Senate Consideration of Presidential Nominations: Committee and Floor Procedure

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

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

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
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
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
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
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 business .
All nominations reported from committee or discharged are listed on the Executive Calendar, a separate document from the
Calendar of Business, which lists pending bills and resolutions. Generally speaking, the majority leader schedules floor
consideration of nominations on the Calendar. Nominations are considered in “executive session,” a parliamentary form of
the Senate in session that has its own journal and, to some extent, its own rules of procedure.
The 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
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
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
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).
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
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
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, 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
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 that are pending when the Senate adjourns sine die 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,
clause 6). If a nomination is returned, and the President s till desires Senate consideration, he must submit a new nomination.
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Contents
Introduction ................................................................................................................... 1
Receipt and Referral and “Privileged Nominations” ............................................................. 2
Committee Procedures ..................................................................................................... 4
Written Rules ............................................................................................................ 4
Investigations............................................................................................................ 4
Hearings .................................................................................................................. 5
Reporting ................................................................................................................. 6
Discharging a Committee from Consideration of a Nomination......................................... 6

Floor Procedures ............................................................................................................. 7
Executive Calendar .................................................................................................... 7
Executive Session ...................................................................................................... 8
Taking Up a Nomination............................................................................................. 8
Consideration and Disposition ..................................................................................... 9
Steps to Consider a Nomination Using S.Res. 27 Discharge Process and Cloture............ 9
Cloture................................................................................................................... 10
Stacked Cloture Motions ..................................................................................... 11
Holds..................................................................................................................... 12
Reduced Post-Cloture Time on Nominations: Reinterpretation of the Rule ............................. 12
Nominations Returned to the President ............................................................................. 13
Recess Appointments..................................................................................................... 13


Tables
Table 1. Maximum Number of Hours of Post-Cloture Consideration of Nominations............... 11

Contacts
Author Information ....................................................................................................... 14

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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 shal appoint officers of the
United States “by and with the Advice and Consent of the Senate.” The method by which the
Senate provides advice and consent on presidential nominations, referred to broadly as the
confirmation process, serves several purposes. First, largely through committee investigations and
hearings, the confirmation process al ows the Senate to examine the qualifications of nominees
and any potential conflicts of interest. Second, Senators can influence policy through the
confirmation process, either by rejecting nominees or by extracting promises from nominees
before granting consent. Also, the Senate sometimes has delayed the confirmation process in
order to increase its influence with the executive branch on unrelated matters.
Senate confirmation is required for several categories of government officials. Military
appointments and promotions make up the majority of nominations, approximately 65,000 per
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
promotions in the Foreign Service, are routine. Civilian nominations considered by the Senate
also include federal judges and specified officers in executive departments, independent agencies,
and regulatory boards and commissions.
Many presidential appointees are confirmed routinely by the Senate. With tens of thousands of
nominations each Congress, the Senate cannot possibly consider them al in detail. A regularized
process facilitates quick action on thousands of government positions. The Senate may approve
en bloc hundreds of nominations at a time, especial y military appointments and promotions.
The process also al ows for close scrutiny of candidates when necessary. Each year, a few
hundred nominees to high-level positions are regularly subject to Senate investigations and public
hearings. Most of these are routinely approved, while a smal number of nominations are disputed
and receive more attention from the media and Congress. Judicial nominations, particularly
Supreme Court appointees, are general y subject to greater scrutiny than nominations to executive
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 likely to
be confirmed, than nominees for non-policy positions.2
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
Senate. In addition, some sentiment exists in the Senate that the selection of persons to fil
executive branch positions is largely a presidential prerogative. Historical y, the President has
been granted wide latitude in the selection of his Cabinet and other high-ranking executive branch
officials.3

