igence.~~
Intelligence. Stacked Cloture Motions
Because of the two-session-day waiting period between when cloture is filed on a nomination and Because of the two-session-day waiting period between when cloture is filed on a nomination and
the cloture vote, it is common for the majority leader to file cloture on several nominations the cloture vote, it is common for the majority leader to file cloture on several nominations
~~sequential y~~sequentially on the same day. Each nomination must be considered separately and on the same day. Each nomination must be considered separately and ~~sequential y~~sequentially
(absent unanimous consent), but the cloture motions can mature simultaneously. The practice of (absent unanimous consent), but the cloture motions can mature simultaneously. The practice of
filing a series of cloture motions on multiple nominations in one day has become common, filing a series of cloture motions on multiple nominations in one day has become common,
~~because it can expedite the process.~~
because it can expedite the process. 29 Congressional Record, daily edition, vol. 159 (November 21, 2013), pp. S8417-S8418. See also CRS Report R43331, Majority Cloture for Nominations: Implications and the “Nuclear” Proceedings of November 21, 2013; and CRS Report R44819, Senate Proceedings Establishing Majority Cloture for Supreme Court Nominations: In Brief. 30 CRS Report RL32878, Cloture Attempts on Nominations: Data and Historical Development Through November 20, 2013; CRS congressional distribution memorandum, “Nominations with Cloture Motions, 113th, 114th, and 115th Congresses” (available to congressional clients on request from the author of this report). 31 For full details on the cloture process, see CRS Report RL30360, Filibusters and Cloture in the Senate. Congressional Research Service 10 link to page 11 Senate Consideration of Presidential Nominations: Committee and Floor Procedure To begin, the Senate agrees to enter executive session to take up a specific nomination, and the To begin, the Senate agrees to enter executive session to take up a specific nomination, and the
majority leader files cloture on that nomination. The Senate next agrees to return to legislative majority leader files cloture on that nomination. The Senate next agrees to return to legislative
session; this session; this ~~al ows~~allows the majority leader to make a motion to enter executive session to take up a the majority leader to make a motion to enter executive session to take up a
second specific nomination (to which the Senate can again immediately agree), and then file second specific nomination (to which the Senate can again immediately agree), and then file
cloture on that second nomination. This process can be repeated for any number of nominations. cloture on that second nomination. This process can be repeated for any number of nominations.
The votes to enter legislative and executive session are The votes to enter legislative and executive session are ~~typical y~~typically voice votes, not roll voice votes, not roll ~~cal~~ call votes. votes.
(See the section (See the section “Taking Up a Nomination” for more information about moving in and out of for more information about moving in and out of
executive session.) executive session.)
Two days of Senate session later, Two days of Senate session later, al all the cloture motions that were filed mature. The first vote the the cloture motions that were filed mature. The first vote the
Senate Senate ~~wil~~ will take is on the cloture motion that was filed first. If cloture is invoked on that take is on the cloture motion that was filed first. If cloture is invoked on that
nomination, the cloture motion on the next nomination would not be voted on until the Senate has nomination, the cloture motion on the next nomination would not be voted on until the Senate has
voted on confirmation of the first nomination. This is because once cloture is invoked on a matter, voted on confirmation of the first nomination. This is because once cloture is invoked on a matter,
the Senate considers that matter to the exclusion of other business, including pending cloture the Senate considers that matter to the exclusion of other business, including pending cloture
motions that have matured. (If cloture on the first nomination failed, however, the Senate would motions that have matured. (If cloture on the first nomination failed, however, the Senate would
vote immediately on the cloture motion on the second nomination on which cloture was filed.)vote immediately on the cloture motion on the second nomination on which cloture was filed.)
This practice This practice ~~al ows~~allows several cloture motions to mature simultaneously over two days. The Senate several cloture motions to mature simultaneously over two days. The Senate
could could ~~potential y~~potentially agree to several nominations on the day that the cloture motions mature because agree to several nominations on the day that the cloture motions mature because
post-cloture consideration is limited to a maximum of two hours on most nominations. It is faster post-cloture consideration is limited to a maximum of two hours on most nominations. It is faster
~~Congressional Research Service~~

