Presidential Appointments to Full-time Positions in Executive Departments During the 108th Congress, 2003-2004
Released: 2007-01-08T00:00:00

Introduction

This report provides an overview of the process for filling positions to which the President makes appointments with the advice and consent of the Senate (PAS positions). It also specifies, for the 108 th Congress, all nominations to full-time positions in the 15 executive departments, including the then-new Department of Homeland Security, which came into existence on January 24, 2003. A profile of each department identifies full-time positions requiring Senate confirmation and, if applicable, their pay levels. The profiles also track nominations to these positions during the 108 th Congress, providing information on Senate activity (i.e., confirmations, rejections (of which there were none), returns to the President, and elapsed time between nomination and confirmation) as well as further related presidential activity (i.e., withdrawals and recess appointments).

The Appointment Process for Advice and Consent Positions

The President and the Senate share the power to appoint the principal officers of the United States. The Constitution (Article II, Section 2, clause 2) empowers the President to nominate and, by and with the advice and consent of the Senate, to appoint the principal officers of the United States. Three distinct stages mark the appointment process: selection, clearance, and nomination by the President; consideration by the Senate; and appointment by the President.

Selection, Clearance, and Nomination

In the first stage, the White House selects and clears a nominee before sending the formal nomination to the Senate. There are a number of steps in this stage of the process for most Senate-confirmed positions. First, with the assistance of, and preliminary vetting by, the White House Office of Presidential Personnel, the President selects a candidate for the position. Interested parties, including Members of Congress, may have input during this process. It could be argued that Senators are constitutionally entitled, by virtue of the advice and consent clause noted above, to provide advice to the President regarding his selection; the extent of this entitlement is a matter of some debate. As a practical matter, in general, a nomination is likely to fare better if the Administration has first consulted Senators on the committee of jurisdiction.

During the clearance process, the candidate prepares and submits several forms: the "Public Financial Disclosure Report" (Standard Form (SF) 278), the "Questionnaire for National Security Positions" (SF 86), and the White House "Personal Data Statement Questionnaire." The Office of the Counsel to the President oversees the clearance process, which often includes background investigations conducted by the Federal Bureau of Investigation (FBI), Internal Revenue Service (IRS), Office of Government Ethics (OGE), and an ethics official for the agency to which the candidate is to be appointed. If conflicts are found during the background check, OGE and the agency ethics officer may work with the candidate to mitigate the conflicts. Once the Office of the Counsel to the President has cleared the candidate, the nomination is ready to be submitted to the Senate.

The selection and clearance stage is often the longest part of the appointment process. There can be lengthy delays, particularly if many candidates are being processed, as they are at the beginning of an Administration, or if conflicts need to be resolved. Candidates for higher-level positions are often accorded priority in this process. In an effort to reduce the elapsed time between a new President's inauguration and the appointment of his or her national security team, amendments to the Presidential Transitions Act of 1963, enacted at the end of 2004, encourage a President-elect to submit, for security clearance, potential nominees to high-level national security positions as soon as possible after the election. A separate provision of law, enacted as part of the Federal Vacancies Reform Act of 1998, lengthens, during presidential transitions, the potential length of a temporary appointment by at least 90 days. Although this provision might give some additional flexibility to an incoming President, it might also lengthen the appointment process for some positions by, in effect, extending the deadline by which a permanent appointment must be completed.

For positions located within a state (e.g., U.S. attorney, U.S. marshal, and U.S. district judge), the President, by custom, normally nominates an individual recommended by the Senator or Senators (if they are from the same party as the President) from that state. If neither Senator is from the President's party, he usually defers to the recommendations of party leaders from the state. Occasionally, the President solicits recommendations from Senators of the opposition party because of their positions in the Senate. Before making a nomination to a federal position at the state or national level, the President must consider how it will fare in the confirmation process.

A nominee has no legal authority to assume the duties and responsibilities of the position; the authority comes with Senate confirmation and presidential appointment. A nominee who is hired by the agency as a consultant while awaiting confirmation may serve only in an advisory capacity. If circumstances permit and conditions are met, the President may give the nominee a recess appointment to the position (see below). Recess appointments may have political consequences, however, particularly if Senators perceive that an appointment is an effort to circumvent their constitutional role. Some Senate-confirmed positions, such as many of those in the executive departments, may also be temporarily filled under the Vacancies Act.

Senate Consideration

In the confirmation or second stage, the Senate alone determines whether or not to confirm a nomination. The way the Senate acts on a nomination depends largely on the importance of the position involved, existing political circumstances, and policy implications. Generally, the Senate shows particular interest in the nominee's views and how they are likely to affect public policy. Two other factors may also affect the scrutiny with which a nominee's personal and professional qualities are examined: whether or not the President's party controls the Senate and the degree to which the President becomes involved in supporting the nomination.

