9/11 Commission Recommendations: The Senate Confirmation Process for Presidential Nominees
Released: 2005-03-23T00:00:00

The 9/11 Commission's Proposal

On November 27, 2002, Congress created a commission charged with investigating theSeptember 11, 2001, terrorist attacks on the United States. The National Commission on TerroristAttacks Upon the United States, also known as the 9/11 Commission, was to

make a full and complete accounting of thecircumstances surrounding the attacks, and the extent of the United States' preparedness for, andimmediate response to, the attacks; andâ¦investigate and report to the President and Congress on itsfindings, conclusions, and recommendations for corrective measures that can be taken to prevent actsof terrorism. (3)

The panel's July 22 report was the culmination of a series of hearings and investigations by the paneland its staff into the terrorist attacks. The report included a wide-ranging series of proposals tochange intelligence agencies of the executive branch and some committee structures within thelegislative branch.

The 9/11 Commission's recommendations on the appointment process are designed to makeit quicker and more predictable for a relatively small group of nominees. The proposal is relativelysparse on details, and implementing it would require the Senate to flesh out the plan substantially;however, it is clear that the recommended changes in the Senate's confirmation process wouldprovide a certain up-or-down vote by the full chamber on all National Security Team nomineeswithin a definitive time frame (30 days) after a nomination is made at the start of an administration.

Congressional Response

On October 6, the Senate passed, by a vote of 96-2, legislation ( S. 2845 ),introduced by Senate Governmental Affairs Committee Chair Susan Collins and Ranking MemberJoseph I. Lieberman, that would implement many of the 9/11 Commission's recommendations. Asintroduced, the bill did not address the 9/11 Commission's proposal to institute a time-frame forSenate consideration of national security nominees at the start of a new presidential administration. During consideration of the measure, Senators adopted by voice vote an amendment that added"sense of the Senate" language to the bill. It states that the "Senate committees to which thesenominations are referred should, to the fullest extent possible, complete their consideration of thesenominations, and, if such nominations are reported by the committees, the full Senate should voteto confirm or reject these nominations within 30 days of their submission." This is, essentially, anaffirmation of the current confirmation process.

The House-passed version of the bill contains a different approach. The bill (an amendmentto S. 2845 , formerly H.R. 10 , which passed by a vote of 282-134) wouldrequire that the Office of Personnel Management create a list of all national security positions whichrequire Senate confirmation.

The House provision would not change the current system for the top level of nationalsecurity appointees, such as the Secretary of Defense, who are Level I employees on the ExecutiveSchedule. The President would chose his nominee and submit their name to the Senate for its adviceand consent. The nominee would not be confirmed in the position without Senate action.

For Executive Schedule Level II employees, such as the Deputy Attorney General, andExecutive Level III employees, such as an under secretary of State, however, the House provisionwould require that the Senate act within 30 days of receiving a nomination, or the nomination wouldgo into effect without action by the Senate. Finally, for Level IV and Level V national securityemployees who currently require Senate confirmation, the House provision would remove thatrequirement and make them appointed at the discretion of the President.

The House-passed bill does not contain any details about how the Senate would implementthe change for Level II and Level III employees, concerning the 30-day deadline, but it is reasonableto assume that the analysis of the 9/11 Commission's recommended 30-day deadline would beapplicable (see section "Implementation of the 9/11 Commission's Recommendation").

On November 20, House and Senate conferees on the 9/11 legislation reported out acompromise measure. It includes the Senate-passed "sense of the Senate" provision on presidentialnominations, not the House-passed language. Last-minute objections prevented either chamber fromvoting on the compromise measure at that time, but Congress returned in early December to considerthe bill. (4) The Housepassed the bill by a vote of 336-75 on December 7, 2004, and the Senate followed suit the next day,passing the bill by a vote of 89-2. President George W. Bush signed the bill into law on December17, 2004 ( P.L. 108-458 ).

Scope of the Issue

The National Security Team, as defined by the 9/11 Commission, would include roughly 31positions from the Defense Department, the Homeland Security Department, the Justice Department,the State Department, and the Central Intelligence Agency. The group extends from the heads of thedepartments down through and including the Under Secretary positions. (5)

In testimony before the Senate Governmental Affairs Committee on July 30, CommissionChair Thomas Kean told Members that the Senate should "treat these nominations unlike othernominations in that they recognize the speed with which we need those people in place." (6) The report of the 9/11Commission also pointed out that the time for transition between the Clinton Administration and theBush Administration was shortened. "The dispute over the election and the 36-day delay cut in halfthe normal transition period. Given that a presidential election in the United States brings wholesalechange in personnel, this loss of time hampered the new administration in identifying, recruiting,clearing and obtaining Senate confirmation of key appointees." (7)

The commission's recommendations built on the work of a series of commissions andscholars who have investigated the appointment process generally over the last 20 years. Virtuallyall of the studies reached a similar conclusion: that it takes too long to get presidential nominationsthrough the appointment process. The Presidential Appointment Initiative, for example, a projectof the Brookings Institution, found in 2001 that "there is ample evidence that the process for bothnominating and confirming talented citizens to presidential service is failing at its most basictasks." (8) That followeda similar study in 1996 called the 20th Century Task Force on the Presidential Appointment Process,which called for prohibiting Senators from delaying consideration of nominee by using extendeddebate, called a filibuster. (9)

