Advice and Consent

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Advice and consent refers to the authority of the United States Senate to approve or reject a resolution of ratification of any treaty to which the United States is a proposed signatory, as well as to evaluate and confirm Presidential nominees to positions in the federal government. The Constitutional provisions for this power are found in Article II, Section 2.

Senate rules on treaties

The U.S. Senate's advice and consent authority for treaties is located in the Treaties Clause of Article II, Section 2, which reads:[1]

"

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; [2]

”

The consideration of treaties constitutes executive business under Senate rules. Rule XXIX governs executive business generally, while Rule XXX of the United States Senate governs Senate consideration of treaties specifically. Rule XXX reads:[3]

"

1. (a) When a treaty shall be laid before the Senate for ratification, it shall be read a first time; and no motion in respect to it shall be in order, except to refer it to a committee, to print it in confidence for the use of the Senate, or to remove the injunction of secrecy.

(b) When a treaty is reported from a committee with or without amendment, it shall, unless the Senate unanimously otherwise directs, lie over one day for consideration; after which it may be read a second time, after which amendments may be proposed. At any stage of such proceedings the Senate may remove the injunction of secrecy from the treaty.

(c) The decisions thus made shall be reduced to the form of a resolution of ratification, with or without amendments, as the case may be, which shall be proposed on a subsequent day, unless, by unanimous consent, the Senate determine otherwise, at which stage no amendment to the treaty shall be received unless by unanimous consent; but the resolution of ratification when pending shall be open to amendment in the form of reservations, declarations, statements, or understandings.

(d) On the final question to advise and consent to the ratification in the form agreed to, the concurrence of twothirds of the Senators present shall be necessary to determine it in the affirmative; but all other motions and questions upon a treaty shall be decided by a majority vote, except a motion to postpone indefinitely, which shall be decided by a vote of twothirds.

2. Treaties transmitted by the President to the Senate for ratification shall be resumed at the second or any subsequent session of the same Congress at the stage in which they were left at the final adjournment of the session at which they were transmitted; but all proceedings on treaties shall terminate with the Congress, and they shall be resumed at the commencement of the next Congress as if no proceedings had previously been had thereon. [2]

”

Senate process for treaty consideration

Presentation and Referral

After the President presents a treaty to the U.S. Senate, the treaty and supporting materials are referred to the U.S. Senate Committee on Foreign Relations. Senate Rule XXIX, para. 3, requires treaties and "all remarks, votes, and proceedings thereon shall also be kept secret, until the Senate shall, by their resolution, take off the injunction of secrecy." At the time of referral to the Committee on Foreign Relations, the Senate historically agrees by unanimous consent to remove the "injunction of secrecy."[4][5]

Committee on Foreign Relations action

After committee review, the Foreign Relations Committee can order the treaty reported back to the Senate in one of four ways:

1. The committee may report the treaty to the full Senate favorably
2. The committee may report the treaty to the full Senate unfavorably
3. The committee may report the treaty to the full Senate without recommendation
4. The committee may take no action on the treaty at all

Should the committee take no action, the treaty remains available to the Senate for future consideration until the treaty is disposed or the Senate agrees to return the treaty to the President. As Rule XXX (para. 2) explains: "all proceedings on treaties shall terminate with the Congress, and they shall be resumed at the commencement of the next Congress as if no proceedings had previously been had thereon." Thus, if the Foreign Relations Committee fails to report a treaty before the end of a Congress, the treaty remains before the committee during the next Congress. In this way, treaties are different from other proposed legislative actions (including bills) in that consideration extends beyond any one Congressional session or term.[5] If, however, the committee has reported a treaty, but the Senate has not completed floor consideration of the treaty when the Congress ends, the treaty is recommitted to the committee, and the committee must report the treaty again prior to consideration by the full Senate.[5]

Full Senate action

Senate consideration of treaties begins when the majority leader makes a unanimous consent request to that effect. If the Senate is in legislative session, then the majority leader makes "a non-debatable motion that the Senate go into executive session for the purpose of considering a specific treaty." If the Senate is in executive session already, then a motion is made to proceed to any but the first item on the Executive Calendar, which is subject to debate.