1 For more information on the consideration of Supreme Court nominations, see CRS Report RL33225, Supreme Court
Nom inations, 1789 to 2020: Actions by the Senate, the Judiciary Com m ittee, and the President
; CRS Report RL33247,
Suprem e Court Nom inations: Senate Floor Procedure and Practice, 1789 -2011; and CRS Report RL33118, Speed of
Presidential and Senate Actions on Suprem e Court Nom inations, 1900 -2010
.
2 CRS Report 93-464, Senate Action on Nominations to Policy Positions in the Executive Branch, 1981-1992. (For a
copy of this out-of-print CRS report, congressional clients may contact Elizabeth Rybicki.)
3 Joseph P. Harris, The Advice and Consent of the Senate (New York: Greenwood Press Publishers, 1968), p. 2;
Richard Allan Baker, “Legislative Power Over Appointments and Confirmations,” in Joel Silbey, ed., Encyclopedia of
the Am erican Legislative System
(New York: C. Scribner’s Sons, 1994), vol. 3, p. 1616.
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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
process, so he may decide to consult with Senators prior to choosing a nominee. Senators most
likely to be consulted, typical y by White House congressional relations staff, are Senators from a
nominee’s home state, leaders of the committee of jurisdiction, and leaders of the President’s
party in the Senate. Senators of the President’s party are sometimes invited to express opinions or
even propose candidates for federal appointments in their own states.4 There is a long-standing
custom of “senatorial courtesy,” whereby the Senate wil sometimes decline to proceed on a
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.
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
judgeships, as wel 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
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
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
detail in other CRS Reports.7
Receipt and Referral and “Privileged Nominations”
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 actual y assigns
numbers to the presidential messages, not to individual nominations, so a message listing several
nominations would receive a single number. Except by unanimous consent, the Senate cannot
vote on nominations the day they are received, and most are referred immediately to committees.
Senate Rule XXXI provides that nominations shal be referred to appropriate committees “unless
otherwise ordered.” A standing order of the Senate provides that some nominations to specified
positions wil 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 Executive Calendar, a

4 “Report of the T ask Force on the Confirmation Process,” Congressional Record, vol. 138 (February 4, 1992), pp.
1348-1352.
5 For more on senatorial courtesy and its history, see CRS Report RL34405, Role of Home State Senators in the
Selection of Lower Federal Court Judges
; and CRS Report RL31948, Evolution of the Senate’s Role in the Nom ination
and Confirm ation Process: A Brief History
. (For a copy of this out-of-print CRS report, congressional clients may
contact Elizabeth Rybicki.)
6 Sen. Bill Frist, “Judicial Nominations,” Congressional Record, daily edition, vol. 149 (November 12, 2003), pp.
S14528-S14529; Sen. Bill Frist, “ Fulfilling Duty, Preserving Legacy: Nominee Confirmations,” Congressional Record,
daily edition, vol. 152 (December 6, 2006), p. S115999; Sen. Harry Reid, “ Stopping Progress,” Congressional Record,
daily edition, October 31, 2009, pp. S10946 -S10947; Sen. Harry Reid, “ Rules Reform,” Congressional Record, daily
edition, vol. 159 (November 21, 2013), pp. S8414 -S8415.
7 CRS Report R41872, Presidential Appointments, the Senate’s Confirmation Process, and Changes Made in the 112th
Congress
; CRS 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 Report R43331, Majority Cloture for Nom inations: Im plications
and the “Nuclear” Proceedings of November 21, 2013
; and CRS Report R44819, Senate Proceedings Establishing
Majority Cloture for Suprem e Court Nom inations: In Brief
.
8 S.Res. 116, 112th Congress.
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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
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
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
committee. (See “Executive Calendar” below.) Importantly, at any time that the nomination is
listed in the new section of the Executive Calendar, any Senator can request that a nomination be
referred, and it is then sent to the appropriate committee of jurisdiction.10
Formal y the presiding officer, but administratively the executive clerk’s office, refers the
nominations to committees according to the Senate’s rules and precedents. The Senate rule
concerning committee jurisdictions (Rule XXV) broadly defines issue areas for committees, and
the same jurisdictional statements general y apply to nominations as wel as legislation.11 An
executive department nomination can be expected to be referred to the committee with
jurisdiction over legislation concerning that department or to the committee that handled the
legislation creating the position. Judicial branch nominations, including judges, U.S. attorneys,
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
The number of nominations referred to various committees differs considerably. The Committee
on Armed Services, which handles al military appointments and promotions, receives the most.
The two other committees with major confirmation responsibilities are the Committee on the
Judiciary, with its jurisdiction over nominations in the judicial branch, and the Committee on
Foreign Relations, which considers ambassadorial and other diplomatic appointments.
Occasional y, nominations are referred to more than one committee, either jointly or sequential y.
A joint referral might occur when the jurisdictional claim of two committees is essential y equal.
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
jurisdictional claims, then the nomination is more likely to be sequential y referred. In this c ase,
the first committee must report the nomination before it is sequential y referred to the second
committee. The second referral often is subject to a requirement that the committee report within
a certain number of days. Typical y, nominations are jointly or sequential y referred by
unanimous consent. Sometimes the unanimous consent agreement applies to al future
nominations to a position or category of positions.13