"That the nomination and confirmation process is broken is a truism now widely acceptedby both Republicans and Democrats," wrote congressional scholars Norman Ornstein and ThomasDonilon in 2001. "The lag in getting people into office seriously impedes good governance. A newpresident's first year -- clearly the most important year for accomplishments and the most vulnerableto mistakes -- is now routinely impaired by the lack of supporting staff. For executive agencies,leaderless periods mean decisions not made, initiatives not launched, and accountability notupheld." (10)

Recent Experience

One of the complaints about the nominations process from scholars and commissions hasbeen that nominations can get bogged down in the Senate confirmation process, sometimes fallingvictim to parliamentary devices that can prevent a final vote on the nomination from taking place. An analysis of data on how the Clinton Administration and the current Bush Administration wereable to fill those offices considered to make up the National Security Team at the beginning of theiradministrations shows that Senate delay does not tend to be a major problem for this subset ofnominees. The Senate did not reject any of the National Security Team nominations in eitheradministration. (11)

The amount of time it took nominations to work their way through the Senate varied widelyin this small sample, from one day for secretaries of state and defense in both administrations, to 128days for the Defense Department's Under Secretary for Policy in the Clinton Administration. Forboth administrations, the Secretary of Defense and the Secretary of State were confirmed onInauguration Day.

As Table 1 shows, of the 31 positions in the Bush Administration that would be included inthe new deadline, 22 were confirmed ahead of the 30-day schedule, four were holdovers from theClinton Administration (and did not require reconfirmation) and five nominations took longer than30 days to win Senate confirmation. The median elapsed days from submission of the nominationuntil Senate confirmation was 21 days.

As Table 1 also shows, for all National Security Team nominees, the process of nominationby the President took longer than the process of confirmation by the Senate. In some instances, thedelay between the start of the vacancy to the choice of a presidential nomination was two to threetimes longer than the time from nomination to confirmation.

Of the five nominations that exceeded 30 days for Senate confirmation in the BushAdministration, all were confirmed within 73 days -- four of the five were confirmed in less than 60days. In all five instances, the delay between the start of the vacancy and the choice of nominee waslonger than the time between the nomination and confirmation of the nominee.

As Table 2 shows, the four holdovers from the Clinton Administration had a longerconfirmation time during their original consideration by the Senate. The mean time for thosenominations was 75 days.

As Table 3 shows, the Clinton Administration's National Security Team members were alsoconfirmed largely ahead of the 30-day deadline. For the 23 positions covered by the definition, (12) seven were considered bythe Senate for more than 30 days. One was a holdover from the previous administration (and didnot require reconfirmation), one of those was confirmed at 36 days, another at 44 days, the next after47 days and another at 51 days. The remaining two nominees had lengthy confirmations -- one was122 days and the final one was 128 days.

Table 3 also shows, however, that, as with the Bush Administration, the delays by theClinton Administration in making its appointments were generally longer than the Senateconfirmation process. Typically, the time to presidential nomination was significantly longer thanthe Senate confirmation, sometimes several times as long.

As this information shows, the 9/11 Commission's proposal for an accelerated Senateconfirmation process would not have affected 35 of the 49 National Security Team nominations thatwere in office before the 30-day deadline. A review of the data on the speed with which newadministrations have been able to get their National Security Team members in place suggests thisis an issue in a minority of cases.

Advice and Consent

The recommendation of the 9/11 Commission would deal with only a small subset of thepresidential nominations considered by the Senate. With respect to the offices included in theNational Security Team, however, it would place substantial new conditions on how the Senatecarries out its role in confirming presidential nominees. While the Constitution includes the Senatein the confirmation process, it does not spell out how the chamber should fulfill its role of providingadvice and consent to a nomination. The extent of legislative and executive control of the processhas in many respects remained undetermined.

In response to this Constitutional indeterminancy, some have asserted that the Senate shouldhave a co-equal role with the President in the process.

The Senate's responsibility for confirming presidentialnominees, although fixed firmly in the Constitution, remains unsettled in its application. The Senatewas not meant to be a passive participant. Delegates to the Philadelphia convention believed thatthe Senate would be knowledgeable about nominees and capable of voting wisely. Yet, for the mostpart, it has acted cautiously, uncertain of the scope of its own constitutional power. The source ofthis uncertainty is not the Constitution. Nowhere in that document, or in its history, is there anobligation on the part of the Senate to approve a nomination. On the contrary, the burden should beon the President to select and submit a nominee with acceptable credentials. (13)

Others have said the Senate should play a lesser role, allowing the President greater leewayin his choices for office than is currently the case. Law professor John C. Eastman told the SenateRules Committee on June 5, 2003, that

... the appointment power is located in Article II of theConstitution, which defines the powers of the President, not in Article I, which defines the powersof the legislature. As the Supreme Court itself has noted, by vesting appointment power in ArticleII, the framers of our Constitution intended to place primary responsibility for appointments in thePresident. The "advice and consent" role for the Senate, then, was to be narrowly construed. (14)

The practice of the Senate, however, has not systematically reflected either of theseperspectives. Historically, much of the regular order of business on the nomination and confirmationof presidential appointments has been regulated not by strict, formal rules, but rather by informalcustoms that can change (and have changed) over the years, as the relative balance of power betweenthe President and the Senate ebbs and flows. It is these traditions which form the process, accordingto appointments expert Michael J. Gerhardt.