11

~~Senate Consideration of Presidential Nominations: Committee and Floor Procedure~~

than filing cloture on a single nomination, waiting two session days, voting for cloture on that than filing cloture on a single nomination, waiting two session days, voting for cloture on that
nomination, debating, and then voting on the nomination—and only then taking up another nomination, debating, and then voting on the nomination—and only then taking up another
nomination and filingnomination and filing cloture on it to start another two session-day waiting period. cloture on it to start another two session-day waiting period.
Holds
A hold is a request by a Senator to his or her party leader to prevent or delay action on a A hold is a request by a Senator to his or her party leader to prevent or delay action on a
nomination or a nomination or a ~~bil~~ bill. Holds are not mentioned in the rules or precedents of the Senate, and they . 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 standing order of the Senate are enforced only through the agenda decisions of party leaders. A standing order of the Senate
aims to ensure that any Senator who places a hold on any matter (including a nomination) make aims to ensure that any Senator who places a hold on any matter (including a nomination) make
public his or her objection to the matter.public his or her objection to the matter.3332
Senators have placed holds on nominations for a number of reasons. One common purpose is to Senators have placed 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 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 place holds because they disagree with the policy positions of the nominee. Senators have
also announced they are placing holds in order to gain concessions from the executive branch on also announced they are placing holds in order to gain concessions from the executive branch on
matters not directly related to the nomination. matters not directly related to the nomination.
The Senate precedents reducing the threshold necessary to invoke cloture on nominations, and the The Senate precedents reducing the threshold necessary to invoke cloture on nominations, and the
recent precedent reducing the time necessary for a cloture process, could affect the practice of recent precedent reducing the time necessary for a cloture process, could affect the practice of
holds. In some sense, holds are connected to the Senate traditions of mutual deference, since they holds. In some sense, 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 may have originated as requests for more time to examine a pending nomination or ~~bil~~ bill. The . The
effectiveness of a hold, however, ultimately has been grounded in the power of the Senator effectiveness of a hold, however, ultimately has been grounded in the power of the Senator
placing the hold to filibuster the nomination and the difficulty of invoking cloture to overcome a placing the hold to filibuster the nomination and the difficulty of invoking cloture to overcome a
filibuster. Invoking cloture is now easier because the support of fewer Senators is necessary, and filibuster. Invoking cloture is now easier because the support of fewer Senators is necessary, and
in most cases, the floor time required for a cloture process is less. The large number of in most cases, the floor time required for a cloture process is less. The large number of
32 The standing order can be found in S.Res. 28 of the 112th Congress. For more information concerning holds, see CRS Report R43563, “Holds” in the Senate. For more information concerning the history, types, and potency of holds, see CRS Report RL31685, Proposals to Reform “Holds” in the Senate. (For a copy of this out-of-print CRS report, congressional clients may contact Elizabeth Rybicki.) Congressional Research Service 11 link to page 13 Senate Consideration of Presidential Nominations: Committee and Floor Procedure nominations submitted by the President for Senate consideration, however, might nominations submitted by the President for Senate consideration, however, might ~~stil~~ still lead lead
Senators to seek unanimous consent to quickly approve nominations. Senators to seek unanimous consent to quickly approve nominations.
Reduced Post-Cloture Time on Nominations:
Reinterpretation of the Rule
On AprilOn April 3, 2019, the Senate reinterpreted Senate Rule XXII to reduce, from 30 hours to 2 hours, 3, 2019, the Senate reinterpreted Senate Rule XXII to reduce, from 30 hours to 2 hours,
the maximum time the maximum time ~~al owed~~allowed for consideration of most nominations after cloture is invoked. The for consideration of most nominations after cloture is invoked. The
Senate took this step by reversing two rulings by the presiding officer. The first vote established Senate took this step by reversing two rulings by the presiding officer. The first vote established
that “postcloture time under rule XXII for that “postcloture time under rule XXII for al all executive branch nominations other than a position executive branch nominations other than a position
at levelat level 1 of the Executive Schedule under section 5312 of title 5 of the United States Code is 2 1 of the Executive Schedule under section 5312 of title 5 of the United States Code is 2
hours.”hours.”3433 On the second vote, the Senate established that “postcloture time under rule XXII for all judicial nominations, other than circuit courts or Supreme Court of the United States, is 2 hours”34 (see Table 1). It is uncommon for the Senate to reverse a decision by the presiding officer.35 Any Senator can attempt to reverse a ruling by making an appeal, and except in specific cases,36 ~~On the second vote, the Senate established that “postcloture time under rule XXII for al~~

~~33 T he standing order can be found in S.Res. 28 of the 112th Congress. For more information concerning holds, see CRS~~
~~Report R43563, “Holds” in the Senate. For more information concerning the history, types, and potency of holds, see~~
~~CRS Report RL31685, Proposals to Reform “Holds” in the Senate. (For a copy of this out-of-print CRS report,~~
~~congressional clients may contact Elizabeth Rybicki.)~~
~~34 T he majority leader made a point of order that such executive branch nominations were subject to two hours of post -~~
~~cloture consideration. T he presiding officer did not sustain the point of order. T he majority lea der appealed the ruling~~
~~of the chair, and the Senate voted 51-48 to reverse the ruling. Congressional Record, daily edition, vol. 165 (April 3,~~
~~2019), p. S2220.~~
~~Congressional Research Service~~

