Presidential Appointments to Full-Time Positions in Executive Departments During the 110th Congress, 2007-2008
Released: 2010-11-19T00:00:00

This report explains the process for filling positions to which the President makes appointments with the advice and consent of the Senate (PAS positions). It also identifies, for the 110 th Congress, all nominations to executive-level full-time positions in the 15 departments. Profiles of the departments provide information regarding their full-time PAS positions and related appointment activity during the 110 th Congress.

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 prospective appointee before sending a 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. Members of Congress and interest groups sometimes recommend candidates for specific PAS positions. They may offer their suggestions by letter, for example, or by contact with a White House liaison. In general, the White House is under no obligation to follow such recommendations. In the case of the Senate, however, it has been 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 instances where Senators perceive insufficient pre-nomination consultation has occurred, they have sometimes exercised their procedural prerogatives to delay or even effectively block consideration of a nomination.

During the clearance process, the candidate prepares and submits several forms, including 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 the collection and review of background information 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 of interest 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 has often been the longest part of the appointment process. There have been, at times, lengthy delays, particularly when many candidates have been processed simultaneously, such as at the beginning of an Administration, or where conflicts needed to be resolved. Candidates for higher-level positions have often been accorded priority in this process. At the end of 2004, in an effort to reduce the elapsed time between a new President's inauguration and the appointment of his or her national security team, Congress enacted amendments to the Presidential Transition Act of 1963. These amendments 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 duration of a temporary appointment by 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 a position located within a state (e.g., U.S. attorney, U.S. marshal, and U.S. district judge), the President, by custom, normally has nominated an individual recommended by one or both Senators (if they are from the same party as the President) from that state. In instances where neither Senator is from the President's party, he usually has deferred to the recommendations of party leaders from the state. Occasionally, the President has solicited recommendations from Senators of the opposition party because of their positions in the Senate.

If circumstances permit and conditions are met, the President could give the nominee a recess appointment to the position (see section entitled " Recess Appointments " below). Recess appointments have sometimes had political consequences, however, particularly where Senators perceived that such an appointment was 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.

A nominee has no legal authority to assume the duties and responsibilities of the position; a nominee who is hired by the agency as a consultant while awaiting confirmation may serve only in an advisory capacity. Authority to act comes once there is Senate confirmation and presidential appointment, or if another method of appointment, such as a recess appointment or a temporary appointment, is utilized. (For further information on these methods, see sections entitled " Recess Appointments " and " Temporary Appointments " below.)

Senate Consideration

In the second stage, the Senate alone determines whether or not to confirm a nomination. The way the Senate has acted on a nomination has depended largely on the importance of the position involved, existing political circumstances, and policy implications. Generally, the Senate has shown particular interest in the nominee's views and how they are likely to affect public policy. Two other factors have sometimes affected the examination of a nominee's personal and professional qualities: whether the President's party controlled the Senate, and the degree to which the President became involved in supporting the nomination.

Much of the Senate confirmation process occurs at the committee level. Administratively, nominations are received by the Senate executive clerk, who arranges for the referral of the nominations to committee, according to the Senate rules and precedents. Committee nomination activity has generally included investigation, hearing, and reporting stages. As part of investigatory work, committees have drawn on information provided by the White House, as well as information they themselves have collected. Some committees have held hearings on nearly all nominations; others have held hearings for only some. 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 where confirmation has been thought to be a virtual certainty, hearings have provided Senators and the nominee with opportunities to go on the record with particular views or commitments. Senators have used hearings to explore nominees' qualifications, articulate policy perspectives, or raise related oversight issues.

A committee may decline to act on a nomination at any point—upon referral, after investigation, or after a hearing. If the committee votes to report a nomination to the full Senate, it has three options: it may report the nomination favorably, unfavorably, or without recommendation. A failure to obtain a majority on the motion to report means the nomination will not be reported to the Senate. If the committee declines 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, has a vote to confirm a nomination failed on the Senate floor. Unsuccessful nominations usually do not make it past the committee stage. Failure of a nomination to make it out of committee has occurred for a variety of reasons, including opposition to the nomination, inadequate amount of time for consideration of the nomination, or factors that may not be directly related to the merits of the nomination.

Senate rules provide that "[n]ominations neither confirmed nor rejected during the session at which they are made shall not be acted upon at any succeeding session without being again made to the Senate by the President." In practice, such pending nominations have been returned to the President at the end of the session or Congress. Pending nominations also may be returned automatically to the President at the beginning of a recess of more than 30 days, but the Senate rule providing for this return is often waived.

Appointment

In the final stage, the confirmed nominee is given a commission bearing the Great Seal of the United States signed by the President and is sworn into office. The President may sign the commission at any time after confirmation, at which point the appointment becomes official. 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 the Senate. Appendix C provides a table showing the dates of the Senate recesses for the 110 th Congress and showing that during this Congress, President Bush made no recess appointments to executive department positions.