These informal arrangements -- those not clearlyrequired or clearly prohibited by the Constitution -- have come to define the dynamic in the federalappointments process. The informal arrangements through which the system operates -- includingsenatorial courtesy; logrolling; individual holds, "blue slips"; consultation between presidents,members of Congress, and other interested parties, including judges; interest group lobbying;strategic leaking by administrations, senators and interest groups; manipulation of the press; themedia's effort to influence the news; and nominees' campaigning -- are the sum and substance of thefederal appointments process. Studying these arrangements provide even greater illumination thanstudying Supreme Court decisions or the Constitution itself of how the different branches of thefederal government interact on matters of mutual concern. (15)

Under these informal customs, individual Senators have, historically, been deeply involvedin the nomination and confirmation process. The procedures and traditions that have developed havetended to protect the autonomy of individual Senators to choose how to fulfill the advice and consentrole, rather than to dictate the process for all Senators. (16)

It is this combination -- unwritten Senate traditions and the protection of each Senator's rights-- that has led critics of the process to call for changes similar to those proposed by the 9/11Commission. "[T]he Senate's confirmation process is entirely consistent with all of its other norms,traditions and rules. Concern for the rights and prerogatives of individual senators gives rise tonumerous opportunities for obstruction and delay," argued political scientists Nolan McCarty andRose Razaghian. (17)

The Current Process

With respect to nominations to the National Security Team, the recommendations made bythe 9/11 Commission would require some major changes in the way the Senate typically conductsits business. In exchange for a relatively quick and predictable process, Senators as a group and asindividuals would relinquish some of their current rights under the Senate's rules and practices.

Under current practice, once the President has chosen an individual for a position, thenomination is submitted to the Senate, and referred to the committee with jurisdiction over theagency or office which the nominee would fill. The committee may or may not act on thenomination. If the committee approves the nomination, it goes before the full Senate, which mayor may not take up the nomination on the floor. If the Senate does proceed to consider thenomination, it may or may not proceed to a final vote. A final vote of the full Senate is required fora nomination to be confirmed. The President gives to the confirmed nominee a commission withthe seal of the United States, and the individual is sworn into office. (18)

Nominations are part of the executive business of the Senate (the other component beingratification of treaties). These are matters that come directly from the President and require theSenate's approval to implement. The Senate treats these items as separate from its legislativebusiness: they are placed on a different calendar (the Executive Calendar ), and the Senate must bein executive session to consider them. The official record of Senate action on treaties andnominations is known as the Executive Journal , while the record of Senate action on legislation andother matters is called the Senate Journal .

In practice, the chair of the committee of jurisdiction generally has the discretion whether tomove the nominee through his or her committee or not. The action can take the form of a hearingat which the nominee testifies or a markup of the committee to formally approve the nomination andsend it on to the full chamber, or both. If the committee reports a nomination, the majority leadermay ask unanimous consent, or move, that the Senate enter executive session to take it up. He is not required to take either action. (In principle, any Senator may move to take up a nomination, but inpractice the Senate treats this action as the prerogative of the majority leader.) If the Senate agreesto take up the nomination, it may proceed to a final vote, but again, it is not required to do so.

While a nomination is pending before the Senate, any Senator or group of Senators may actto delay or defeat the nomination by extended debate, called a filibuster. The Senate custom of"holds," which can allow a Senator or group of Senators to delay consideration of a measure ormatter, has also been used to prevent full Senate consideration of nominations.

While the vast majority of presidential nominees receive Senate action, not all do. Senaterules do not require that a nominee receive consideration. "There is nothing inherent in theappointments process that forces action, as there is, for example in the budget process. If theCongress fails to act on the budget, the unpleasant prospect of a government shutdown looms. Thisusually inspires action, even if it is not always completed by the first day of the new fiscal year. Anappointment carries no similar sense of urgency," noted political scientist G. Calvin Mackenzie. (19)

In the case of nominees, by contrast, if the Senate does act, there is no established time framefor that action. "The mere fact that the President submits a name for consideration does not obligatethe Senate to act promptly," wrote separation-of-powers scholar Fisher. (20)

Implementation of the 9/11 Commission's Recommendation

Committee Proceedings

The 9/11 Commission's proposal, and most likely the House-passed provision to S. 2845 , would presumably require that Senate committee chairs schedule confirmationhearings on the proposed members of the National Security Team. If hearings were not held on thenominee in a timely fashion or the nomination not reported out after a certain number of days, thenomination would presumably be discharged, either automatically or through a motion to discharge. As a result of this change, a nomination could come before the full Senate for consideration withouthaving had a hearing in the committee of jurisdiction. While some argue that too many nominationsare subject to Senate confirmation hearings, it is unlikely that Senators would want to skip such astep in the case of the Secretary of State or Secretary of Defense.

This change would constitute a major change in the established prerogative of committeechairs. The power of committee chairs to control the agenda of their panels is longstanding. Severaltimes in recent years, committee chairs have refused to grant a nominee a hearing, and effectivelyprevented the Senate from being able to act on the nomination. (21) The Senate can dischargea committee from consideration of a nomination, and frequently does so by unanimous consent whenthe nominations concerned are non-controversial. When there is opposition, however, the processto discharge the committee from further consideration of the nomination is difficult and subject tofilibuster, and has been used rarely.

Responding to concerns that committee chairs were too powerful in their ability to blockconsideration of legislation, the 1970 Legislative Reorganization Act created a new Senate rule toallow a majority of a committee to call a meeting without the approval of the chair. (22) It is rarely used, perhapsbecause of the inherent political consequences of challenging a committee chair's authority, becausethe chair retains control over the agenda for any new meeting scheduled, or because the threat issufficient to bring about action by the chair.