12

~~link to page 14~~ ~~Senate Consideration of Presidential Nominations: Committee and Floor Procedure~~

~~judicial nominations, other than circuit courts or Supreme Court of the United States, is 2 hours”35~~
~~(see Table 1).~~
~~It is uncommon for the Senate to reverse a decision by the presiding officer.36 Any Senator can~~
~~attempt to reverse a ruling by making an appeal, and except in specific cases,37~~ appeals are appeals are
decided by majority vote. In most circumstances, however, appeals are debatable, and therefore decided by majority vote. In most circumstances, however, appeals are debatable, and therefore
supermajority support (through a cloture process) is supermajority support (through a cloture process) is ~~typical y~~typically necessary to reach a vote to reverse necessary to reach a vote to reverse
a decision of the presiding officer. In the April 3 proceedings, however, the appeal was raised a decision of the presiding officer. In the April 3 proceedings, however, the appeal was raised
after cloture had been invoked. Senate Rule XXII states that after a successful cloture vote, after cloture had been invoked. Senate Rule XXII states that after a successful cloture vote,
“appeals from the decision of the presiding officer, “appeals from the decision of the presiding officer, ~~shal~~ shall be decided without debate.”be decided without debate.”3837 Therefore, Therefore,
when the majority leaderwhen the majority leader appealed the rulings of the presiding officer, the questions on whether appealed the rulings of the presiding officer, the questions on whether
the ruling should stand as the judgment of the Senate received a vote without an opportunity for the ruling should stand as the judgment of the Senate received a vote without an opportunity for
extended debate. The Senate voted that the ruling should not stand, and thereby upheld instead extended debate. The Senate voted that the ruling should not stand, and thereby upheld instead
~~the position of the majority leader.~~
~~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 stil wants a nominee considered, he must submit a new nomination~~
~~to the Senate. The Senate can, however, waive this rule by unanimous consent, and it often does~~
~~to al ow nominations to remain “in status quo” between the first and second sessions of a~~
~~Congress or during a long recess. The majority leader or his designee also may exempt specific~~
~~nominees by name from the unanimous consent agreement, al owing them to be returned during~~
~~the recess or adjournment.~~
~~Recess Appointments~~
~~The Constitution, in Article II, Section 2, grants the President the authority to fil temporarily~~
~~vacancies that “may happen during the Recess of the Senate.” These appointments do not require~~

