Report to Congress on Senate Nomination Holds

July 18, 2023 10:01 AM

The following is the July 18, 2023, Congressional Research Service report, Hold on Nominations.

From the report

In the Senate, a hold on a nomination is a communication to the majority or minority leader that a Senator would object to approving the nomination by unanimous consent. When Senators inform their leader that they would object to approving a category of nominations by unanimous consent, such as all nominations to a particular government agency, they are said to be placing a blanket hold on those nominations.

Unanimous consent is not necessary to approve a nomination in the Senate, but unanimous consent facilitates approving a nomination quickly. The President sends the Senate thousands of nominations each year, a majority of which are military promotions and appointments. The Senate routinely considers and approves most of them in large groups (en bloc) by unanimous consent. Absent unanimous consent, the Senate must consider and vote on each nomination separately (that is, on each individual nominated to each position). As a result, nominations subject to a blanket hold may have their consideration delayed or prevented due to the amount of floor time it would take to consider them individually.

Approving a nomination by unanimous consent requires that a Senator ask, during a session of the Senate, for that action to occur. Such requests are usually made by the majority leader (or his designee), and the Presiding Officer responds by inquiring if any Senator objects to the unanimous consent request. If no Senator objects, then the nomination or nominations are approved—more formally, the nominations are said to be confirmed by the Senate. In practice, the majority leader does not ask unanimous consent to confirm nominations without first communicating with the minority leader and all other Senators to determine if any Senator would object. If the majority leader learns any Senator would object, he usually does not ask unanimous consent on the floor and may try to address the concerns of the Senator. If a consent request has not been cleared in advance, a Senator opposed to the request must formally object on the floor to block the action.

In response to a hold, the Senate could choose to pursue consideration of a single nomination without unanimous consent. The Senate can approve nominations using the cloture process
in Senate Rule XXII. The cloture process was designed to bring the Senate to a vote on a matter, even in the face of determined opposition to having a vote. In recent years, the Senate has interpreted the cloture rule to require majority support to end debate on a nomination, and also to establish that two hours is the maximum time for debate on most nominations after cloture is agreed to unanimous consent, the steps to confirm a nomination include:

  • The Senate approves a non-debatable motion to proceed to executive session to take up a nomination on the Executive Calendar. (Normally this motion is approved immediately without a roll call vote—but with sufficient support, a Senator could secure a roll call vote on this question. The motion requires a simple majority to pass.)
  • The majority leader (or his designee) files cloture on the nomination. (The cloture motion asks if the Senate wishes to bring debate to a close on the nomination.) Absent unanimous consent to alter this “ripening period,” the Senate must wait two session days before voting on cloture. The Senate can conduct other business during these two days, and usually does.
  • Two days of session later, the Senate votes on cloture. The vote is required to be a roll call vote under the rule. If a majority of Senators voting support cloture, then cloture is said to be invoked, and further consideration of the nomination is limited.
  • The Senate conducts post-cloture debate on the nomination. For all but the highest-ranking nominations, the maximum time for consideration of a nomination after cloture is invoked is two hours. Once cloture is invoked on a matter, the Senate can consider other business during the post-cloture period only by unanimous consent.
  • After post-cloture debate time expires, or when no Senator seeks to discuss the nomination further, the Senate votes on the nomination. This can be by voice vote, but with sufficient support a Senator could secure a roll call vote on the question of confirming the nomination. The motion requires a simple majority to pass.
  • To make the confirmation vote final, and in order to immediately return the approved nomination to the President, the Senate routinely takes another parliamentary step by unanimous consent. To prevent the possibility of a re-vote on the nomination, the Senate tables (meaning, adversely disposes of) a motion to reconsider (a motion that would allow a re-vote). (Absent unanimous consent, the Senate could vote to table the motion to reconsider.)

The Senate often confirms nominations without unanimous consent by using the cloture process just described. Confirming a large number of nominations using the cloture process could take considerable floor time. The process can be somewhat expedited by filing cloture on multiple nominations on the same day (sometimes referred to as stacking cloture motions). Cloture motions filed sequentially on multiple nominations ripen simultaneously after the next two days of Senate session. Each nomination must still be considered separately, however, which would usually mean two roll call votes (one on cloture and one on confirmation, each approximately 15 minutes) and then up to two hours of debate time on each nomination.

When deciding when and whether to stack cloture motions on multiple nominations, another consideration is the possible effect on other items of business on the Senate agenda. Once cloture has been filed on a matter, it requires unanimous consent to withdraw the cloture motion. And once cloture is invoked, it requires unanimous consent to move on to any other Senate business. The floor time required to approve large numbers of nominations individually without unanimous consent can result in the Senate not choosing to consider some nominations.

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