The Senate confirmation process is centered at the committee level. Committee nomination activity generally includes investigation, hearing, and reporting stages. As part of investigatory work, committees may draw on information provided by the White House as well as information collected by the committees. Hearings provide a public forum to discuss a nomination and any issues related to the program or agency for which the nominee would be responsible. Even if confirmation is thought to be a virtual certainty, hearings may provide Senators and the nominee with an opportunity to go on the record with particular views or commitments. Senators may use hearings to explore a nominee's qualifications, articulate a policy perspective, or raise related oversight issues. Some committees hold hearings on nearly all nominations; others hold hearings for only some.

The committee may discontinue acting on a nomination at any point—upon referral, after investigation, or after a hearing. If the committee votes to report the nomination back to the full Senate, it has three options: it may report the nomination to the Senate favorably, unfavorably, or without recommendation. If the committee elects not to report a nomination, the Senate may, under certain circumstances, discharge the committee from further consideration of the nomination in order to bring it to the floor.

The Senate historically has confirmed most, but not all, executive nominations. Rarely, however, does a rejection occur on the Senate floor. Nearly all rejections occur in committee, either by committee vote or by committee inaction. Rejections in committee occur for a variety of reasons, including opposition to the nomination, inadequate amount of time for consideration of the nomination, or factors that may have nothing to do with the merits of the nomination. If a nomination is not acted upon by the Senate by the end of a Congress, it is returned to the President. Pending nominations also may be returned automatically to the President at the beginning of a recess of 30 days or longer, but the Senate rule providing for this return is often waived.

Appointment

In the final stage, the confirmed nominee is given a commission signed by the President, with the seal of the United States affixed thereto, and is sworn into office. The President may sign the commission at any time after confirmation. Once the appointee is given the commission and sworn in, he or she has full authority to carry out the responsibilities of the office.

Recess Appointments

The Constitution also empowers the President to make limited-term appointments without Senate confirmation when the Senate is in recess. Such recess appointments expire at the end of the next session of Congress. Appendix C provides a table showing the dates of the Senate recesses for the 108 th Congress and the number of recess appointments during each recess.

Presidents have occasionally used the recess appointment power to circumvent the confirmation process. In response, Congress has placed restrictions on the President's authority to make a recess appointment. Under 5 U.S.C. § 5503(a), if the position falls vacant while the Senate is in session and the President fills it by recess appointment, the appointee may not be paid from the Treasury until he or she is confirmed by the Senate. The salary prohibition does not apply: (1) if the vacancy arose within 30 days before the end of the session; (2) if a nomination for the office (other than the nomination of someone given a recess appointment during the preceding recess) was pending when the Senate recessed; or (3) if a nomination was rejected within 30 days before the end of the session and another individual was given the recess appointment. A recess appointment falling under any one of these three exceptions must be followed by a nomination to the position not later than 40 days after the beginning of the next session of the Senate. For this reason, when a recess appointment is made, the President generally submits a new nomination for the nominee even when an old nomination is pending. Section 5503 of Title 5 has been interpreted by the Department of Justice to preclude payment of an appointee who is given successive recess appointments to the same position.

Although recess appointees whose nominations to a full term are subsequently rejected by the Senate may continue to serve until the end of their recess appointment, a recurring provision of the funding bill for the Department of the Treasury and other agencies may prevent them from being paid after their rejection.

Temporary Appointments

Congress has provided limited statutory authority for the temporary filling of vacant positions requiring Senate confirmation. It is expected that, in general, officials holding PAS positions who have been designated as "acting" are holding their offices under this authority or other statutory authority specific to their agencies. Under the Federal Vacancies Reform Act of 1998, when an executive agency position requiring confirmation becomes vacant, it may be filled temporarily in one of three ways: (1) the first assistant to such a position may automatically assume the functions and duties of the office; (2) the President may direct an officer in any agency who is occupying a position requiring Senate confirmation to perform those tasks; or (3) the President may select any officer or employee of the subject agency who is occupying a position for which the rate of pay is equal to or greater than the minimum rate of pay at the GS-15 level, and who has been with the agency for at least 90 of the preceding 365 days. The temporary appointment is for 210 days, but the time restriction is suspended if a first or second nomination for the position is pending. In addition, during a presidential transition, the 210-day restriction period does not begin to run until either 90 days after the President assumes office, or 90 days after the vacancy occurs, if it is within the 90-day inauguration period. The act does not apply to positions on multi-headed regulatory boards and commissions and to certain other specific positions that may be filled temporarily under other statutory provisions.

