Return of Nominations to the President Under December 15, 2023
Senate Rule XXXI
Michael Greene
Nominations that have been neither confirmed nor rejected by the Senate at the time the Senate
Analyst on Congress and
adjourns sine die or for a period of more than 30 days are returned to the President pursuant to
the Legislative Process
Senate Rule XXXI, clause 6.
Pro forma sessions held during a recess of the Senate count as days
in session and can prevent what would otherwise be a greater than 30-day recess that would
trigger the return of nominations under the rule. The use of
pro forma sessions in modern Senate
practice means that the need to suspend Rule XXXI usually only occurs at the end of the 1st
session of a Congress.
The Senate routinely holds over at least some nominations between sessions of Congress or recesses lasting more than 30
days. Nominations can be held over if the Senate agrees, by unanimous consent, to suspend the rule. Unanimous consent
agreements to waive the rule might be applied to some or all nominations pending before the Senate and its committees.
Nominations chosen to be held over are typically negotiated by party and committee leaders, though individual Senators have
leverage in negotiations as any objection to a unanimous consent request would kill it. Nominations for which the rule has
been suspended remain in status quo, meaning they continue to be pending on the
Executive Calendar instead of being
returned to the President as required under Senate rules. The Senate returns all nominations at the end of a Congress.
If a nomination is returned to the President, it is no longer eligible for consideration by the Senate. The President may submit
a new nomination, either for the previously returned nominee or for a new candidate. This new nomination is referred to its
committee of jurisdiction, which must report out or be discharged before the Senate can vote on confirmation (even if the
nominee had previously been considered and reported by the committee under a prior nomination). Committees have broad
latitude in determining what they will require from a resubmitted nominee, whether that means updating paperwork and
questionnaires provided to the committee and/or having a nominee participate in a confirmation hearing where the nominee
would face questions from committee members.
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Return of Nominations to the President Under Senate Rule XXXI
Contents
Introduction ..................................................................................................................................... 1
Rule XXXI, Paragraph 6 ................................................................................................................. 1
Waiving the Rule ............................................................................................................................. 2
Examples of Status Quo Consent Agreements ................................................................................ 3
Effect of Pro Forma Sessions on Return of Nominations ............................................................... 4
Consideration of Resubmitted Nominations.................................................................................... 4
Contacts
Author Information .......................................................................................................................... 5
Congressional Research Service
Return of Nominations to the President Under Senate Rule XXXI
Introduction
Under the Constitution, the President has the power to appoint individuals to certain positions “by
and with the Advice and Consent of the Senate.”1 Hundreds of nominations are submitted by the
President and considered by the Senate each Congress.2 The lifecycle of a nomination concludes
when the Senate votes to confirm or reject a nominee, when it is withdrawn by the President, or
when it is returned to the President by the Senate. This report discusses the return of nominations
as provided for under Senate Rule XXXI. It describes requirements under the rule, explains how
the Senate routinely waives the rule, and addresses questions on related topics.
Rule XXXI, Paragraph 6
Rule XXXI, paragraph 6, limits the period of time that the Senate can consider nominations
submitted to the chamber by the President. The rule does so in two ways: first, by limiting action
on a nomination to the session during which it was submitted; and second, by directing the
Secretary of the Senate to return nominations “not finally acted upon” to the President when the
Senate adjourns or recesses for more than 30 days.
Senate Rule XXXI, Paragraph 6
Nominations neither confirmed nor rejected during the session at which they are made
shall not be acted upon at any succeeding session without being again made to the
Senate by the President; and if the Senate shall adjourn or take a recess for more than
thirty days, all nominations pending and not finally acted upon at the time of taking
such adjournment or recess shall be returned by the Secretary to the President, and shall
not again be considered unless they shall again be made to the Senate by the President.
Unlike a number of Senate rules which require proactive enforcement, nominations that have
been neither confirmed nor rejected are automatically returned under Rule XXXI when the Senate
has adjourned
sine die at the end of a session or has recessed for a period of more than 30 days.3
In other words, the Senate must take action to prevent the return of nominations to the President
under the rule. Nominations returned in this way are permanently disposed of and no longer
pending before the Senate. Further consideration can only occur if and when the President
submits a new nomination to the Senate. However, in modern practice, this rule is frequently
waived for at least some nominations. By waiving the rule, nominations that would have
otherwise been returned to the President remain before the Senate and can be considered into the
next session.
1 Article II, Section 2.
2 For more reading on the confirmation process in the Senate, see CRS Report RL31980,
Senate Consideration of
Presidential Nominations: Committee and Floor Procedure, by Elizabeth Rybicki.
3 Each two-year Congress is comprised of two regular annual sessions, which convene on January 3 of each year as
required by the Constitution and, in modern practice, are usually not adjourned
sine die until the very end of the year
(or just at the start of the new one). See CRS Report R42977,
Sessions, Adjournments, and Recesses of Congress, by
Richard S. Beth and Valerie Heitshusen for further discussion of these concepts.