After moving to executive session and proceeding to the treaty, the Senate considers the text of the treaty itself, a process similar to Senate review of the text of a bill in legislative session. The treaty is subject to amendment at any period of Senate review in executive session; the amendments proposed by the Foreign Relations Committee are given first consideration. Once this process is complete and there is no further debate or amendment, the Senate takes up a resolution of ratification, by which the Senate formally gives its advice and consent to the treaty. When the resolution of ratification is presented, the resolution incorporates any amendments to the treaty approved in executive session.

A one day period is between the time the Senate completes action on the treaty itself and the time consideration of the resolution of ratification begins. This requirement can be waived by unanimous consent. At this time, the treaty is closed, however Senators may amend the resolution of ratification by attaching reservations, declarations, statements, or understandings that can affect the interpretation or implementation of the treaty. As with amendments, the Senate first considers any reservation or other proposition reported by the Foreign Relations Committee.[5]

Voting requirements

The final vote on the resolution of ratification, including any reservations or other propositions attached, requires a vote of two-thirds of the Senators present and voting to approve the resolution. A two-thirds vote is also required to agree to a motion to indefinitely postpone additional consideration of the treaty and the accompanying resolution of ratification, because adopting that motion has the effect of disposing of the treaty permanently.

Any other motion prior to final action, including those motions which propose amendments or attaching reservations, require simple majority votes. Treaties, resolutions of ratification, reservations, and other related propositions are both debatable under normal rules and subject to the Senate’s rules on cloture (Rule XXII). When cloture is invoked on a resolution of ratification, action on all amendments and reservations must be completed before a vote on ratification occurs.

Rejected treaties

The following treaties have been rejected by the United States Senate:[6]

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Pending treaties

As of December 30, 2016, the State Department listed 44 treaties which have been submitted to the U.S. Senate but which have not received the Senate's advice and consent. One of the treaties listed on the State Department's website-Protocol to the North Atlantic Treaty on the Accession of Montenegro-was ratified by the U.S. Senate on March 28, 2017. Therefore, that treaty is not listed here.[7][8]

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Senate rules on appointments

The U.S. Senate's advice and consent authority for Presidential nominations is located in the Appointments Clause of Article II, Section 2, which reads:[1]

"

and he 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, and which shall be established by Law... [2]

”

The consideration of appointments constitutes executive business under Senate rules. Rule XXIX governs executive business generally while Rule XXXI of the United States Senate governs Senate consideration of treaties specifically. Rule XXXI reads:[9]

"

1. When nominations shall be made by the President of the United States to the Senate, they shall, unless otherwise ordered, be referred to appropriate committees; and the final question on every nomination shall be, "Will the Senate advise and consent to this nomination?" which question shall not be put on the same day on which the nomination is received, nor on the day on which it may be reported by a committee, unless by unanimous consent.

2. All business in the Senate shall be transacted in open session, unless the Senate as provided in rule XXI by a majority vote shall determine that a particular nomination, treaty, or other matter shall be considered in closed executive session, in which case all subsequent proceedings with respect to said nomination, treaty, or other matter shall be kept secret: Provided, That the injunction of secrecy as to the whole or any part of proceedings in closed executive session may be removed on motion adopted by a majority vote of the Senate in closed executive session: Provided further, That any Senator may make public his vote in closed executive session.

3. When a nomination is confirmed or rejected, any Senator voting in the majority may move for a reconsideration on the same day on which the vote was taken, or on either of the next two days of actual executive session of the Senate; but if a notification of the confirmation or rejection of a nomination shall have been sent to the President before the expiration of the time within which a motion to reconsider may be made, the motion to reconsider shall be accompanied by a motion to request the President to return such notification to the Senate. Any motion to reconsider the vote on a nomination may be laid on the table without prejudice to the nomination, and shall be a final disposition of such motion.

4. Nominations confirmed or rejected by the Senate shall not be returned by the Secretary to the President until the expiration of the time limited for making a motion to reconsider the same, or while a motion to reconsider is pending unless otherwise ordered by the Senate.

