Appointment Power

The Constitution gives the Senate the right to confirm or reject presidential appointments to many government positions. Senators sometimes use this “advice and consent” power to press for their political beliefs and to assert Congress's independence from the executive branch.

Like the authority to approve or reject treaties, the right to review presidents' choices for jobs within the government is given only to the Senate. The House does not vote on presidential nominations, and representatives rarely have much influence in decisions about which people the president will appoint.

Senators participate in the selection of Supreme Court justices, cabinet officers, ambassadors, and other high-level government officials. Only the president has the formal right to select someone to fill one of those positions. But the Senate has used its power to reject presidential appointments and pressure the president into selecting people more to its liking. In some cases, such as certain federal judgeships, senators traditionally have dictated the selection of nominees.

[Page 14]In the vast majority of cases, however, the Senate's power over appointments is little more than a bureaucratic chore. The Senate typically receives tens of thousands of nominations a year, most of which are routine military and civilian appointments and promotions. Routine appointments include those to the Foreign Service and Public Health Service. In the 105th Congress (1997–1999), for example, the Senate received 46,290 nominations, of which 45,878 were confirmed. By the 110th Congress (2007–2008) the nominations totaled 45,237, with 44,677 confirmed.

The president's nominations for high-level positions historically have been approved by the Senate with little debate or objection. But during President Barack Obama's administration, the increasing partisan tone in Washington was apparent in the confirmation process. During the last two years of President George W. Bush's administration, in which Democrats controlled the Senate, senators confirmed 740 of 981 nominees to cabinet and subcabinet positions, a rate of 75 percent, according to Senate statistics. However, in the final two years of Obama's first term, 285 of 503 civilian nominees were confirmed, a rate of just 57 percent.

Most senators believe that the president has a right to pick his cabinet officers, unless one of his choices has committed some illegal or unethical action or holds beliefs that are repugnant to most Americans. Since Congress first convened, the Senate has rejected only nine nominees for cabinet positions, although others were withdrawn when unfavorable information emerged.

A similar argument often is made about Supreme Court nominations: that the president, who was endorsed by the people in the last election, has the right to name a justice who agrees with the president's legal philosophy. That argument has less force, however, because Supreme Court justices serve for life rather than just for the term of the incumbent president. Twenty-nine Supreme Court nominations (including one person who was nominated twice) have been rejected or dropped as a result of Senate opposition. A similar argument developed about lower courts, especially the circuit courts of appeal, in the latter decades of the twentieth century and into the twenty-first as liberal and conservative interest groups fought tenaciously over the philosophical orientation of the entire federal judiciary.

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