9/11 Commission Recommendations: The Senate Confirmation Process for Presidential Nominees

Publication Date: March 2005

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Government

Type:

Abstract:

On July 22, 2004, the National Commission on Terrorist Attacks Upon the United States, known as the 9/11 Commission, issued its final report, detailing the events up to and including the September 11, 2001 terrorist attacks upon the United States. The report contained 41 recommendations on ways to prevent future catastrophic assaults, including a series of proposals designed to improve the presidential appointments process as it relates to the top national security officials at the beginning of a new administration. On October 6, the Senate passed legislation (S. 2845) to implement many of the changes recommended by the 9/11 Commission. The House on October 8 passed its version of the legislation (H.R. 10). The President signed the final version of the bill on December 17, 2004 (P.L. 108-458). Two other measures dealing with the 9/11 Commission's recommendations (S. 2774 and H.R. 5040) were introduced in early September.

The 9/11 Commission recommended that the Senate adopt rules requiring hearings and votes to confirm or reject national security nominees within 30 days of their submission at the start of each new presidential administration. Implicit in the proposal is the assumption that there is a problem with the process for nominating and confirming presidential appointees. Analysis of Senate consideration of the initial nominations by Presidents William J. Clinton and George W. Bush to the posts covered by the recommendation shows that the commission's proposed timetable was not met in 14 of the 49 cases, suggesting this is an issue in a minority of cases.

The Constitution gives the Senate a role in the presidential appointments process, but the parameters of that role have never been clearly defined. The current process is regulated by a mixture of formal rules and informal customs, as well as by political interactions between the President and Senators. Implementing the commission's proposal would presumably require instituting procedures that guarantee committee consideration of each nomination, at least at a hearing, and a final vote on each by the full Senate. Changes of this kind would involve new restrictions on both the power of committee chairs to control the agenda of their committees and the rights of Senators to delay or block nominations through holds and extended debate. These changes would likely also alter the relationship between the legislative and executive branches, weakening the negotiating posture of the Senate in relation to the President, particularly if they were to be extended to additional nominations.

Procedures adequate to implement the commission's recommendation would resemble an expedited procedure, such as those used in resolutions of approval and disapproval of executive actions. Procedural changes of this kind could be achieved by amending the Standing Rules of the Senate, changing the Standing Orders of the Senate, passing a Constitutional Amendment enacting an expedited procedures statute, or reaching a unanimous consent agreement.

This report will be updated as events warrant.