5. When the Senate shall adjourn or take a recess for more than thirty days, all motions to reconsider a vote upon a nomination which has been confirmed or rejected by the Senate, which shall be pending at the time of taking such adjournment or recess, shall fall; and the Secretary shall return all such nominations to the President as confirmed or rejected by the Senate, as the case may be.

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.

7. (a) The Official Reporters shall be furnished with a list of nominations to office after the proceedings of the day on which they are received, and a like list of all confirmations and rejections.

(b) All nominations to office shall be prepared for the printer by the Official Reporter, and printed in the Congressional Record, after the proceedings of the day in which they are received, also nominations recalled, and confirmed.

(c) The Secretary shall furnish to the press, and to the public upon request, the names of nominees confirmed or rejected on the day on which a final vote shall be had, except when otherwise ordered by the Senate. [2]

”

Background

The president nominates all federal judges in the judicial branch as well as officers specified by law in cabinet-level departments, independent agencies, the armed services, the Foreign Service and uniformed civilian services, as well as U.S. attorneys and U.S. marshals. Today, more than 300 positions in 14 cabinet agencies and more than 100 positions in independent and other agencies have been subject to presidential appointment. During each two-year session of Congress, approximately 4,000 civilian and 65,000 military nominations are submitted to the Senate.[10]

Executive branch appointments end with the departure of the president who made them with the exception of those independent agencies whose officials have fixed terms. Confirmed judicial branch nominees however, according to Article III, Section 1, of the U.S. Constitution, hold their positions for life during good behavior. Once confirmed, Article III judges can only be removed via impeachment.[1]

Judicial appointments below the U.S. Supreme Court typically generate little controversy, due in part to the large number of such appointments and to the tradition of senatorial courtesy, which refers to the deference given to the preferences of senators belonging to the president's party who represent a particular nominee's home state. With the exception of appointments to cabinet departments and the Supreme Court, most rejections today take place at the committee level, either through inaction or in failing to report the nomination out of committee to the Senate floor. Before the 1860s, the U.S. Senate considered most nominations without referral. In 1868, Senate rules for the first time provided for the referral of nominations to committees. It wasn't until the middle of the twentieth century, however, that those committees required nominees to appear in person.[10]

Senate process for nomination consideration

Presentation and Referral

The president sends nominations to the U.S. Senate in writing. Once received, nominations are numbered by the executive clerk and read on the floor of the Senate. Except by unanimous consent, the Senate cannot vote on nominations the day they are received. Most nominations are referred to committees. Senate Rule XXXI requires nominations to be referred to appropriate committees unless otherwise ordered.[9] Senate rules concerning committee jurisdictions (Rule XXV) apply to nominations as well as legislation generally. An executive department nomination is referred either to the committee with jurisdiction over legislation concerning that department or to the committee which reported the legislation that created the position. Judicial branch nominations, including federal judges, U.S. attorneys and U.S. marshals, are under the jurisdiction of the Judiciary Committee.[10]

Committee process

Background

Congressional committees sometimes rely on field investigations and reports conducted by the Federal Bureau of Investigation (FBI). Records of FBI investigations are provided only to the White House. At times, a report or a summary may be shared with senators on the relevant committee with presidential authorization. Almost all nominees are asked by the White House Office of Counsel to complete an Executive Personnel Financial Disclosure Report, SF-278, which is reviewed and certified by both the relevant agency and the director of the Office of Government Ethics. These documents are 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. Unlike FBI reports, financial disclosure forms are made public.

Committees can conduct their own information-gathering exercises. Some committees, after reviewing responses to the standard questionnaire, might request that a nominee complete a second questionnaire. Frequently, committees require written responses be submitted prior to scheduling a hearing. The Judiciary Committee sends form letters, sometimes called "blue slips," to senators from a nominee’s home state to determine whether they support the nomination. The Judiciary Committee also has its own investigative staff.[10]

Hearings

All committees that receive nominations hold hearings on some nominations, however the likelihood of hearings varies with the importance of the position and committee workload. The Judiciary Committee, for example, typically does not hold hearings for U.S. attorneys, U.S. marshals, or members of part-time commissions.

One or both senators from the nominee's home state might introduce a nominee at a hearing. Committees sometimes send questionnaires to nominees in advance of a hearing; nominees might be asked to respond in writing to questions after a hearing as well.