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Return of Nominations to the President Under Senate Rule XXXI
Waiving the Rule
As already discussed, if the Senate takes no action prior to adjourning
sine die or recessing for
more than 30 days, nominations for which no final action has been taken will be returned to the
President. To prevent this, the Senate frequently reaches unanimous consent to waive Rule XXXI,
paragraph 6 before the start of a recess longer than 30 days or to allow nominations to carry over
from the first to the second session.4 According to Senate precedents, the rule can only be waived
by unanimous consent.5 At the end of a Congress, the Senate returns all nominations to the
President.
A unanimous consent request to hold over nominations is usually propounded by the majority or
minority leaders or their designees, depending on the party of the President, though any Senator
may do so.6 These requests contain language asking that certain or all pending nominations be
kept in status quo, notwithstanding the rule.7 In determining which nominations should be held
over or returned, the party leaders typically consult each other and also ask committee leaders for
their input. Because the objection of any Senator can defeat a unanimous consent request,
individual Senators also have leverage to negotiate whether certain nominees will be held over or
not.
Once the request is offered on the floor and assuming no Senator objects, any nominations
designated as being held in status quo would continue on in their respective places, either pending
before committees or on the Senate’s
Executive Calendar. On occasion, the Senate has failed to
reach unanimous consent to waive this rule, resulting in the return of hundreds of nominations to
the President.8 In recent years, while unanimous consent continues routinely to be reached to hold
over some nominations, larger numbers of nominations have been returned to the President
during adjournments between sessions of the Senate.9
4 See Floyd M. Riddick and Alan S. Frumin,
Riddick’s Senate Procedure: Precedents and Practices, 101st Cong.,
1st sess., S.Doc. 101-28 (Washington: GPO, 1992), p. 947.
5 Floyd M. Riddick and Alan S. Frumin,
Riddick’s Senate Procedure: Precedents and Practices, 101st Cong., 2nd sess.,
S.Doc. 101-28 (Washington: GPO, 1992), p. 946. It appears that a motion to suspend the rule—requiring notice of one
day and a two-thirds vote—would not be allowed. The only citation provided by
Riddick’s, regarding the ineligibility
of a motion to waive the rule, cites to an instance from 1974 where Senator Hugh Scott made a motion to waive the rule
(at the time designated under Rule XXXVIII) “as to routine nominations at the desk” in order to prevent their return to
the President. The presiding officer then advises that “a unanimous consent request is necessary” and the rule is then
waived by unanimous consent (
Congressional Record, vol. 120 (October 9, 1974), p. 34658). Notably, an examination
of the
Congressional Record shows that Senator Scott did not give one day’s notice in writing of his intent to offer this
motion, which would be required under Paragraph 1 of Senate Rule V if he intended to move to suspend the rule.
6 In cases of divided government, with the President of a different party than the majority in the Senate, the minority
party usually propounds the request to hold over nominations.
7 Recent examples of unanimous consent requests can be found at
Congressional Record, daily edition, vol. 165
(December 19, 2019), p. S7238;
Congressional Record, daily edition, vol. 163 (January 2, 2018), p. S8289; and,
Congressional Record, daily edition, vol. 163 (December 21, 2017), p. S8241.
8 This most recently occurred on December 30, 2013, when an objection was made to a unanimous consent request to
hold over all nominations received in the Senate during the first session of the 113th Congress (2013-2014) into the
second session. (
Congressional Record, daily edition, vol. 159 (December 20, 2013), p. S9089). As a result, 281
nominations were returned to the President at the end of the first session of the 113th Congress. It appears the objection
to holding over these nominations was in reaction to the majority party’s reinterpretation of Senate Rule XXII one
month prior, on November 21, 2013. The rule was reinterpreted to mean that cloture on all nominations, except those
made to the Supreme Court, only required a simple majority as opposed to a three-fifths supermajority. For further
reading, see CRS Report R43331,
Majority Cloture for Nominations: Implications and the “Nuclear” Proceedings of
November 21, 2013, by Valerie Heitshusen.
9 For example, at the end of the 1st session of the 114th Congress (2015-2016), the Senate reached unanimous consent to
(continued...)
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Return of Nominations to the President Under Senate Rule XXXI
Examples of Status Quo Consent Agreements
The structure of a unanimous consent agreement to hold over nominations in status quo can vary.
The Senate may choose to hold over all nominations, only specific individuals, or none at all (in
which case no action would need to be taken). The following examples illustrate how unanimous
consent requests can vary to effect what nominations are or are not held over.
In certain circumstances, the Senate might choose to hold over all nominations it has not yet acted
on. A recess of more than 30 days that would trigger the return of nominations might not be
optimal for the Senate when it would otherwise still have several months of the session to
consider pending nominees. In the example below, the Senate reached consent to hold over all
pending nominations prior to a 32-day recess from August 7, 2015, to September 8, 2015.
I ask unanimous consent that all the nominations received by the Senate during the 114th
Congress, first session, remain in status quo, notwithstanding the provisions of rule XXXI,
paragraph 6, of the Standing Rules of the Senate.10
In some cases, dozens or possibly hundreds of specific nominations are requested to be held over.