Presidents have occasionally used the recess appointment power to circumvent the confirmation process. In response, Congress has enacted provisions that restrict the pay of recess appointees under certain circumstances. Because most potential appointees to full-time positions cannot serve without a salary, the President has an incentive to use his recess appointment authority in ways that allow them to be paid. Under the provisions, 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. However, the salary prohibition does not apply

(1) if the vacancy arose within 30 days before the end of the session of the Senate;

(2) if, at the end of the session, a nomination for the office, other than the nomination of an individual appointed during the preceding recess of the Senate, was pending before the Senate for its advice and consent; or

(3) if a nomination for the office was rejected by the Senate within 30 days before the end of the session and an individual other than the one whose nomination was rejected thereafter receives a 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. These provisions have 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 provision of the FY2008 Financial Services and General Government Appropriations Act may prevent them from being paid after their rejection. The provision reads, "Hereafter, no part of any appropriation contained in this or any other Act shall be paid to any person for the filling of any position for which he or she has been nominated after the Senate has voted not to approve the nomination of said person." Prior to this provision, similar wording was included in annual funding measures for most or all of the previous 50 years.

Another recent congressional response to the President's use of recess appointments was the decision, during the latter part of the first session of the 110 th Congress, to restructure the Senate's longer recesses into a series of shorter recesses divided by pro forma sessions. Based upon the notion that the President can be restricted from making recess appointments during a recess that is no more than three days, the Senate sought to prevent recess appointments by holding pro forma sessions approximately every three days. Beginning in November of 2007, the Senate agreed to regularly scheduled pro forma sessions during periods that would have otherwise been recesses of duration of a week or longer. The Senate recessed on November 16, and pro forma meetings were convened on November 20, 23, 27, and 29, with no business conducted. The Senate reconvened and conducted business beginning on December 3, 2007. Similar procedures were followed for the remainder of the 110 th Congress during other periods that would otherwise have been Senate recesses of at least a week in duration. For the remainder of his presidency, President Bush did not make any more recess appointments.

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 110th Congress

Table 1 summarizes appointment activity, during the 110 th Congress, related to full-time positions in the 15 departments. President George W. Bush submitted to the Senate 172 nominations to executive department full-time positions. Of these 172 nominations, 125 were confirmed; 13 were withdrawn; and 34 were returned to the President under the provisions of Senate rules.

President Bush did not make any recess appointments to the departments during this period.

Length of Time to Confirm a Nomination

The length of time a given nomination may be pending in the Senate has varied widely. Some nominations were confirmed within a few days, others were confirmed within several months, and some were never confirmed. This report provides, for each executive department nomination that was confirmed in the 110 th Congress, the number of days between nomination and confirmation ("days to confirm"). For confirmed nominations, an average (mean) of 104 days elapsed between nomination and confirmation. The median number of days elapsed was 92.

The methodology used in this report to count the length of time between nomination and confirmation differs from that which was used in previous similar CRS reports. The statistics presented here include the days during which the Senate was adjourned for its summer recesses and between sessions of Congress. The methodological change reduces the direct comparability of statistics in this report with those of the earlier research. Reasons for the change include the conversion of long recesses into a series of short recesses punctuated by pro forma sessions during the 110 th Congress; the fact that although committees may not be taking direct action on nominations in the form of hearings or votes, they are likely still considering and processing nominations during recesses; and a desire to be consistent with the methodology used by a majority of political scientists as well as CRS research on judicial nominations. In addition, an argument could be made that the decision to extend Senate consideration of nominees over the course of a recess is intentional, and the choice to extend this length of time is better represented by including all days, including long recesses. A more detailed explanation of this methodological change is located in Appendix E .

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 providing information, as of the end of the 110 th Congress, regarding the organization's full-time PAS positions, and a table listing nominations and appointments to these positions during the 110 th Congress. Data for these tables were collected from several authoritative sources.

The first of these two tables identifies, as of the end of the 110 th Congress, each full-time PAS position in the department, its incumbent, and its pay level. For most presidentially appointed positions requiring Senate confirmation, the pay levels fall under the Executive Schedule, which, as of January 2009, ranged from level I ($196,700) for Cabinet-level offices to level V ($143,500) for the lowest-ranked positions. An incumbent's name followed by "(A)" indicates an official who was, at that time, serving in an acting capacity. Vacancies are also noted in the first table.

The appointment action table provides, in chronological order, information concerning each nomination. 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 individuals were nominated more than once for the same position, usually because the first nomination was returned to the President.

Each appointment action table provides the average "days to confirm" in two ways: mean and median. Both are presented because the mean can be influenced by outliers in the data, while the median does not tend to be influenced by outliers. In other words, a nomination that took an extraordinarily long time might cause a significant change in the mean, but the median would be unaffected. Presenting both numbers is a better way to look at the central tendency of the data.

