Presidential Appointments to Full-Time Positions in Executive Departments During the 111th Congress, 2009-2010
Released: 2014-07-15T00:00:00

In troduction

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 111 th Congress, all nominations to executive-level full-time positions in the 15 executive departments. It excludes appointments to regulatory boards and commissions and independent and other agencies, which are covered in other CRS reports.

A profile of each agency tracks the appointments to positions within the agency, providing information on Senate activity (confirmations, rejections, returns to the President, and elapsed time between nominations and confirmation) as well as further related presidential activity (including withdrawals and recess appointments). The profiles also identify, for each agency, the executive-level positions in the agency requiring Senate confirmation, the incumbents in those positions as of the end of the 111 th Congress, and the pay levels of those officials.

The Appointment Process for Advice and Consent Positions

The Constitution (Article II, Section 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, as well as some subordinate officers. Officers of the United States are those individuals serving in high-ranking positions that have been established by Congress and "exercising significant authority pursuant to the laws of the United States" (emphasis added).

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 Nomination6

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" (Office of Government Ethics (OGE) 278), the "Questionnaire for National Security Positions" (Standard Form (SF) 86), a supplement to SF 86 ("86 Supplement"), and sometimes a White House Personal Data Statement. The vetting process often includes a background investigation conducted by the Federal Bureau of Investigation (FBI), which prepares a report that is delivered to the White House. It also includes a review of financial disclosure materials by OGE and an ethics official for the agency to which the candidate is to be nominated. If conflicts of interest are found during the background investigation, OGE and the agency ethics officer may work with the candidate to mitigate the conflicts. At the completion of the vetting process, 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.

For a position located within a state (e.g., U.S. attorney, U.S. marshal, and U.S. district judge), the President, by custom, frequently has nominated an individual recommended by one or both Senators from that state (if they are from the same party as the President). 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, including 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.

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 "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…" 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 and 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, either during a session (intrasession recess appointment) or between sessions (intersession recess appointment). Such recess appointments expire at the end of the next session of the Senate.

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 earlier nomination is pending.

Although a recess appointee whose nominations to a full term is subsequently rejected by the Senate may continue to serve until the end of his or her recess appointment, a provision of the FY2008 Financial Services and General Government Appropriations Act may prevent him or her from being paid after the rejection.

From the 110 th Congress on, Congress has periodically used specific scheduling practices in an attempt to prevent the President from making recess appointments. The evolution of these practices, the President's response to them, and associated controversies are beyond the scope of this report. Detailed information may be found in other CRS reports. Notably, these practices were used only once during the 111 th Congress.

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 (FVRA), 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.

A temporary appointment made under the FVRA is limited to 210 days from the date of the vacancy, 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 the vacancy occurs during 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 111th Congress

Table 1 summarizes appointment activity, during the 111 th Congress, related to full-time executive-level positions in the 15 departments. President Barack H. Obama submitted to the Senate 347 nominations to executive department full-time positions. Of these 347 nominations, 293 were confirmed; 16 were withdrawn; and 38 were returned to the President under the provisions of Senate rules.

Length of Time to Confirm a Nomination

The length of time a given nomination may be pending in the Senate can vary widely. Some nominations are confirmed within a few days, others are confirmed within several months, and some are never confirmed. This report provides, for each executive department nomination that was confirmed in the 111 th Congress, the number of days between nomination and confirmation ("days to confirm"). For confirmed nominations, an average (mean) of 73.2 days elapsed between nomination and confirmation. The median number of days elapsed was 52.0.

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 111 th Congress, regarding the organization's full-time PAS positions, and a table of appointment action with regard to these positions during the 111 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 111 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 the end of the 111 th Congress, ranged from level I ($199,700) for cabinet-level offices to level V ($145,700) 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.

The appointment action table provides, in chronological order, information concerning each nomination or recess appointment. It shows the name of the nominee or recess appointee, 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.

The appointment action tables that list more than one nomination also give statistics on the length of time between nomination and confirmation. Each appointment action table provides the average "days to confirm" in two ways: mean and median. Both are presented because although the mean is a more familiar measure, it can be influenced by extreme values ("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 provides a more accurate portrayal of 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 in each department profile, the table listing the incumbents at the end of the 111 th Congress, relies upon data provided by the department itself in listing the positions. The second table presented, the list of Appointment 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, nominations withdrawn, and recess appointments. The table also provides the mean and median numbers of days to confirm a nomination.

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

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, 111 th Congress

Appendix B. Appointment Action, 111 th Congress

Appendix C. Abbreviations of Departments