Implementing the 9/11 Commission's proposal would require guaranteeing action on anominee at the committee level. It would accordingly weaken the power of the chair to use his orher position to block a nomination.

Floor Consideration

The deadline proposed by the 9/11 Commission and the House also would seem to excludethe possibility of Senators placing holds on these nominees to postpone their consideration for anylength of time. It would mean that votes on these specific nominations would have to be protectedagainst being delayed by a filibuster.

Senators have several times refused to allow the Senate to reach a final vote on a nomination,thus permitting a filibuster, or extended debate, to kill that nomination. (23) In other instances, aSenator or a group of Senators has placed a "hold" on a nomination, which can also effectively killthe nominee's chance for confirmation. The system of "holds" is not a formal part of the Senaterules; rather, it is a practice honored by the Senate leadership. If a Senator or a group of Senatorstell their leader they want to place a hold on a nomination (or a piece of legislation), the leader maydecide to honor that request and not schedule the nomination for floor consideration. The leader alsomay decide to honor the hold for a specific period of time or not at all. The power of the hold liesin its implicit threat -- that if the item is scheduled for floor consideration, the concerned Senator andhis or her allies might wage a filibuster and try to prevent a final up or down vote on the matter. (24)

Holds and filibusters are essentially two versions of the negative power of the Senate and itsMembers -- the ability to stop something from happening, whether it be passage of piece oflegislation, ratification of a treaty or confirmation of a nomination. The 9/11 Commission'srecommendation, which calls for a guaranteed up or down vote on all nominees in the NationalSecurity Team, would require altering these traditions. In order to ensure that nominees receive afinal vote, it would be necessary to preclude the possibility of a successful filibuster. If thenomination had to be acted upon within 30 days, the hold would lose its power as well -- under thoserules, a delay of a day, even a week, is unlikely to be detrimental to a nominee's ultimateconfirmation.

Many critics argue that Senators should not be able to use these powers to block action onnominations, that it distorts the confirmation process and prevents the full chamber from workingits will. "Holds, mentioned nowhere in Senate rules, are antidemocratic and probablyunconstitutional (although not likely subject to judicial review since the courts tend to be deferentialto political questions)â¦Yet the hold subjects nominations to a single senator's veto," argue Ornsteinand Donilon. (25)

Political scientist Christopher J. Deering wrote that the practice of holds has been destructiveto the confirmation process. "[M]embers of the Senate of both parties have placed holds onparticular individuals. In some cases, the nominee is the target, in other cases merely a pawn, butin either case the use of the nominees as, in effect, hostages has undermined the integrity of thesystem.â¦ [T]he use of such holds is a serious abuse of the current system." (26)

As political scientist Barbara Sinclair has noted, however, holds are not meaningful unlessthey are backed up by the threat of filibuster. Therefore, it is the Senate's tradition of unlimiteddebate on most subjects, including nominations, that is at the heart of this dispute. Sinclair observed:

As long as members are willing to back their holds withactual extended debate, the leaders are faced with an impossible situation when floor time is short. Assuming that the bill is not "must" legislation, calling it up is likely to consume scarce timeunproductively, time for which the leaders have multiple and clamorous requests. (27)

Supporters of the Senate's tradition of unlimited debate argue that it is a necessary componentof the chamber's procedures. "Advocates of restrictions on debate rest their case on the cliches ofdemocracy, and transform government by a majority from an imperfect device into an eternalprinciple," wrote Senate historian Lindsay Rogers. "Yet curiously enough, freedom of debate,although sanctioning minority control by avoirdupois rather than by argument, has proved to be avaluable safeguard against executive inefficiency and corruption," he concludes. (28)

Senator J.W. Fulbright, in 1957, during Senate debate on a proposal to change its rules tomake it easier to invoke cloture and end debate, defended extended debate this way:

The great distinction between the Senate andthe other body of Congress is the power of the Senate to examine and to subject approval ofmeasures to delay, in order that the people themselves may be able to understand controversialissues. I hope Senators will not take seriously the argument that democracy is in some wayequivalent to majority rule, because there is nothing whatsoever to such an argument. There isnothing in our Constitution which in any respect implies, directly or indirectly, that majority ruleshould be the rule of the Senate. (29)

Others have argued that the full Senate must be able to act on presidential nominees and notallow one or several Senators to block a confirmation vote. Political scientist Brannon P. Denningput it this way:

The notion of "advice and consent" is mutable. It hasevolved from an alleged "rubberstamp" into a right to inquire into the jurisprudential commitmentsof Supreme Court nominees, to a right to disapprove nominees because a particular senator believesthat they are not "ambassadorial quality." Tools for facilitating "consensus" -- said to be the raisond'etre of most Senate rules and procedures -- have, in short order, been fashioned into weapons ofminority rule.â¦ [C]ustoms like the "hold" and the prerogative of committee chairs have, lately, beenexercised not for the benefit of the Senate as an institution, or even for the benefit of a particularparty, but for the benefit of individual senators. (30)

Implementation Requirements

Rules implementing the requirements outlined above would have the main features of anexpedited procedure. Expedited procedures are tools used by the House and Senate that can overridethe normal parliamentary procedure to ensure relatively quick action on a particular measure ormatter. Examples of expedited procedures, also known as "fast track" provisions, include theDefense Base Closure and Realignment Act of 1990 and the Trade Act of 1974, the process by whichCongress considers most trade agreements. (31)

Given its call for a deadline-mandated, up or down vote on each nominee in the NationalSecurity Team, the most likely way to implement the 9/11 Commission's recommendation or theHouse-passed provision of S. 2845 would be for the Senate to create a new expeditedprocedure that would apply to this specific set of nominations. Expedited procedures have notpreviously been used in the Senate to consider executive business, so enactment of the 9/11Commission's recommendations would be precedent-setting. That would not necessarily, however,be a barrier to using expedited procedures for executive business.