9 See CRS Report 98-438, The Senate’s Executive Calendar.
10 For more information on privileged nominations, see CRS 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
CRS Report RL30959, Presidential Appointee Positions Requiring Senate Confirm ation and Com m ittees Handling
Nom inations
.
12 For example, nominations of two members of the T hrift Depositor Protection Oversight Board are referred to the
Committee on Banking, Housing, and Urban Affairs (12 U.S.C. 1441a). Nominations of the U.S. T rade Representative
and Deputy U.S. T rade Representative are referred to the Committee on Finance (19 U.S.C. 2171).
13 See, for example, “Joint Referral of Department of Energy Nominations,” Congressional Record, vol. 136 (June 28,
1990), pp. 16573-16574.
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Senate Consideration of Presidential Nominations: Committee and Floor Procedure

Committee Procedures
Written Rules
Most Senate committees that consider nominations have written rules concerning the process.
Although committee rules vary, most contain standards concerning information to be gathered
from a nominee. Many committees expect a biographical résumé and some kind of financial
statement listing assets and liabilities. Some specify the terms under which financial statements
wil or wil not be made public.
Committee rules also frequently contain timetables outlining the minimum layover required
between committee actions. A common timing provision is a requirement that nominations be
held for one or two weeks before the committee proceeds to a hearing or a vote, permitting
Senators time to review a nomination before committee consideration. Other committee rules
specifical y mandate a delay between steps of the process, such as the receipt of pre-hearing
information and the date of the hearing, or the distribution of hearing transcripts and the
committee vote on the nomination. Some of the written rules also contain provisions for the rules
to be waived by majority vote, by unanimous consent, or by the chair and the ranking minority
member.14
Investigations
Committees often gather and review information about a nominee either before or instead of a
formal hearing. Because the executive branch acts first in selecting a nominee, congressional
committees are sometimes able to rely partial y on any field investigations and reports conducted
by the Federal Bureau of Investigation (FBI). Records of FBI investigations are provided only to
the White House, although a report or a summary of a report may be shared, with the President’s
authorization, with Senators on the relevant committee. The practices of the committees with
regard to FBI materials vary. Some rarely if ever request them. On other committees, the chair
and ranking Member review any FBI report or summary, but on some committees these materials
are available to any Senator upon request. Committee staff usual y do not review FBI materials.
Almost al nominees are also asked by the Office of the Counsel to the President to complete an
“Executive Personnel Financial Disclosure Report, SF-278,” which is reviewed and certified by
the relevant agency as wel as the Director of the Office of Government Ethics. The documents
are then forwarded to the relevant committee, along with opinion letters from ethics officers in
the relevant agency and the director of the Office of Government Ethics. In contrast to FBI
reports, financial disclosure forms are made public. Al committees review financial disclosure
reports and some make them available in committee offices to Members, staff, and the public.
To varying degrees, committees also conduct their own information-gathering exercises. Some
committees, after reviewing responses to their standard questionnaire, might ask a nominee to
complete a second questionnaire. Committees frequently require that written responses to these
questionnaires be submitted before a hearing is scheduled. The Committee on the Judiciary sends
form letters, sometimes cal ed “blue slips,” to Senators from a nominee’s home state to determine
whether they support the nomination.15 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
.
15 For more information, see CRS Report RL34405, Role of Home State Senators in the Selection of Lower Federal
Court Judges
.
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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
Government Accountability Office (GAO).
It is not unusual for nominees to meet with committee staff prior to a hearing. High-level
nominees may meet privately with Senators. General y speaking, these meetings, sometimes
initiated by the nominee, serve basical y to acquaint the nominee with the Members and
committee staff, and vice versa. They occasional y address substantive matters as wel . A
nominee also might meet with the committee’s chief counsel to discuss the financial disclosure
report and any potential conflict-of-interest issues.
Hearings
Historical y, approximately half of al civilian appointees were confirmed without a hearing.16 Al
committees that receive nominations do hold hearings on some nominations, and the likelihood of
hearings varies with the importance of the position and the workload of the committee. The
Committee on the Judiciary, for example, which receives a large number of nominations, does not
usual y hold hearings for U.S. attorneys, U.S. marshals, or members of part-time commissions.
The Committee on Agriculture, Nutrition, and Forestry and the Committee on Energy and Natural
Resources, on the other hand, typical y hold hearings on most nominations that are referred to
them. Committees often combine related nominations into a single hearing.
The length and nature of hearings varies. One or both home-state Senators wil often introduce a
nominee at a hearing. The nominee typical y testifies at the hearing, and occasional y the
committee wil invite other witnesses, including Members of the House of Representatives, to
testify as wel . Some hearings function as routine welcomes, while others are directed at
influencing the policy program of an appointee. In addition to policy views, hearings might
address the nominee’s qualifications and potential conflicts of interest. Senators also might take
the opportunity to ask questions of particular concern to them or their constituents.
Committees sometimes send questions to nominees in advance of a hearing and ask for written
responses. Nominees also might be asked to respond in writing to additional questions after a
hearing. Especial y for high-level positions, the nomination hearing may be only the first of many
times an individual wil 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
committee.17
Hearings, under Senate Rule XXVI, are open to the public unless closed by majority vote for one
of the reasons specified in the rule. Witness testimony is sometimes made available online
through the website of the relevant committee and also through several commercial services,
including Congressional Quarterly. Most committees print the hearings, although no rule requires
it. The number of Senators necessary to constitute a quorum for the purpose of taking testimony
varies from committee to committee, but it is usual y smal er than a majority of the
membership.18

