confirmation of nominations

According to the Constitution (Article 2, Section 2), the Senate alone has the authority to advise and consent on nominations made by the President. These nominations include those of members of the cabinet, executive agency heads, diplomats, judges, federal attorneys, and military officers. This power is critically important to the federal system of checks and balances. Along with the development of “senatorial courtesy”—by which senators usually will not vote to confirm nominees opposed by their home-state senators—the confirmation power has given the Senate great influence over certain types of appointments. For instance, Presidents generally nominate federal judges and U.S. marshals from lists provided by senators and key members of the House of Representatives.

Both the executive branch and the Senate committees handling the nominations carefully screen the nominees. Often, the Federal Bureau of Investigation (FBI) conducts an investigation of the nominee's life. The staff of the Senate committee to which the nomination is referred also compiles information, and witnesses testify at committee hearings about the nominee's qualifications. For instance, the Senate agriculture committee holds nomination hearings for the secretary of agriculture, and the Foreign Relations Committee handles the nomination of the secretary of state.

Cabinet versus Court nominations

Out of the many hundreds of cabinet nominations made since 1789, the Senate has rejected only nine (another six were withdrawn because they would probably not have been confirmed). The low number of rejections suggests that the Senate believes that Presidents should have the right to name their own cabinets, as long as those nominees appear fully fit for office. By contrast, from 1789 to 2000 the Senate either rejected by formal vote, or informally turned away, 27 Presidential nominees to the Supreme Court. The Senate officially rejected 11 nominees by majority vote. Seventeen nominations were either withdrawn by the President before a formal vote, or no action was taken by the Senate on the nomination, thereby defeating it. This considerably larger percentage of rejections suggests that the Senate seeks a larger role in the choice of members of the independent judicial branch.

Rejection of Supreme Court nominees

The Senate first formally voted to reject a Supreme Court nominee in 1811, when the senators refused to confirm President James Madison's nomination of Alexander Wolcott, by a vote of 24 to 9. The main reason for rejection was doubt about his competence.

Four nominees have been voted down by the Senate during the period from 1900 to 1993: John Parker, nominated by President Herbert Hoover in 1930 (by a vote of 39 to 41); Clement Haynsworth, nominated by President Richard Nixon in 1969 (by a vote of 45 to 55); G. Harrold Carswell in 1970, nominated by Nixon (by a vote of 45 to 51); and Robert H. Bork, nominated by President Ronald Reagan in 1987 (by a vote of 42 to 58).

Both John Parker and Robert Bork were defeated because important interest groups opposed them. Parker was defeated because of pressure exerted by labor unions, whose leaders believed him to be opposed to more federal regulation of businesses to improve wages and working conditions. Bork's defeat was influenced by civil rights and feminist groups, who disliked his conservative ideas about a woman's right to an abortion and government programs to advance opportunities of minorities and women. Furthermore, some senators opposed Bork because they disagreed with his conservative legal philosophy, which emphasized judicial restraint and a strict construction of the Constitution. For example, Bork could find no justification in the Constitution for the Supreme Court's decision in Roe v. Wade (1973), which affirmed a woman's right to an abortion during a certain period of pregnancy. He believed that the issue of abortion rights should be decided by state legislatures, not by the federal judiciary. Despite disagreements with his legal and political ideas, most of Bork's opponents respected the high quality of his intellect, legal work, and personal integrity.

By contrast, President Nixon's nomination of Clement Haynsworth in 1969 failed largely because most senators had doubts about his competence and character. The Senate also rejected Nixon's nomination of G. Harrold Carswell the following year because of doubts about Carswell's ability to do the job.

Some critics have argued that in dealing with judicial nominations, the Senate should confine itself to examining each nominee's personal integrity and legal qualifications. But the Senate has also rejected nominees because of political opposition to the President making the nomination; disagreement with the nominee's views on controversial public issues; and strong opposition to the nominee by large or influential special interest groups.

During the late twentieth century, Presidents more often than not faced opposition party majorities in the Senate. Political conflicts added to the length of time that it took for the Senate to confirm nominations, particularly for the judiciary. Liberal Democrats objected to the appointment of many conservatives during the Nixon, Ford, Reagan, and Bush administrations, while the Republican majority during much of Bill Clinton's Presidency similarly delayed or blocked altogether the confirmation of liberal judges. A favored tactic is putting “holds” on nominations. In placing “holds,” individual senators notify the leaders that they have a problem with a particular nominee and would object if the Senate attempted to confirm the nomination by unanimous consent. Usually the Senate leadership will not call up for a vote any nominations with “holds.” White House congressional liaisons then work with the individual senators in an attempt to satisfy their concerns. Trading often goes on, with the president agreeing to make a nomination that the senators want in return for their allowing other nominations to come to a vote.

See also Advice and consent; Appointment power; Checks and balances; Senate Judiciary Committee; Senatorial courtesy

Sources

• Robert C. Byrd, “Nominations,” in The Senate, 1789–1989: Addresses on the History of the United States Senate, vol. 2 (Washington, D.C.: Government Printing Office, 1991)