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The U.S. Constitution, in Article II, Section 2, mandates that the Senate engage in advice and consent with presidential appointments to the executive and judicial branches. This constitutional provision is notably brief and vague pertaining to this Senate responsibility, and this has led to a variety of conflicts between presidents and senators over what constitutes the proper manner of fulfilling this congressional task. The Constitution states that it is the president who formally chooses and nominates appointees to fill vacancies to important posts in the federal government, and it is the Senate’s duty to confirm or reject such nominations after reviewing them. Advice and consent is a prime example of the constitutional framework of the separation of powers among the three branches of the federal government being layered over with checks and balances. These checks and balances result ultimately in a sharing of power at times between the executive and legislative branches—in this instance, the president has the sole power of appointment, but the Senate can check that authority with its power to reject those nominations.
Working from the original phrasing in the Constitution and subsequent enactments by the Congress, the Senate must consent to presidential appointments to the following types of offices: Supreme Court justices, all other lower federal judges, Cabinet secretaries, subcabinet executive branch posts, ambassadors, and other upper-tier governmental positions. In the twenty-first century, the Senate annually receives roughly twenty thousand such nominations. The great majority of these votes are on military promotions or civilian appointments to executive branch agencies (e.g., the Public Health Service) and these are routinely approved with no challenge or controversy and minimal Senate attention. There are about one to two thousand nominations to higher-level posts that do have more significant policy implications associated with them (i.e., the position has some manner of policy-making authority), and the probability of senatorial opposition increases. That being said, the Senate still usually approves them with little difficulty.
To be confirmed and to legally take office, a nominee must receive a vote of approval by a majority of senators present and voting. Almost all nominees are approved in the Senate by unanimous consent, typically a voice vote, with little to no debate. A recorded roll call vote where it is clear how a particular senator voted on a nomination constitutes only a small percentage of all of these confirmation votes.
Some types of offices usually garner greater levels of Senate opposition than others wherein senators wish to have their preferences accounted for by the president. Judicial appointments, particularly to the Supreme Court, with their lifetime tenure and increasingly prominent policy implications of federal court decisions, have been shown to ratchet up senators’ willingness to reject a nominee. The inverse is generally true for executive branch vacancies where appointees only serve for the time that their appointing president is in power—more deference is shown by senators to those selections of the president. Many senators consider it appropriate for the president to be given the greatest leeway in picking executive branch appointments, especially his Cabinet secretaries.
The onus is on opponents of a nomination to advance why the nominee should be rejected—opponents must establish the grounds for opposition to a nomination. There historically have been four primary grounds of opposition. The first three concern the nominee’s personal character—competence and qualifications for the position to which the nominee has been appointed, potential conflicts of interest, and ethics. The fourth focuses on the nominee’s policy views and ideology. The legitimacy of policy-based and ideological opposition to a nominee remains a source of continuing controversy. The first three are generally considered to be valid or acceptable reasons, the fourth less so. Resistance to a nomination commonly emanates from senators who are members of the opposition party and who are ideologically distant from the appointing president.
From the 1960s onward, the greater frequency of divided government and expanded organized interest group mobilization with these appointments has worked to reinforce and increase the institutional tensions between the Senate and the White House with this advice and consent duty. When a controversy erupts over a nomination, overt hostility between these two branches has become the current norm. A strategy now more readily seen in the contemporary era compared to the past is senators’ greater willingness to obstruct presidential appointments by keeping nominees from ever receiving a confirmation floor vote. Commonly seen tactics as part of this general strategy include the relevant Senate committee not holding hearings nor considering a nomination at all (a necessary step before a floor vote can occur) and the use of holds and filibusters on specific nominees by individual senators that directly prevent a floor vote.
- Abraham, Henry J. Justices, Presidents, and Senators: A History of U.S. Supreme Court Appointments from Washington to Clinton, rev. ed. Lanham, Md.: Rowman and Littlefield, 1999.
- Epstein, Lee, and Jeffrey A. Segal. Advice and Consent: The Politics of Judicial Appointments. New York: Oxford University Press, 2005.
- Fisher, Louis. Constitutional Conflicts between Congress and the President, 4th ed., rev. Lawrence: University of Kansas Press, 1997.
- Harris, Joseph P. The Advice and Consent of the Senate: A Study of the Confirmation of Appointments by the United States Senate. Berkeley: University of California Press, 1953.
- Mackenzie, G. Calvin. The Politics of Presidential Appointments. New York: Free Press, 1981.
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