The request below references a list of names sent to the desk which was then reprinted in the
Congressional Record and organized by committee of jurisdiction.
Mr. President, I send a list of nominations to the desk and ask that they be kept in status
quo despite the sine die adjournment of the 1st session of the 116th Congress.
The PRESIDING OFFICER. Without objection, it is so ordered. The nominations in status
quo are as follows…11
In this final example, the Senate consented to hold over all nominations except for two specific
nominees as identified directly in the request by their PN or Presidential Nomination numbers.12
An inverse of the previous example, it lists those nominations that are not to be held over.
I ask unanimous consent that all the nominations received by the Senate during the 114th
Congress, first session, remain in status quo, notwithstanding the provisions of rule XXXI,
paragraph 6, of the Standing Rules of the Senate, with the exception of PN128 and
PN214.13
hold over all but two nominations into the 2nd session (
Congressional Record, daily edition, vol. 161 (December 18,
2015), p. S8913). The following two Congresses saw more nominations returned than held over between each session.
At the end of the first session of the 115th Congress (2017-2018), the Senate reached unanimous consent to hold over
97 nominations while 98 other nominations were returned to the President (
Congressional Record, daily edition, vol.
163 (December 21, 2017), p. S8241). Between the first and second sessions of the 116th Congress (2019-2020), the
Senate agreed to hold over 95 nominations, while 113 other nominations were returned (
Congressional Record, daily
edition, vol. 165 (December 19, 2019), pp. S7238-S7239).
10
Congressional Record, daily edition, vol. 161 (August 5, 2015), p. S6356.
11
Congressional Record, daily edition, vol. 165 (December 19, 2019), p. S7238.
12 PNs are assigned to nominations by the Senate Executive Clerk upon receipt in the chamber. The number represents
the sequential order in which it was received in the Senate from the President.
13
Congressional Record, daily edition, vol. 161 (December 18, 2015), p. S8913.
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Return of Nominations to the President Under Senate Rule XXXI
Effect of Pro Forma Sessions on Return of
Nominations
Under the Constitution, neither the House of Representatives nor the Senate may adjourn for
more than three days without the consent of the other.14 To comply with this constitutional
requirement during extended adjournments, the Senate will sometimes reach unanimous consent
to briefly convene every three days for short sessions where little or no business is conducted.15
These meeting days, commonly referred to as
pro forma sessions, are considered as a regular
session day of the Senate when determining the duration of a recess under Rule XXXI, paragraph
6.16 As a result,
pro forma sessions held during what would otherwise be an adjournment of 30 or
more days can otherwise prevent the return of nominations under the rule.17
Consideration of Resubmitted Nominations
For a returned nominee to be eligible for further consideration, the President must submit a new
nomination to the Senate.18 Even if the nomination is for the same person to the same position
that was considered in the prior session, it is new—from a procedural standpoint—in the Senate,
and is referred to the appropriate committee(s) of jurisdiction. Committees may require updated
paperwork from nominees, including financial and ethical disclosures, answers to questionnaires,
and other documents otherwise required under a committee’s rules. Hearings can be held on
resubmitted nominees, although committees frequently opt not to do so when a hearing was held
on the preliminary nomination. As with any referral, a committee must report the nomination to
the Senate or be discharged from considering the nomination before the full Senate can hold a
vote on confirmation. In lieu of holding a business meeting to report out a nomination, some
committees may informally poll their members to see if there is any objection to a consent request
to be discharged by the Senate.
The Senate may determine it is advantageous to prevent certain nominations from being returned
to the President. By keeping nominations in status quo between sessions, committees would not
have to consider potentially hundreds of nominees that they had already taken time to report to
the Senate. Alternatively, allowing nominations to be returned to the President can be a useful
signal to the Administration that a nominee does not have sufficient support to get confirmed in
the Senate and that another candidate should be nominated instead.
14 Article 1, Section 5.
15 See,
Congressional Record, daily edition, vol. 166 (August 13, 2020), p. S5413, for an example of a unanimous
consent request that the Senate “adjourn to then convene for
pro forma sessions only, with no business being
conducted” on specific dates.
16 For further reading on
pro forma sessions, see CRS Report R42977,
Sessions, Adjournments, and Recesses of
Congress, by Richard S. Beth and Valerie Heitshusen.
17 For example, from August 2, 2019, to September 9, 2019, the Senate only convened for 11
pro forma sessions but
was otherwise adjourned. These
pro forma sessions disrupted what would have otherwise been a greater than 30-day
adjournment of the Senate to which Rule XXXI, paragraph 6 would have applied. See
Congressional Record, daily
edition, vol. 165 (August 1, 2019), p. S5321.
18 This resubmission process by the Senate can and has occurred as late as the final weeks of a presidential term prior to
the inauguration of a new President on January 20th. For more information, see CRS distribution memo “Senate
consideration of nominations made during the final month of a presidential administration,” by Michael Greene. Copies
are available from the author upon congressional request.
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Return of Nominations to the President Under Senate Rule XXXI
Author Information
Michael Greene
Analyst on Congress and the Legislative Process
Disclaimer
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