Hearings by Senate rule (Rule XXVI) are open to the public unless closed by majority vote for one of the reasons specified in the rule. Witness testimony is often made available online through the committee website, as well as and several commercial services such as Congressional Quarterly. A majority of committees print the hearings but 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 a quorum is usually smaller than a majority of the membership.[10]

Reporting

A committee considering a nomination has four options:

1. The committee may report the nomination to the full Senate favorably
2. The committee may report the nomination to the full Senate unfavorably
3. The committee may report the nomination to the full Senate without recommendation
4. The committee may choose to take no action at all

Very few nominations proceed without being reported out of committee, but chamber rules make it possible for the full Senate to consider a nomination a committee does not report. A motion to discharge a committee from the consideration of a nomination may be done only in executive session. If there is an objection to the motion to discharge, the motion must wait until the next executive session on another day. Though fairly common for committees to be discharged from noncontroversial nominations by unanimous consent, it is rare for senators to attempt to discharge a committee from a nomination by motion or resolution.[10]

Floor Procedures

All nominations reported from committee are listed on the Executive Calendar. Nominations are considered in executive session at a time scheduled by the majority leader.[10]

Executive Session

Business on the Executive Calendar is considered in executive session. Until 1929, executive sessions were also closed to the public; today, these sessions are open unless ordered otherwise by the Senate. The Senate enters executive session either by unanimous consent or a non-debatable motion; only if the Senate adjourned or recessed while in executive session would the next meeting open in executive session. The motion to go to executive session can be offered at any time, is not debatable, and cannot be laid upon the table. All business concerning nominations must be done in executive session.[10]

Consideration

When a nomination is considered, the Senate can approve or reject a nomination. A majority of Senators present and voting, a quorum being present, is required to approve a nomination. By rule, any Senator in the voting majority on the nomination can make a motion to reconsider on the day of the vote or the next two days the Senate meets in executive session. After the Senate acts on a nomination, the Secretary of the Senate attests to a resolution of confirmation or disapproval and transmits the results to the White House.

Most 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. A small proportion of nominations, generally to higher-level positions, may need more consideration. When there is debate on a nomination, the chair of the committee usually makes an opening speech. For positions within a state, senators from the state may wish to speak on the 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. Senators may speak on a nomination for as long as they want.[10]

Cloture

Senate Rule XXII provides a means to end debate on a nomination. At least 16 senators must sign a cloture motion to end debate on a pending nomination. A senator can interrupt another senator who has been recognized in order to present a cloture motion. Cloture may be moved only on a question that is pending before the Senate. Therefore, the Senate must be in executive session and considering the nomination when the motion is filed in the absence of unanimous consent. The Senate does not vote on the cloture motion until the second session day after the day the cloture motion is presented. Under a 2013 decision of the Senate, cloture can be invoked in the Senate on most nominations by a simple majority of senators voting; on a nomination to the Supreme Court, 60 Senators are required to invoke cloture if there is no more than one vacancy. Once cloture is invoked, there is a 30-hour maximum of post-cloture consideration, including debate, quorum calls, parliamentary inquiries, and all other proceedings.[10]

Nominations returned to the president

Nominations that are not confirmed or rejected, by rule, are returned to the president either the end of a session or when the Senate adjourns or recesses for more than 30 business days (Senate Rule XXXI, paragraph 6). If the president wants a nominee considered again, a new nomination must be submitted. The Senate can waive this requirement by unanimous consent. Often the Senate does this to allow nominations to remain active between the first and second sessions of a Congress or during a long recess. The majority leader or a designee can also exempt specific nominees by name from the unanimous consent agreement, allowing these nominees to be returned during the recess or adjournment.[10]

Executive branch appointments

Below is a list of executive branch nominees that were explicitly rejected by the Senate or in which the nomination was withdrawn by the president.[11]

Note: Click on a column heading to sort the data.