Appointments During the 108th Congress

During the 108 th Congress, the President submitted to the Senate 166 nominations to executive department full-time positions. These include the initial nominations to the newly created Department of Homeland Security, which came into existence at the beginning of the 108 th Congress, on January 24, 2003. Of these 166 nominations, 120 were confirmed; eight were withdrawn; one was returned to the President at the end of the first session; and 37 were returned to him at the end of the second session of the 108 th Congress.

President Bush made a total of 18 recess appointments to the departments during this time. Of those 18, three were made during the recess between the first and second sessions of the 108 th Congress ( intersession recess appointments). The remaining 15 were made during recesses within the first or second session of the 108 th Congress ( intrasession recess appointments). Table 1 summarizes this appointment activity.

Length of Time to Confirm a Nomination

The length of time a given nomination may be pending in the Senate varies widely. Some nominations are confirmed within a few days; others may not be confirmed for several months; and some are never confirmed. This report provides, for each executive department nomination that was confirmed in the 108 th Congress, the number of days between nomination and confirmation ("days to confirm"). These counts exclude days during August recesses and between sessions of Congress. This cutoff point is suggested by the Senate rules, which provide that "if the Senate shall adjourn or take recess for more than thirty days, all nominations pending and not finally acted upon" shall be returned to the President, although this rule is often waived. The 31 days during the August 2003 recess, the 41 days between the first and second sessions of the 108 th Congress, and the 46 days during the August 2004 recess were subtracted from the "days to confirm" for those nominations that spanned one or more of these recesses. The sole exception was a 35-day recess during October and November 2004. In order to maintain consistency with similar reports for previous Congresses, no days were subtracted for this recess.

Organization of This Report

Executive Department Profiles

Each of the 15 executive department profiles provided in this report is organized into two parts: a table identifying full-time PAS positions and associated pay levels as of the end of the 108 th Congress, and a table listing nominations and appointments to these positions during the 108 th Congress. Data for these tables were collected from several authoritative sources.

The appointment action table provides, in chronological order, information concerning each nomination and recess appointment. It shows the name of the nominee, position involved, date of nomination or appointment, date of confirmation, and number of days between receipt of a nomination and confirmation. Actions other than confirmation (i.e., nominations returned to or withdrawn by the President) are also noted. Some nominees were nominated more than once for the same position, either because the first nomination was returned to the President or because of a recess appointment. When a nominee is awaiting Senate action and he or she is given a recess appointment, a second, follow-up, nomination is usually submitted to comply with the requirements of 5 U.S.C. § 5503(b).

Each appointment action table provides the average "days to confirm" in two ways: mean and median. The mean is determined by calculating, for each confirmed nomination, the number of days between the nomination and confirmation dates, determining the cumulative total of these days, and dividing the result by the number of nominations confirmed. The median is the middle number when the "days to confirm" data for all the confirmed nominations are arranged in numerical order.

Additional Appointment Information

Appendix A presents a table of all nominations and recess appointments to positions in executive departments, alphabetically organized and following a similar format to that of the department appointment action tables. It identifies the agency involved and the dates of nomination and confirmation. The table also indicates if a nomination was confirmed, withdrawn, or returned. The mean and median numbers of days taken to confirm a nomination are also provided, calculated as described above.

Appendix B provides a table with summary information on appointments and nominations, by department. For each of the 15 executive departments discussed in this report, the table provides the number of positions, nominations, individual nominees, confirmations, nominations returned, nominations withdrawn, and recess appointments. The table also provides the mean and median numbers of days to confirm a nomination.

Appendix C provides a table showing the dates of the Senate recesses for the 108 th Congress and the number of recess appointments during each recess.

A list of department abbreviations can be found in Appendix D .

Department of Agriculture (USDA)

Department of Commerce (DOC)

Department of Defense (DOD)

Department of Education (ED)

Department of Energy (DOE)

Department of Health and Human Services (HHS)

Department of Homeland Security (DHS)

Department of Housing and Urban Development (HUD)

Department of the Interior (DOI)

Department of Justice (DOJ)

Department of Labor (DOL)

Department of State (DOS)

Department of Transportation (DOT)

Department of the Treasury (TREA)

Department of Veterans Affairs (DVA)

Appendix A. Nominations and Recess Appointments, 108 th Congress

Appendix B. Appointment Action, 108 th Congress

Appendix C. Senate Recesses a for the 108 th Congress

Appendix D. Abbreviations of Departments