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U.S. Senate - Nominations

From its earliest years, the Senate has jealously guarded its power to review and approve or reject presidential appointees to executive and judicial branch posts. In its history, the Senate has confirmed 114 Supreme Court nominations and well over 500 Cabinet nominations.

In the 19th century, the Senate referred few nominations to committees. Since the mid-20th century, committee referral has become routine and most nominees testify at Senate hearings.

The United States Constitution provides that the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for..." (Article II, section 2). This provision, like many others in the Constitution, was born of compromise, and, over the more than two centuries since its adoption, has inspired widely varying interpretations.

The president nominates all federal judges in the judicial branch and specified officers in cabinet-level departments, independent agencies, the military services, the Foreign Service and uniformed civilian services, as well as U.S. attorneys and U.S. marshals. In recent years, more than three hundred positions in fourteen cabinet agencies and more than one hundred positions in independent and other agencies have been subject to presidential appointment. Approximately 4,000 civilian and 65,000 military nominations are submitted to the Senate during each two-year session of Congress. The vast majority are routinely confirmed, while a very small but sometimes highly visible number fail to receive action.

The importance of the position, the qualifications of the nominee, and the prevailing political climate influence the character of the Senate's response to each nomination. Views of the Senate's "proper role" range from a narrow construction that the Senate is obligated to confirm unless the nominee is manifestly lacking in character and competence, to a broad interpretation that accords the Senate power to reject for any reason a majority of its members deems appropriate. Just as the president is not required to explain why he selected a particular nominee, neither is the Senate obligated to give reasons for rejecting a nominee.

Executive branch appointments customarily end with the departure of the president who made them, except for those independent agencies whose officials have fixed terms. Judicial appointments, however, are for life and can be terminated only through the time-consuming congressional impeachment process. Historically, Supreme Court nominations, in great disproportion to their number, have attracted the close attention of senators, the media, and scholars. While the Senate has explicitly rejected fewer than 2 percent of all cabinet nominees since 1789, nearly a quarter of all Supreme Court nominations have failed to be confirmed, their nominations rejected, withdrawn or declined.

Throughout the nation's history, appointments to judicial posts below the Supreme Court have generated little controversy. This has been due in part to the large number of such appointments and to the tradition of "senatorial courtesy," which defers to the preferences of senators belonging to the president's party who represent a particular nominee's home state. Lower court judges have been considered less potentially mischievous because they are more closely constrained by precedent than are Supreme Court justices, and they do not have the final judicial say on significant issues.

With the exception of appointments to cabinet departments and the Supreme Court, most rejections in modern times have taken place at the committee level, either through inaction, or by a vote not to send the nomination to the Senate floor. Before the 1860s, the Senate considered most nominations without referring them to the committee holding jurisdiction over the vacant post. The Senate rules of 1868, for the first time, provided for the referral of nominations to "appropriate committees." Not until the middle of the twentieth century, however, did those committees routinely require nominees for major positions to appear in person.

Presidents have occasionally circumvented the confirmation process by making so-called "recess appointments" when the Senate is in adjournment between sessions, or in recess within a session. As provided by the Constitution, such appointments expire at the end of the following congressional session, but may expire earlier in certain specified circumstances.

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