Necessary Elements. An expedited procedurereflecting the 9/11 Commission's recommendation and the House provision would need to includea time limit for action by the committees on nominations referred to them. This provision mightrequire that the committee hold a hearing on the nomination and report it to the full chamber by aset time after receiving it, such as 20 days. (32) An effective expedited procedure would need to include anenforcement mechanism at this stage, so that if the committee did not act, either the nominationwould automatically be discharged from committee and placed on the Executive Calendar , makingit available for consideration by the full chamber, or a motion to do so would be in order.

An effective expedited procedure also would need to provide some controls regarding Senatefloor action. Currently, under Senate precedents, a Member may move to go into executive sessionto take up a particular nomination without that motion being subject to debate, and thus a filibuster. The nomination itself, however, is subject to debate and, therefore, to filibuster. The expeditedprocedure would need to foreclose the possibility of filibustering a nomination, probably by placinga limit on the total amount of time the Senate could spend debating the nomination of a member ofthe National Security Team.

How much debate time would be required could be a tricky question to decide. The Senatespent no floor time debating the two nominations for Under Secretary of State for Public Diplomacyand Public Affairs it has approved during the Bush Administration. That position is included in the9/11 Commission's definition of the National Security Team. The Senate might, however, want tobe sure it includes sufficient debate time to consider other members of the National Security Team,such as Secretary of Defense, Secretary of State or Attorney General.

In general, the Senate does not tend to include in its expedited procedures a provisionautomatically calling a measure to the floor. (33) Usually, the expedited procedure would make it in order for themajority leader or another Member to bring the matter up. If desired, the expedited provision forNational Security Team nominations could include such a provision, requiring that within severaldays after the end of committee consideration, the Senate take it up. This provision would need tospecify when, in the Senate's normal course of daily operations, the nomination would come up. Because this procedure would be designed to apply to nominations, it also would need to providefor a motion that the Senate go into executive session or that the Senate be considered to have goneinto executive session at a specified time.

Finally, to implement the 9/11 Commission's recommendation fully, the expedited procedurewould need to require an up or down vote at the end of the debate for each nominee included in theNational Security Team.

In spite of all the requirements of an expedited procedure, it is possible that the Senate as abody might refuse to act on a particular nomination. The majority leader might simply decline tocall it up. It is not apparent how any form of procedure could provide effective recourse in thissituation. Expedited procedures in existing statutes often provide that if Congress does not act ona presidential proposal within a specified time, the proposal goes into effect. Permitting anomination to be treated as confirmed without affirmative action by the Senate, however, would notlikely be acceptable to the Senate, and the validity of such an outcome might well be questioned onconstitutional grounds.

Means of Implementation

The Senate could institute procedures to implement the 9/11 Commission's proposal or theHouse provision in several ways: by enacting an expedited procedures law, by amending the Senate'sstanding rules or its standing orders, through adoption of a unanimous consent agreement, or bypassage of a constitutional amendment.

Expedited Procedures Statute. Language to createan expedited procedure for the National Security Team could be included in a larger bill toimplement other elements of the 9/11 Commission' recommendations, such as the creation of aDirector of National Intelligence. If the expedited procedures legislation were subject to a filibuster,60 votes would be required to invoke cloture. (34) Legislation including an expedited procedure, however, couldbe enacted into law only through the constitutional lawmaking process, requiring action by the Houseof Representatives and the President as well as by the Senate. This method of implementation raisesthe question whether the Senate would be willing to involve the House and the President in makingchanges to the confirmation process, a matter which is bound up in with its own rules and specialconstitutional prerogatives.

Amending Senate Rules. Similar changes alsocould be implemented by amending the Senate rules. This approach would have the advantage tothe Senate of not having to go through the House or be signed by the President; rather, the changeswould take effect as soon as the Senate adopted them. The difficulty with this approach is that, ifthe changes to the rules were opposed by a filibuster, it would take a two-thirds vote of those present,as many as 67 Senators, to invoke cloture and cut off debate, which is a very high threshold to meet.

Constitutional Amendment. The Senate alsocould try to amend the Constitution to redefine the confirmation process along the lines of the 9/11Commission's recommendations. This approach might be considered less promising becauseconstitutional amendments must be passed by two-thirds of those voting, or as many as 67 votes. In addition, once in place, such a change would be extraordinarily difficult to reverse or modify.

Unanimous Consent. The Senate also could tryto amend its rules to conform to the 9/11 Commission's recommendations by a unanimous consentagreement. For this approach to succeed, all Senators would have to agree on a plan to implementthe new confirmation procedure -- one objection would prevent the agreement from going into effect. Unanimous consent agreements have been used to structure debate on specific nominations. Thisagreement, however, would be binding into future Congresses, unless it specified otherwise or wasmodified by another unanimous consent agreement.