16 T he estimate excludes military appointees as well as civilian appointees usually submitted on lists to the Senate.
Civilian nominations usually submitted on lists include appointments to, and promotions in, the Foreign Service, 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.
17 Roger H. Davidson and Walter J. Oleszek, Congress and Its Members, 9th ed. (Washington: CQ Press, 2004), p. 324.
18 For more details concerning hearings, see CRS 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
Senate favorably, unfavorably, or without recommendation, or it may choose to take no action at
al . 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
favorably, subject to the commitment of the nominee to testify before a Senate committee.
Sometimes, committees choose to report a nomination without recommendation. Even if a
majority of Senators on a committee do not agree that a nomination should be reported favorably,
a majority might agree to report a nomination without a recommendation in order to permit a vote
by the whole Senate.
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
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.
Most of the time, committees do not formal y present reports on nominations on the floor of the
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
in the Congressional Record and placed on the Executive Calendar. If a report were presented on
the floor, it would have to be done in executive session. Executive session and the Executive
Calendar
wil 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.19
Discharging a Committee from Consideration of a Nomination
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
al ow 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
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 and Alan S.
Frumin, Riddick’s Senate Procedure: Precedents and Practices, 101st Cong., 2nd sess., S.Doc. 101-28 (Washington:
GPO, 1992) (hereinafter Riddick’s Senate Procedure), p. 943. A legislative day begins 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
because the Senate does not always adjourn 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
from its legislative business. Al nominations reported from committee, regardless of whether
they were reported favorably, unfavorably, or without recommendation, are listed on the
Executive Calendar, a separate document from the Calendar of Business, which lists pending
bil s and resolutions. Usual y, the majority leader schedules the consideration of nominations on
the Calendar. Nominations are considered in executive session, a parliamentary form of the
Senate in session that has its own journal and, to some extent, its own rules of procedure.
Executive Calendar
After a committee reports a nomination or is discharged from considering it, the nomination is
assigned a number by the executive clerk and placed on the Executive Calendar. Under a standing
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.22 The list of nominations in
the Executive Calendar includes basic information such as the name and office of the nominee,
the name of the previous holder of the office, and whether the committee reported the nomination
favorably, unfavorably, or without recommendation. Long lists of routine nominations are printed
in the Congressional Record and identified only by a short title in the Executive Calendar, such
as “Foreign Service nominations (84) beginning John F. Aloia, and ending Paul G. Churchil .” In
addition to reported nominations and treaties, the Executive Calendar contains the text of any
unanimous consent 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 Executive Calendar is distributed to Senate personal offices and committee offices when
there is business on it. It is also available online by following the link to “Calendars and
Schedules” on the Virtual Reference Desk under the Reference tab of the Senate website
(www.Senate.gov).23
Executive Session
Business on the Executive Calendar, which consists of nominations and treaties, is considered in
executive session. In contrast, al measures and matters associated with lawmaking are considered
in legislative session. Until 1929 executive sessions were also closed to the public, but now they
are open unless ordered otherwise by the Senate.
The Senate usual y begins the day in legislative session and enters executive session either by a
non-debatable motion or, far more often, by unanimous consent. Only if the Senate adjourned or
recessed while in executive session would the next meeting automatical y open in executive
session. The motion to go into executive session can be offered at any time, is not debatable, and
cannot be laid upon the table.
Al business concerning nominations, including seemingly routine matters such as requests for
joint referral or motions to print hearings, must be done in executive session. In practice, Senators
often make such motions or unanimous consent requests “as if in executive session.” These
usual y brief proceedings during a legislative session do not constitute an official executive
session. In addition, at the start of each Congress, the Senate adopts a standing order, by
unanimous consent, that al ows the Senate to receive nominations from the President and for
them to be referred to committees even on days when the Senate does not meet in executive
session.
Taking Up a Nomination
The majority leader, by custom, makes most motions and requests that determine when or
whether a nomination wil be cal ed up for consideration. For example, the majority leader may
move or ask unanimous consent to “immediately proceed to executive session to consider the
following nomination on the Executive Calendar.... ” By precedent, the motion to go into
executive session to take up a specified nomination is not debatable.24 The nomination itself,
however, is debatable.
It is not in order for a Senator to move to consider a nomination that is not on the Calendar, and,
except by unanimous consent, a nomination on the Calendar cannot be taken up until it has been
on the Calendar at least one day (Rule XXXI, clause 1). 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
on Tuesday, even if it is the same legislative day.25
If the Senate simply resolved into executive session, the business immediately pending would be
the first item on the Executive Calendar. A motion to proceed to another matter on the Calendar
would be debatable and subject to a filibuster. For this reason, the Senate does not begin
consideration of executive business this way. Instead, the motion made to cal up a nomination 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 up a nomination, the leader wil first
move that the Senate enter legislative session and then that the Senate enter executive session to
take up the nomination. Both motions (to enter legislative session and to enter executive session)
are not subject to debate and are decided by a simple majority. Typical y they are approved by
voice vote.
Consideration and Disposition
The question before the Senate
when a nomination is taken up is
“wil 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.26 A

