Appointment confirmation process

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All presidential appointments with Senate confirmation (PAS) must follow the appointment confirmation process before taking office. The number of PAS positions varies by presidency but typically includes all executive department secretaries, undersecretaries, inspectors general and numerous other positions depending on the department. Other positions requiring confirmation can include positions in independent agencies and commissions.[1] In total, there are between 1,200 and 1,400 PAS positions.[2] The full list of positions for each presidency can be found in the corresponding United States Government Policy and Supporting Positions, commonly referred to as the Plum Book.[3]

Confirmation process

Nomination

Before any nominations are made, the White House Office of Presidential Personnel vets a list of candidates, including suggestions provided by members of Congress and special interest groups.[4] A chosen nominee then must pass through a series of investigations by the Federal Bureau of Investigation, Internal Revenue Service, the Office of Government Ethics and an ethics official from the agency to which the position is assigned.[4] The nominee must also fill out the Public Financial Disclosure Report and questionnaires related to his or her background check.

The process begins when the president provides a written nomination to the Senate, where it is read on the floor and assigned a number.[1] This starts the Senate's procedure of advice and consent laid out in the U.S. Constitution for the appointment of high ranking officials by the president.[1]

Committee hearings

The nomination is passed to the Senate committee with jurisdiction over the appointed position. Some PAS positions require a joint hearing of two or more committees.[1] Committee hearings allow a close examination of the nominee looking for partisanship and views on public policy. They can also summon supporters and opponents to testify. Committees are permitted to conduct their own investigations into the nominees, as they are not always provided with the information gathered by the White House's investigation.[1][4] Once committee hearings are closed, most committees have a set amount of time before a vote is taken on whether the nominee is reported to the Senate favorably, unfavorably or without recommendation.[1] They also have the option to not take action on the nominee. If action is taken, the committee notifies the executive clerk. The nomination is then given a number and added to the Executive Calendar of the Senate.[1]

Only one cabinet position since 1945 has been confirmed by the Senate after being reported as unfavorable by a committee. Henry A. Wallace was confirmed by the Senate by a vote of 56-32 to become the secretary of commerce on March 1, 1945.[5]

Committee jurisdictions

CommitteeJurisdiction
Agriculture, Nutrition, and ForestryU.S. Department of Agriculture[6]
Armed ServicesU.S. Department of Defense[6]
Banking, Housing, and Urban AffairsU.S. Department of Housing and Urban Development, Securities and Exchange Commission, Heads of Federal Banking institutions (FDIC, etc...)[6]
BudgetAll issues concerning the Budget (i.e. tax revenues, government expenditures, etc...)[6]
Commerce, Science, and TransportationU.S. Department of Transportation, Federal Trade Commission, U.S. Department of Commerce, U.S. Department of Homeland Security's Under Secretary for Science and Technology, Federal Communications Commission[6]
Energy and Natural ResourcesU.S. Department of Energy, U.S. Department of the Interior, U.S. Environmental Protection Agency[6]
Environment and Public WorksOversight in any issue concerning the environment, public works, or federal buildings[6]
FinanceU.S. Department of Treasury, Social Security Administration, International Trade Commission[6]
Foreign RelationsU.S. Department of State, International Monetary Fund, U.S. Agency for International Development, Peace Corps[6]
Health, Education, Labor, and PensionsDepartment of Health and Human Services, U.S. Department of Education, U.S. Department of Labor, U.S. Food and Drug Administration[6]
Homeland Security and Governmental AffairsU.S. Department of Homeland Security, U.S. General Services Administration, National Archives and Records Administration, Circuit and Appeals Courts of District of Columbia, United States Postal Service, and Inspectors General of all departments[6]
JudiciarySupreme Court, Circuit Courts, District Courts, U.S. Department of Justice[6]
Rules and AdministrationRules of the Senate, general administration of congressional buildings, corrupt practices, Smithsonian Institution, Botanic Gardens[6]
Small Business and EntrepreneurshipSmall Business Administration[6]
Veterans' AffairsU.S. Department of Veterans Affairs, U.S. Department of Labor's Assistant Secretary for the Veterans Employment and Training[6]
Intelligence (Select)Central Intelligence Agency, U.S. Department of Treasury's Assistant Secretary for Intelligence Analysis, U.S. Department of Justice's Attorney General for National Security, Director of National Intelligence[6]