Standing Order. Finally, the Senate could try toamend its rules through adoption of a Standing Order, which would take the form of a simpleresolution. Such a Standing Order would have effects like those of a rule, but the resolution wouldrequire 60 votes for cloture if it was filibustered, not two-thirds of Senators voting. Such a standingorder resolution was used for the creation of the Permanent Select Committee on Intelligence (S.Res.400, 94th Congress).

Implications for the Confirmation Process

The Balance of Nomination Politics

One impact of the ability of a Senator to filibuster a nominee has been that negotiations overother matters, both with the executive branch and among fellow Senators, have been broadened toinclude all matter of Senate business, a concept known as linkage. For example, a Senator'sobjections to a particular nominee might be disposed of by permitting that Senator to offer anamendment to a bill that is soon to be considered on the Senate floor. Taking nominations out ofthis equation could shift the balance of power between the executive and legislative branches.

"The appointments process is deeply contentious, and as legislative policymaking has grownmore difficult in recent decades, the process has increasingly become a venue for pitched battles overthe shape of public policy," wrote appointments expert Mackenzie. He continued:

More and more, the contentiousness in the appointmentsprocess is driven not by questions of the fitness of nominees but by policy disagreements. Senatorsvote against nominees, and nominations fail, because the appointments process has become a policybattlegroundâ¦ This is not a new phenomenon, this use of the appointments process to wage policybattles. In fact, it has always been a characteristic of the appointments process. (35)

Mackenzie noted that President Andrew Johnson fought with the Senate over several of his nomineesto head the national bank and of Roger Taney to be Secretary of the Treasury. What is different now,he said, is the extent to which those connections are made.

Political scientists Nolan McCarty and Rose Razaghian studied more than 100 years ofSenate action on nominations. They said: "The thrust of our theory is that the supermajoritarianismof the Senate in general and the confirmation process in particular gives partisan and ideologicalminorities a strategic opportunity to have an impact on public policy by delaying nominations thatwould pass on a simple majority vote." (36)

For some, the ability to engage in extended debate on (and effectively block) measures ormatters is what empowers the Senate to deal on equal footing with the President in their fights overboth nominations and legislation. Political scientist Rogers argued that "For the fact of the matteris, as I hope to show, that, as the much vaunted separation of powers now exists, unrestricted debatein the Senate is the only check upon presidential and party autocracy. The devices that the framersof the Constitution so meticulously set up would be ineffective without the safeguard of senatorialminority action." (37)

Some also believe that the Senate's opportunity to play a vigorous role in the nomination andconfirmation process is essential to the public's trust in the process. "Nonetheless, the process ofvetting and voting on the president's candidates for high position is an essential balance wheel in ourcomplicated form of government. It lends legitimacy to the whole structure, and it is worth theoccasional loss of a good person," wrote former judge, and former Member of Congress, AbnerMikva. (38) Hecontinued:

Neither branch always chooses good people, as historyshows, and frequently the best people don't get appointed. Learned Hand never made it to theSupreme Court. Nonetheless, political involvement, including confirmation by the very politicalSenate, offers a reality check on who gets the power to make very important judicial decisions forlife. The case is a little less compelling for appointments to the executive branch, but it still can bemade. Most of the federal work force come into their positions and are protected in them, by a civilservice system based on meritocracy. For those relatively few policy makers whose appointmentsrequire Senate confirmation, an extra "look see" is justified. (39)

Others believe that the delaying strategies being employed by some in the Senate detract fromthat legitimacy. (40)

And some contend that it is not right to use nominations as bargaining chips in legislativenegotiations. "The Senate's constitutional and institutional role of advice and consent is beingsupplanted by informal, extra-constitutional customs that allow individual senators to effectivelyveto the President's nominees -- even if only to gain leverage with the executive branch on anunrelated matter," wrote Denning. (41)

Changing Politics Rather Than Rules

Any change to the confirmation process of the kind proposed by the 9/11 Commission wouldalmost certainly also influence the balance of power between the executive and the legislativebranches. The ability to block a final vote on a nomination has become a critical element in theSenate's power relationship with the President, both for its action, or inaction, on the nominationitself and, frequently, for a Senator or group of Senators to gain leverage in negotiations on othermatters. A vote deadline, for example, could still lead to a defeat, so requiring a vote could lead tomore presidential defeats or to pressure to go along with the President so as to not hand him a defeat.

Political scientist Burdett Loomis observed that trying to change the Senate's rules may notbe an effective plan. "Is there any indication that the Senate might smooth the way for futurenominees? Given the profound changes in the chamber over the past twenty-five years -- the greaterlatitude allowed individual members and the intense partisanship that dominates muchdecision-making -- it seems unlikely that reformers would profit much from attempting to reshapeSenate procedures." (42) Instead, he argued, "Striving to "govern together" by bridging the separate institutions may bevaluable than seeking to change an institution that has proved highly resistant to structuralreforms." (43)

If the history of the confirmation process is more about practices than rules, perhaps it wouldbe useful to consider informal changes in the dynamics that undergird the process. Instead of settingup timetables for action, this approach would build upon a view that the problem is not procedural,but political.