Committee chair provides notice to the Secretary of the
majority of 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)
vote on the nomination. This action

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 After the Senate 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
transmits it to the White House.
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
together, or en bloc. Other nominations, general y to higher-level positions, may need more
consideration. When there is debate on a nomination, the chair of the committee usual y 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.
Cloture
Senate Rule XXII provides a means to bring debate on a nomination to a close, if necessary.28
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
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
unanimous consent, the Senate must be in executive session and considering the nomination when
the motion is filed. After the clerk reads the motion, the Senate returns to the business it was
considering before the presentation of the motion.
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
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
proceedings during an executive session to present a cloture motion for a vote. If the Senate is in
legislative session when the time arrives for voting on the cloture motion, it proceeds into
executive session prior to taking action on the cloture motion. According to Rule XXII, the
presiding officer first directs the clerk to cal the roll to ascertain that a quorum is present,
although this requirement is often waived by unanimous consent. Senators then vote either yea or
nay on the question: “Is it the sense of the Senate that the debate shal be brought to a close?” In
April 2017, the Senate reinterpreted Rule XXII in order to al ow cloture to be invoked on al
nominations by a majority of Senators voting (a quorum being present), including Supreme Court
justice nominations.29 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
to cloture attempts through the reinterpretation of the cloture rule in 2013 , see CRS Report RL32878, Cloture Attem pts
on Nom inations: Data and Historical Developm ent Through Novem ber 20, 2013
.
29 Congressional Record, daily edition, 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.
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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
other business by unanimous consent, the time spent on that other business also would not count
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
Nomination
Maximum Consideration
U.S. district courts and al other judicial positions except the U.S.
Supreme Court and the U.S. Circuit Court of Appeals
2 hours
Al executive branch positions except 21 high-level positions
2 hours
21 high-level executive branch positions, including the head of each
executive departmenta
30 hours
The U.S. Supreme Court and the U.S. Circuit Court of Appeals
30 hours
Source: Congressional Record, daily edition, vol. 165 (April 3, 2019), pp. S2220 and S2225.
a. The decision excluded positions “at level 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 and the Attorney Gen eral),
includes the United States Trade Representative, the Director of the Office of Management and Budget, the
Commissioner of Social Security, the Director of National Drug Control Policy, the Chairman of the Board
of Governors of the Federal Reserve System, and the Director of National Intel igence.
Stacked Cloture Motions
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
sequential y on the same day. Each nomination must be considered separately and sequential y
(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,
because it can expedite the process.
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
session; this al ows 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
cloture on that second nomination. This process can be repeated for any number of nominations.
The votes to enter legislative and executive session are typical y voice votes, not roll cal votes.
(See the section “Taking Up a Nomination” for more information about moving in and out of
executive session.)
Two days of Senate session later, al the cloture motions that were filed mature. The first vote the
Senate wil 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
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
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.)
This practice al ows several cloture motions to mature simultaneously over two days. The Senate
could potential y 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
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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 and filing 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
