Senate rules empower committees to obstruct the confirmation process

Dianne Feinstein’s, D-Calif., absence from the Senate has slowed the confirmation process for President Biden's judicial nominations. This slowdown is because an evenly divided Judiciary Committee cannot advance nominees to the full Senate for further review over the objections of Republicans on the panel. While senators have agreed to advance some of President Biden's judicial nominations, others remain stuck in the Judiciary Committee due to Republican opposition.

Feinstein’s absence highlights how a minority of senators on the Judiciary Committee can use the rules to prevent the full Senate from debating a presidential nomination. Because a nomination is not eligible for consideration on the Senate floor until a committee has reported it, the Senate’s rules empower a small number of senators to effectively block a debate and confirmation vote. Additionally, committee rules giving the chairman the prerogative to schedule hearings and markups and those allowing members to delay a markup by one week empower an individual senator to singlehandedly delay any nomination. 

The Confirmation Process

Senate Rule XXXI governs the consideration of nominations in executive session. The Senate is in executive session when considering a nomination, treaty, or executive business. (The Senate is in legislative session when considering legislation or legislative business.) According to Rule XXXI, "the final question on every nomination shall be, 'Will the Senate advise and consent to this nomination?'" If a majority of the Senate's members answer in the affirmative, the nominee is confirmed.

Yet even before receiving an up-or-down confirmation vote, the nominee must first be eligible for Senate consideration (i.e., the nominee must be on the Executive Calendar). In most instances, that means that the committee of jurisdiction must first approve the nominee. Rule XXXI stipulates, "When nominations shall be made by the President of the United States to the Senate, they shall, unless otherwise ordered, be referred to appropriate committees." And Rule XXVI specifies that a committee majority must report "a measure or matter."

Circumventing Committees

If a majority of the Judiciary Committee refuses – or is unable - to advance a nominee, any senator can use the discharge process to force action on the nomination. However, the Senate's discharge process is cumbersome. It requires a super-majority of senators to succeed in the face of minority opposition.

Alternatively, senators can amend Rule XXXI to create a Rule XIV-style mechanism for placing presidential nominations onto the Senate’s Executive Calendar if the Judiciary Committee – or other committee of jurisdiction - has not acted on the nominee after a specified number of days.

Rule XIV empowers senators to bypass committee consideration of bills and joint resolutions by placing them directly on the Senate’s Legislative Calendar. Rule XIV does not guarantee that the Senate will consider the bill or joint resolution. Once a bill or joint resolution is on the Legislative Calendar, any senator may make a motion to proceed to its immediate consideration. Rule XIV, therefore, empowers senators to overcome committee obstruction of their proposals.

Amending Rule XXXI to create a similar mechanism for presidential nominations would empower senators to overcome committee obstruction in the confirmation process. And making the mechanism available only after a specified number of days gives the Judiciary Committee – or other committee of jurisdiction - an opportunity to review presidential nominations and act to report – or not report – the nominee.

The Takeaway

The Senate rules empower its committees to obstruct presidential nominations. Rank-and-file senators have few options to force action on nominees when the committee of jurisdiction refuses to act or is unable to act. Changing the rules to empower individual senators to skip committee consideration of a nominee after a specified number of days would limit the ability of a minority of senators to obstruct the confirmation process.