Political scientist Christopher J. Deering wrote that politics has always been a part of theprocess. "The relationship between the executive and legislative branches has been and remainsessentially political. That should not change. The Senate's role in the review of executive personnelis but one example of that political relationship. The Senate's role in the confirmation process wasdesigned not to eliminate politics but to make possible the use of politics as a safeguard. From theoutset the political motivations of the two branches were to be a protection against tyranny." (44)

"The one enduring characteristic of the process is that it is as deeply and intensely politicalnow as it has always been," (45) agreed Mackenzie. The process is political, he asserted, becauseits results can have a major impact on policy-making, and therefore, politics.

Conflict occurs in the appointment process for a verysimple reason. Appointments matter. Were that not the case, presidential administrations would nothave several dozen White House aides devoting full time to appointment decisions; Senatecommittees would not hold hundreds of hours of confirmation hearings; interest groups, agencies,political parties and members of the House would not spend their time and resources trying to shapeappointments decisions. Yet they do all these things, and they do them because they think it makesa difference who gets appointed to serve in particular federal offices. (46)

As a result, when the process has worked, it frequently was because the two branches ofgovernment found a way to make it work. "The appointment power operates in a framework ofstudied ambiguity, its limits established for the most part not by court decisions but by imaginativeaccommodations between the executive and legislative branches," wrote separation-of-powersscholar Fisher. (47)

Broader Implications

The 9/11 Commission's proposal provides an occasion for the Senate to evaluate the largerquestion of its confirmation process and its role in the presidential appointment process. Adoptionof the recommendation, for example, could open the door to consideration of ever more nominationsthrough expedited procedures. What would a new process mean for other presidential nominations,particularly those to the judiciary?

For several years, the Senate has been debating the proper role of the President and Senatorsin the nomination and confirmation of the nation's federal judges. During the ClintonAdministration, critics charged that the Judiciary Committee was not acting on all the nominationsit needed to. During the Bush Administration, the controversy has been over the use of the filibusterto block a final vote on a judicial nominee. (48)

Before the 9/11 Commission released its recommendations, Senator Arlen Specter hadintroduced a resolution that would establish a "protocol" for the confirmation of federal judges. Hisplan ( S.Res. 327 ) would establish timetables for action at both the committee andSenate floor stages, and it would effectively prohibit filibusters of judicial nominations. PresidentGeorge W. Bush on October 30, 2002, proposed a similar plan for the Senate's confirmationprocess. (49)

S.Res. 138 , introduced by Senate Majority Leader Bill Frist on June 26, 2003,

would set up a diminishing threshold for invoking cloture on presidential nominations that aresubject to Senate approval. The threshold necessary for invoking cloture would drop each time theSenate voted on a cloture motion on a particular nominee until it reached 51 Senators, a majority ofthe chamber.

Given the interest already expressed, some Senators might want to expand the 9/11Commission's recommendations to include a broader number of presidential nominees. The 30-daytimetable would likely have to be adjusted to allow the Senate to complete its work on a largernumber of nominations.

On the one hand, this action could put in place a definitive system for the consideration ofpresidential nominees -- it could bring order and predictability to the entire process. On the otherhand, it might rush the process for some nominees and make it more difficult for Senators to defeata nomination they oppose.

Alternative Approaches

Existing Rules. Instead of, or in addition to,instituting new procedures to expedite action, the Senate might exercise more control over threatenedfilibusters against nominations by enforcing more stringently its existing rules. Under currentprocedures, debate on nominations and treaties is in some respects easier to limit than on legislativematters. First, the motion to proceed to consider a nomination may be offered in a non-debatableform, whereas the motion to proceed to consider legislation is usually debatable. Second, the "TwoSpeech Rule" of the Senate limits each Senator to two speeches per day on any given question. Withrespect to legislative matters, this rule is not a viable deterrent to extended debate, for each newamendment is viewed as a new question on which each Senator may speak two more times. Onun-amendable matters, such as nominations, the Two Speech Rule could more effectively be usedas a procedure to limit debate indirectly.

Under current interpretations, however, the two-speech rule has proved to be an ineffectivedeterrent against extended debates on nominations because it has been interpreted to apply to thecalendar day. On each new calendar day every Senator is able once again to make two speeches onthe pending nominee. As a result, since the late 1980's, the Senate has rarely sought to enforce thisrule. A reinterpretation of the rule in its application to nominations could make it more effective.

Given such an interpretation, it would be easier for Senate leaders to overcome filibustersagainst a nominee by forcing opposing Senators to speak at length. In modern practice, mostfilibusters feature delay by means other than debate (quorum calls or agreements to turn to otheritems of business). In effect, the threat of a filibuster is treated as though the Senate is beingprevented, through extended debate, from reaching a final conclusion on the measure or matter athand. Keeping the Senate in continuous executive business session for consideration of anomination could make it more difficult for Senators to sustain a true filibuster, and, perhaps, reducethe incidence of filibuster threats.

Expiring Nominations. Another approach mightbe to place a time limit on a presidential nomination. While such a requirement might seemcounterintuitive, it would prevent an endless delay in filling the position in question. If the Senatedid not act on a nomination after a defined period of time, say 60 days, it would automatically bereturned to the President. While the President would have the ability to renominate the individualin question, if he so chose, he could also take the opportunity to reconsider his choice without thepolitically sensitive problem of asking a nominee to step aside.

