Evolution of the Senate's Role in the Nomination and Confirmation Process: A Brief History

Publication Date: March 2005

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Government

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Abstract:

Article II, Section 2 of the Constitution states that the President "shall nominate, and by and with the Advise and Consent of the Senate, shall appoint Ambassadors, other Public Ministers and Counsels, 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...."

Exactly what the phrase "advise and consent" means in terms of distribution of power between the legislative and executive branches has been disputed almost since the beginning of the Republic. While some drafters of the Constitution believed the Senate's role would be minimal, others said the Senate would play a large role.

The role the Senate has played in the nomination process has depended, in part, upon the relationship between the President and the Senate. Nonetheless, while there have been many controversies over nominations, the vast majority of nominees eventually make it through the process and are confirmed.

Over time, the Senate has developed a series of procedures to deal with the concerns of its Members on nominations. First is the custom of senatorial courtesy, whereby Senators from the same party as the President might influence a nomination or kill it by objecting to it. This tradition has not always been absolute, but it has allowed Senators to play a fairly large role, particularly in the selection of nominees within a Senator's home state, such as for district court judgeships.

For judicial nominations, the Judiciary Committee has developed a tradition of "blue slips," a document used to get a home-state Senator's opinion on a judicial nomination. The chair of the committee determines how much weight to give a Senator's objection to a judicial nominee.

Other procedures that Senators have used to express their position on a nomination include holds, an informal procedure that can allow a single Senator to block action on a nomination (or legislation), and filibusters, extended debate that can block an up-or-down vote on a nomination (or legislation). Both procedures have been used to delay or block action on nominations.

This report will be updated as events warrant.