For a small number of positions in this report, the two tables may give slightly different titles to the same position. This is a result of the fact that the titles used in the nomination the White House submits to the Senate, the title of each position as established by statute, and the title of the position used by the department itself are not always identical. The first table presented for each department, the table listing the incumbents at the end of the 110 th Congress, relies upon data provided by the department itself in listing the positions. The second table presented, the list of nomination action within each department, relies primarily upon the Senate nominations database of the Legislative Information System (LIS). This information is based upon the nomination sent to the Senate by the White House, which is not always identical to the exact title of the position used by the department. However, the inconsistency only appears in a small minority of the positions listed in this report. Inconsistencies are noted in the footnotes following each appointment table.

Additional Appointment Information

Appendix A presents a table of all nominations and recess appointments to positions in executive departments, alphabetically organized by last name, and follows 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.

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, and nominations withdrawn. 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 110 th Congress.

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

As noted above, this report employs certain methods that differ from reports tracking appointments during previous Congresses. These methodological changes are explained in detail in Appendix E .

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 (TREAS)

Department of Veterans Affairs (DVA)

Appendix A. Presidential Nominations, 110 th Congress

Appendix B. Nomination Action, 110 th Congress

Appendix C. Senate Intersession Recesses and Intrasession Recesses of Four or More Days, 110 th Congress

Appendix D. Abbreviations of Departments

Appendix E. Change in Methodology from Previous Tracking Reports

The calculations of nomination-to-confirmation intervals provided in this report counted all the days within the interval, including those during summer recesses and between sessions of the Senate. The inclusion of all days differs from the methodology used in similar CRS reports for previous Congresses. In these earlier reports, days during August and intersession recesses were not included in calculations of nomination-to-confirmation intervals. The rationale for the earlier methodology was that the Senate was unlikely to continue consideration of nominations during these periods; committee hearings and votes, among other activities, typically do not occur during these times. The exclusion of days during only certain periods of adjournment—intersession recesses and August recesses, which are usually longer than 30 days—is suggested by Senate rules regarding when nominations are to be returned to the President. These provide,

Nominations neither confirmed nor rejected during the session at which they are made shall not be acted upon at any succeeding session without being again made to the Senate by the President; and if the Senate shall adjourn or take recess for more than thirty days, all nominations pending and not finally acted upon at the time of taking such adjournment or recess shall be returned by the Secretary to the President.

This earlier methodology was also consistent with the approach of some political scientists who study executive branch appointments.

The methodology for this report is different from that which was used in previous similar reports for several reasons. First, as discussed above in the section on recess appointments, from the latter part of the first session through the end of the 110 th Congress, the Senate chose to break up what would otherwise have been longer recesses into shorter recesses separated by pro forma sessions. This introduced two options for this report with regard to the calculation of nomination-to-confirmation intervals. The first option would have been to treat each series of short recesses created in this fashion as one long recess and to subtract these days from the nomination-to-confirmation interval. The second option would have been to treat each recess in the series of short recesses created in this fashion as a short recess, and not to subtract these days from the nomination-to-confirmation interval. Arguably, actions of the Senate and the President were consistent with the latter construction—short recesses as short recesses. Otherwise, Senate rules would have required the return of pending nominations (or the waiver of that rule) and the President could have made recess appointments. The Senate and the President did not take these actions. As a result, short recesses created by pro forma sessions are treated as short recesses in the count of the length of time to confirmation. It should be noted, however, that the inclusion of these days reduces the comparability of statistics provided in this report with statistics in previous similar tracking reports, since the intervals calculated in this report include days that in previous reports were part of longer recesses and therefore were subtracted from the length of the interval. Although the phenomenon underlying this methodological problem first arose during the 110 th Congress, it could arise again in future Congresses.

Other reasons for the methodological change are not unique to the 110 th Congress. First, in some cases, committee or floor action on a nomination that could have been completed before a recess has been, instead, deferred until after the recess. For such a nomination, the period of Senate consideration arguably has been intentionally extended. Counting all days, including those during a long recess, in calculations of elapsed time reflects that extension of Senate consideration. Second, it is unlikely that all work pertaining to nominations stops over a recess, and the inclusion of recess days is a reflection of the fact that the nominee is still under consideration, even during recess. Member and committee staffs may still be considering nominations at that time, even though they may not take direct action in the form of hearings or votes on the nominees. Ongoing activities may include investigatory work and interviews with nominees. Finally, although, as mentioned above, some political scientists who study nominations do subtract recess days during calculations of nomination-to-confirmation intervals, many others do not. In addition, the calculation of nomination-to-confirmation intervals in CRS research concerning judicial nominations does not exclude days that fall during recesses. By using methodology that is more similar to the work of other political scientists and to CRS judicial nominations research, the research presented here could be more easily compared and combined with related work. For all of these reasons, in this report, we employ a new methodology for calculating nomination-to-confirmation intervals.