nomination or a bil . 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
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.33
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
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
matters not directly related to the nomination.
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
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 bil . The
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
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
nominations submitted by the President for Senate consideration, however, might stil lead
Senators to seek unanimous consent to quickly approve nominations.
Reduced Post-Cloture Time on Nominations:
Reinterpretation of the Rule
On April 3, 2019, the Senate reinterpreted Senate Rule XXII to reduce, from 30 hours to 2 hours,
the maximum time al owed 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
that “postcloture time under rule XXII for al executive branch nominations other than a position
at level 1 of the Executive Schedule under section 5312 of title 5 of the United States Code is 2
hours.”34 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.
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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
decided by majority vote. In most circumstances, however, appeals are debatable, and therefore
supermajority support (through a cloture process) is typical y necessary to reach a vote to reverse
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,
“appeals from the decision of the presiding officer, shal be decided without debate.”38 Therefore,
when the majority leader 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
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 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. S2225.
36 Since 1965, the Senate has reversed a decision of the presiding officer 36 times. CRS identified reversals through a
search of roll call votes, and it is possible (although unlikely) that other reversals occurred without a roll call vote on
any associated question. For more information, see CRS congressional distribution memorandum, “Senate Decisions
Reversing a Ruling of the Presiding Officer, 1965-March 31, 2017” (available to congressional clients on request from
the authors).
37 For example, a limited number 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 decided by a majority. For more
information, see CRS Report 98-306, Points of Order, Rulings, and Appeals in the Senate.
38 T his was 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 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
majority leader made the appeal in between two questions that were not debatable. Riddick’s Senate Procedure states
that “appeals arising in connection with a non-debatable motion” are not debatable (p. 726). T he particular
parliamentary actions of November 21, 2013, were unique in that it was the first time an appeal was made after a
motion to reconsider a cloture vote was agreed to, but before the cloture vote. T he same procedural steps were followed
on April 6, 2017, in relation to the vote necessary to invoke cloture on Supreme Court nomin ations.
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the advice and consent of the Senate; the appointees temporarily fil the vacancies without Senate
confirmation. In most cases, recess appointees have also been nominated to the positions to which
they were appointed. Furthermore, when a recess appointment is made of an individual
previously nominated to the position, the President usual y submits a new nomination to the
Senate in order to comply with a provision of law affecting the pay of recess appointees (5 U.S.C.
5503(a)). Recess appointments have sometimes been controversial and have occasional y led to
inter-branch conflict.39


Author Information

Elizabeth Rybicki

Specialist on Congress and the Legislative Process



Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
shared staff to congressional committees and Members of Congress. It operates solely at the behest of and
under the direction of Congress. Information in a CRS Report should n ot be relied upon for purposes other
than public understanding of information that has been provided by CRS to Members of Congress in
connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not
subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in
its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or
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.


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
.
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