~~35 T he majority leader made a point of order that such judicial branch nominations were subject to two hours of post-~~
~~cloture consideration. T he presiding officer did not sustain the point of order. T he~~the position of the majority leader. 33 The majority leader made a point of order that such executive branch nominations were subject to two hours of post-cloture consideration. The presiding officer did not sustain the point of order. The majority leader appealed the ruling of the chair, and the Senate voted 51-48 to reverse the ruling. Congressional Record, daily edition, vol. 165 (April 3, 2019), p. S2220. 34 The majority leader made a point of order that such judicial branch nominations were subject to two hours of post-cloture consideration. The presiding officer did not sustain the point of order. The majority leader appealed the ruling majority leader appealed the ruling
of the chair, and the Senate voted 51-48 to reverse the ruling. of the chair, and the Senate voted 51-48 to reverse the ruling. Congressional Record, daily edition, vol. 165 (April 3, , daily edition, vol. 165 (April 3,
2019), p. S2225. 2019), p. S2225.
3635 Since Since 1965, the Senate has reversed a decision of the presiding officer 36 times. CRS1965, the Senate has reversed a decision of the presiding officer 36 times. CRS identified reversals through a identified reversals through a
search of roll call votes, and it is possiblesearch of roll call votes, and it is possible (although unlikely) that other reversals occurred without a roll(although unlikely) that other reversals occurred without a roll call vote on call vote on
any associated question. For more information, see CRSany associated question. For more information, see CRS congressional distribution memorandum, “Senate Decisions congressional distribution memorandum, “Senate Decisions
Reversing a RulingReversing a Ruling of the Presiding Officer, 1965-March 31, 2017” (available to congressional clients on request from of the Presiding Officer, 1965-March 31, 2017” (available to congressional clients on request from
the the ~~authors).~~
37author of this report). 36 For example, a limited number For example, a limited number of appeals (e.g., in relation to certain points of order under the Congressional Budget of appeals (e.g., in relation to certain points of order under the Congressional Budget
Act) require a three-fifths vote to reverse a ruling of the chair. Other appeals are decidedAct) require a three-fifths vote to reverse a ruling of the chair. Other appeals are decided by a majority. For more by a majority. For more
information, see CRSinformation, see CRS Report 98-306, Report 98-306, Points of Order, Rulings, and Appeals in the Senate. .
~~38 T his was~~ 37 This was a different parliamentary situation than when the Senate reinterpreted the rule to lower the threshold a different parliamentary situation than when the Senate reinterpreted the rule to lower the threshold
necessary to invoke cloture. In those cases, the appeal could not be made after cloture wasnecessary to invoke cloture. In those cases, the appeal could not be made after cloture was invoked, since it was invoked, since it was
necessary to reinterpret the rule prior to the cloture vote in order to establish the lower threshold. In those cases, the necessary to reinterpret the rule prior to the cloture vote in order to establish the lower threshold. In those cases, the
majority leader made the appeal in between two questions that were not debatable. majority leader made the appeal in between two questions that were not debatable. Riddick’s Senate Procedure states states
that “appeals arising in connection with a non-debatable motion” are not debatable (p. 726). that “appeals arising in connection with a non-debatable motion” are not debatable (p. 726). ~~T he~~The particular particular
parliamentary actions of November 21, 2013, were uniqueparliamentary actions of November 21, 2013, were unique in that it was the first time an appeal wasin that it was the first time an appeal was ~~made~~ made after a after a
motion to reconsider a cloture vote was agreedmotion to reconsider a cloture vote was agreed to, but before the cloture vote. to, but before the cloture vote. ~~T he~~The same procedural steps were same procedural steps were followed followed
on April 6, 2017, in relation to the vote necessary to invoke cloture on Supreme Court on April 6, 2017, in relation to the vote necessary to invoke cloture on Supreme Court ~~nomin ations~~nominations. .
Congressional Research Service Congressional Research Service

1312 Senate Consideration of Presidential Nominations: Committee and Floor Procedure 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, 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 or during a long recess. 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.38 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

~~Senate Consideration of Presidential Nominations: Committee and Floor Procedure~~

the advice and consent of the Senate; the appointees temporarily the advice and consent of the Senate; the appointees temporarily ~~fil~~ fill the vacancies without Senate the vacancies without Senate
confirmation. In most cases, recess appointees have also been nominated to the positions to which 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 of an individual they were appointed. Furthermore, when a recess appointment is made of an individual
previously nominated to the position, the President previously nominated to the position, the President ~~usual y~~usually submits a new nomination to the 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. Senate in order to comply with a provision of law affecting the pay of recess appointees (5 U.S.C.
5503(a)). Recess appointments have sometimes been controversial and have 5503(a)). Recess appointments have sometimes been controversial and have ~~occasional y~~occasionally led to led to
inter-branch conflict.39 inter-branch conflict.39

Author Information

Elizabeth Rybicki Elizabeth Rybicki

Specialist on Congress and the Legislative Process Specialist on Congress and the Legislative Process

38 For more information, see CRS Report R46664, Return of Nominations to the President under Senate Rule XXXI. 39 For more information on recess appointments, see CRS Report RS21412, Temporarily Filling Presidentially Appointed, Senate-Confirmed Positions; CRS Report RS21308, Recess Appointments: Frequently Asked Questions; CRS Report RL33310, Recess Appointments Made by President George W. Bush; and CRS Report R42329, Recess Appointments Made by President Barack Obama. Congressional Research Service 13 Senate Consideration of Presidential Nominations: Committee and Floor Procedure

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material from a third party, you may need to obtain the permission of the copyright holder if you wish to material from a third party, you may need to obtain the permission of the copyright holder if you wish to
copy or otherwise use copyrighted material. copy or otherwise use copyrighted material.

~~39 For more information on recess appointments, see CRS Report RS21412,~~ ~~Temporarily Filling Presidentially~~
~~Appointed, Senate-Confirm ed Positions; CRS Report RS21308, Recess Appointm ents: Frequently Asked Questions;~~
~~CRS Report RL33310, Recess Appointm ents Made by President George W. Bush ; and CRS Report R42329,~~ ~~Recess~~
~~Appointm ents Made by President Barack Obam a~~ .
~~Congressional Research Service~~
~~RL31980~~ ~~· VERSION 25~~ Congressional Research Service RL31980 · VERSION 27 · UPDATED
14 14