Senate hearings

The nomination must be on the Executive Calendar for more than one day before it can make it to the Senate floor for consideration.[1] Unanimous consent of the time and date for debate must be agreed upon by all senators.[4] If even one senator does not agree, a hold is placed on the nomination.[4] Once the nomination is considered by the Senate, unlimited debate is allowed until two-thirds of the Senate vote to invoke cloture, closing debate.[1] Following a vote of cloture, the Senate conducts a simple majority vote on whether to confirm, reject or take no action on the nomination.[1] If a nomination is left pending at the end of a Congress, it must be sent back to the president who can then re-submit the nomination to the new Congress.[1] The same procedure holds true with any nominee not considered before the Senate enters a recess of more than 30 days, unless there is unanimous consent to bypass the procedure.[4]

Presidential notification

Finally, the Senate's action on the nomination is sent to the president. All results are recorded in the Congressional Record.[1]

Controversy

According to G. Calvin Mackenziea, a professor of government at Colby College who has made a career of studying the federal appointment process, the purpose behind the confirmation process for the last several decades has been "so that the government can follow the determination of the people...that they want the government to go in a specific direction."[7] The president uses the appointment process as his "primary lever" to accomplish this directional goal.[7] If the president is unable to nominate and have confirmed his appointees within a reasonable amount of time, "[i]t just makes it harder for [him or her] to direct the government."[7]

Number of appointments

The speed at which PAS positions are nominated and confirmed has been drawn out as the number of positions has grown. A Congressional Research Service report in May 2013 found that of 346 PAS positions in 15 federal departments, 90 were not filled.[8] Congress attempted to ease the issue in 2011 with the Presidential Appointment Efficiency and Streamlining Act, by expediting 272 positions requiring confirmation and eliminating the confirmation process for another 163.[2]

Mel Watt nomination blocked

On October 31, 2013, the nomination of Rep. Mel Watt, (D-N.C.) to the Federal Housing Finance Agency was blocked by Senate Republicans by means of a filibuster. Cloture was not reached with a vote of 56-42, leaving Watt the first sitting member of Congress to be denied confirmation to an appointed office since 1843.[9] The Obama administration and then-Senate Majority Leader Harry Reid (D-Nev.) were hopeful of a future confirmation.[10] Sen. Lindsey Graham (R-S.C.) insisted he would block every nominee until more information on Benghazi was released, while Sen. Rand Paul (R-Ky.) stated he would block the nomination of Janet Yellen until his Federal Reserve bill was passed.[9]

"Nuclear option"

On November 21, 2013, then-Senate Majority Leader Harry Reid invoked the "nuclear option" in the Senate. The "nuclear option" uses an interpretation of Senate procedure to be able to change chamber rules with a simple majority vote. In this case, the option was used to change the vote requirement for executive nominee confirmations to be considered on the floor.[11] Prior to the rule change, Senators could filibuster until a cloture motion requiring 60 votes was passed in the chamber. The "nuclear option" changed the requirement to a simple majority. The threat of the "nuclear option" occurred in many Congresses, but none had put the option into use.[2]

The "nuclear option" was invoked in response to Senate Republicans blocking the nomination of three D.C. Circuit Court judges. The rule change passed by a vote of 52-48, with Carl Levin, Joe Manchin and Mark Pryor being the only Democrats to vote in opposition. According to the Congressional Research Service, of the 67 times between 1967 and 2012 the filibuster was used on a judicial nominee, 31 were during during the Obama administration.[2]

Outside influences

It is not just political maneuvering within the houses of government that stymies the confirmation process. According to an article in The National Journal, the National Rifle Association exerted pressure to ensure that no nominee for head of the Bureau of Alcohol, Tobacco, Firearms, and Explosives was confirmed for seven years. The NRA believed that a permanent director could mean stricter gun control regulations and stiffer enforcement of existing gun laws. When the law changed in 2006 requiring a confirmation for the head of the ATF, the NRA balked and pushed back. It succeeded in keeping a permanent head out of the ATF until 2013, when B. Todd Jones was confirmed on July 31, 2013.[7][12]

See also

References