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Under Article II of the Constitution, presidential nominations for executive and judicial appointments take effect when confirmed by the Senate, and international treaties become effective when the Senate approves them by a two-thirds vote. When those Constitutional provisions were ratified, U.S. Senators were not directly elected, but were appointed by state government legislative bodies. Likewise, the founder's society was small, relatively self-sufficient, and agrarian. Today, our country extends across the continent; we are no longer a nation of farmers; and, our economic and security interests are closely tied to those of other countries. The founders never envisioned the great need for, and expansion and increased role of, the federal judiciary. They never envisioned the great need for international cooperation so vital to our country's prosperity and security. The recent debate over the judicial filibuster, covered extensively by a media network, also never envisioned by the founders, was no less than a debate about the role and powers of the three branches of government in a country that is quite different in 2005 from our country in 1787. How should the President and Senate work together under the advice and consent clause of the Constitution? Of what value today are the arguments made by the writers of the Constitution about the role of the Senate and President in judicial appointments and treaty making? Should we focus more on the advice rather than the consent role of the Senate in judicial nominations and treaty making? The discussion starters under this topic explore the contemporary and historical meaning of "advice and consent."
Starter 1: The Framers and Advice and Consent Starter 2: Advice and Consent Viewed from the Bench Starter 3: Advice and Consent in a Democracy
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Senate rules on treatiesThe U.S. Senate's advice and consent authority for treaties is located in the Treaties Clause of Article II, Section 2, which reads:[1]
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]
Senate process for treaty considerationPresentation and ReferralAfter 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 actionAfter 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 actionSenate 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 requirementsThe 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 treatiesThe following treaties have been rejected by the United States Senate:[6] Note: Click on a column heading to sort the data.
Pending treatiesAs 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] Note: Click on a column heading to sort the data.
Senate rules on appointmentsThe 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]
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]
BackgroundThe 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 considerationPresentation and ReferralThe 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 processBackgroundCongressional 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] HearingsAll 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] ReportingA 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 ProceduresAll 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 SessionBusiness 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] ConsiderationWhen 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] ClotureSenate 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 presidentNominations 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 appointmentsBelow 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 appointmentsSenator 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]
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The Constitution gives the power of advice and consent
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