Federal court appointments

Senator Charles Mathias of Maryland (R) wrote in an essay for the University of Chicago Law Review, "Among all the responsibilities of a United States Senator, none is more important than the duty to participate in the process of selecting judges and justices to serve on the federal courts."[12]

Nominees to the federal bench generally, and to the Supreme Court specifically, have faced various paths to confirmation. William Howard Taft, the only man in U.S. history to serve as both president and chief justice, was nominated by President Warren G. Harding (R) on June 30, 1921, and was confirmed by the Senate the same day. On the other hand the current chief justice, John G. Roberts, was nominated by both President George H.W. Bush in 1992 and President George W. Bush in 2001 to the federal bench; his nomination did not receive a hearing before the Judiciary Committee on either occasion. It wasn't until 2003 that Roberts was successfully confirmed to the D.C. Circuit. Two years later, he was confirmed as chief justice of the United States.[13]

Chief Justice Roberts, however, was not the first nominee in recent years to experience a delay before eventual confirmation. In April 1995, President Clinton first nominated Judge William A. Fletcher to the Ninth Circuit Court of Appeals. Fletcher's first hearing before the Senate Judiciary Committee was in December 1995 and Fletcher's nomination was reported favorably out of committee in May 1996. The full Senate, however, failed to vote on Fletcher's nomination before the end of the 104th Congress. In January 1997, Fletcher was re-nominated. A second committee hearing was held in May 1998. Fletcher was confirmed in October 1998, more than three years after his initial nomination to the Ninth Circuit.[13] Political scientists Sarah Binder and Forrest Maltzman noted in a 2002 article that the "Senate set a modern record when it took over four years to confirm federal district court judge Richard Paez to a vacancy on the Ninth Circuit Court of Appeals."[14] Paez was nominated by President Clinton in January 1996 and wasn't confirmed until March 2000 on a 59-39 vote.[15]

According to the U.S. Senate website, there have been 164 nominations to the U.S. Supreme Court, including the nomination of Seventh Circuit judge Amy Coney Barrett on September 29, 2020.[16]

  • 127 nominees have been confirmed
  • 120 nominees were confirmed and served as justices
  • 7 confirmed nominees declined to serve
  • 10 nominations had no action taken in the United States Senate
  • 3 nominees had their nominations postponed
  • 12 nominees were rejected by the U.S. Senate
  • 12 nominations were withdrawn

See also

External links

Footnotes

  1. ↑ 1.0 1.1 1.2 National Archives and Records Administration, "Constitution of the United States," accessed February 18, 2016
  2. ↑ 2.0 2.1 2.2 2.3 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
  3. ↑ Senate Committee on Rules & Administration, "Executive Session - Proceedings on Treaties," accessed February 18, 2016
  4. ↑ Government Printing Office, "Treaties and other international agreements: the role of the United States Senate," January 2001
  5. ↑ 5.0 5.1 5.2 5.3 Congressional Research Service, "Senate consideration of treaties," November 10, 2014
  6. ↑ United States Senate, "Treaties," accessed February 18, 2016
  7. ↑ U.S. Department of State, "Treaties pending in the Senate," updated December 30, 2016
  8. ↑ United States Congress, "Treaty document 114-12: Protocol to the North Atlantic Treaty of 1949 on the Accession of Montenegro," accessed April 4, 2017
  9. ↑ 9.0 9.1 Senate Committee on Rules & Administration, "Executive Session - Proceedings on Nominations," accessed February 18, 2016
  10. ↑ 10.00 10.01 10.02 10.03 10.04 10.05 10.06 10.07 10.08 10.09 10.10 United States Senate, "Nominations," accessed February 18, 2016
  11. ↑ United States Senate, "Cabinet nominations rejected or withdrawn," accessed February 18, 2016
  12. ↑ University of Chicago Law Review, "Advice and Consent: The role of the United States Senate in the judicial selection process," January 1987
  13. ↑ 13.0 13.1 Duke Law Journal Online, "'Advice and Consent' in the Appointments Clause: from another historical perspective," May 2015
  14. ↑ American Journal of Political Science "Senatorial delay in confirming federal judges, 1947-1998," January 2002
  15. ↑ Journal of Politics, "To advise and consent: the Senate and lower federal court nominations, 1977-1998," May 2002
  16. ↑ United States Senate, "Supreme Court Nominations, 1789-present," accessed January 26, 2021
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