Table 1. Initial Appointments by President George W. Bush to Top Positions at the Departments of Defense,Homeland Security, Justice, and State, andthe Central Intelligence Agency

Source: This table was created by [author name scrubbed], Analyst in American National Government, CRS, Aug. 18, 2004.

a. The Homeland Security Act of 2002 ( P.L. 107-296 ), which created the Department of Homeland Security, was signed into law on 11/ 25/02. Theposition of Under Secretary of Defense for Intelligence was created by P.L. 107-314 , sec. 901(a), enacted 12/02/02.

b. Vacancy information for Mueller's predecessor, Louis J. Freeh, is from the FBI's history page, available at http://www.fbi.gov/libref/directors/freeh.htm .

c. Although the first day the new President submitted nominations to the Senate was Inauguration Day, Senate committees held hearings on some topnominations before that time and the Senate was therefore ready to confirm them on the same day they were nominated.

d. This position was created by P.L. 107-314 , sec. 901(a), enacted 12/02/02.

e. On Jan. 27, 2003, President Bush announced his intention to designate England, Hutchinson, Hale, and one other individual as acting officials in theirintended positions. (U.S. President (George W. Bush), "Digest of Other White House Announcements," Weekly Compilation of PresidentialDocuments , vol. 39, Jan. 27, 2003, p. 145.) These actions were taken under Section 1511(c)(1) of the act. (Information received from Departmentof Homeland Security, Office of the Deputy Secretary, via telephone conversation, Jan. 28, 2003.) England, Hutchinson, and Hale were laterconfirmed as shown.

f. According to DHS sources, Brown was appointed under Section 1511(c)(2) of the act, which provides that reconfirmation by the Senate is not requiredby the law for "any officer whose agency is transferred to the Department pursuant to this act and whose duties following such transfer are germaneto those performed before such transfer." (Information received from Department of Homeland Security, Office of Legislative Affairs, viatelephone conversation, Mar. 12, 2003.) He was previously nominated to be deputy director of the Federal Emergency Management Agency(FEMA) on 03/21/02 and confirmed on 08/01/02.

g. Technically Beers was nominated twice. She was first nominated on 06/29/01and this nomination was returned to the President on 08/03/01at thebeginning of a 31-day Senate recess under the provisions of Senate Rule XXXI, Paragraph 6 of the Standing Rules of the Senate. She wasnominated again on 09/04/01. The 31 days of the Senate recess are not included in the calculations, in this row, of days elapsed.

Table 2. Appointment Information for Four William J. Clinton Appointees Who Continued in Office Under PresidentGeorge W. Bush

Source: This table was created by [author name scrubbed], Analyst in American National Government, CRS, Aug. 18, 2004.

a. Information on the departure date for Larson's predecessor, Stuart Eizenstat, is from Office of Personnel Management (OPM) records. The departuredate for Tenet's predecessor, John M. Deutch, is noted in R. Jeffrey Smith, "Having Lifted the CIA's Veil, Deutch Sums Up: I Told You So," TheWashington Post , Dec. 26, 1996, p. A25. John Gordon, who preceded McLaughlin, reportedly took a new position as of 06/27/00, but his precisedate of departure from the CIA could not be determined (Associated Press Online, "Clinton Names New No. 2 at CIA, June 29, 2000). Dempseywas the first person to hold the position of Deputy Director of Central Intelligence for Community Management, which was created by P.L.104-293 , sec. 805, enacted 10/11/96.

b. The Senate adjourned on 07/27/00 and reconvened on 09/05/00. The 39 days of that recess are not included in the calculations, in this row, of dayselapsed.

c. The Senate adjourned on 11/13/97 at the end of the 1st session of the 105th Congress and reconvened on 01/27/98. The 74 days between the 1st and2nd sessions of the 105th Congress are not included in the calculations, in this row, of days elapsed.

Table 3. Initial Appointments by President William J. Clinton to Top Positions at the Departments of Defense,Justice,and State, and the Central Intelligence Agency

Source: This table was created by the author with extensive assistance from [author name scrubbed], Analyst in American National Government, CRS.

a. Although the first day the new President submitted nominations to the Senate was Inauguration Day, Senate committees held hearings on some topnominations before that time and the Senate was therefore ready to confirm them on the same day they were nominated.

b. The Senate adjourned on 08/7/93 and reconvened on 09/07/93. The 30 days of that recess are not included in the calculations, in this row, of dayselapsed.

c. This position was created by P.L. 103-160 , sec. 903, enacted 11/30/93.

d. Freeh's predecessor, William S. Sessions, was fired by President Clinton on July 19, 1993. Ana Puga, "Clinton fires FBI's Sessions, expected to nameN.Y. judge," The Boston Globe , July 20, 1993, p. 1.

e. Wirth was confirmed into the position of counselor at the Department of State. After a reorganization, the name of the position became under secretaryof State for global affairs. John M. Goshko, "State Department Reorganizes Ranks; As Many as 40 Deputy Assistant Secretary Job WillDisappear," The Washington Post , Feb. 6, 1993, p. A8.

f. This position was created by P.L. 105-277 , sec. 1313, enacted 10/21/98.

g. Studeman was a holdover from the previous Bush Administration. Studeman's predecessor, Richard J. Kerr, resigned on Jan. 14, 1992. ElaineSciolino, "No. 2 C.I.A. Official Quits Post," The New York Times , Jan. 14, 1992.

h. This position was created by P.L. 104-293 , sec. 805, enacted on 10/11/96. The Senate adjourned on 11/13/97 at the end of the 1st session of the 105thCongress and reconvened on 01/27/98. The 74 days between the 1st and 2nd sessions of the 105th Congress are not included in the calculations,in this row, of days elapsed.