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How the Senate Considers Presidential Nominations

How the Senate Considers Presidential Nominations

Rule XXXI governs the Senate’s confirmation process for all presidential nominations (executive-branch nominations and judicial nominations). It 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.” After a committee’s members have completed their consideration of a nominee, they may vote to place his or her nomination onto the Senate’s Executive Calendar. The Executive Calendar is the list of nominations and treaties that are eligible to be considered during Executive Session. Executive Session refers to the Senate’s procedural posture when it considers executive business (i.e., international treaties and presidential nominations. (Legislative Session refers to the Senate’s posture when it considers legislative business.)

 The Motion to Proceed

Once a nomination is on the Executive Calendar, any senator (not just the majority leader) may offer a motion to proceed to its consideration. According to the Senate’s precedents, “A motion to proceed to the consideration of executive business is in order at any time.” The motion to proceed to executive business is non-debatable (i.e., senators can’t filibuster it). Consequently, the Senate votes on a motion to proceed to the consideration of a nomination as soon as a senator makes it. By extension, no one senator, or group of senators representing less than a majority of the institution, can object to, or otherwise prevent, its members from debating a nomination on the Senate floor.

Cloture

Rule XXII empowers a three-fifths majority (typically 60) to end floor debate on a nomination by invoking cloture. In the past, a two-fifths minority (typically 41) could block cloture (i.e., prolong debate or filibuster). Democrats used the nuclear option in 2013 to lower the threshold for invoking cloture on all nominations (other than for the Supreme Court) from a three-fifths majority to a "majority vote." Republicans likewise used the nuclear option in 2017 to lower the threshold for invoking cloture on Supreme Court nominations from a three-fifths majority to a simple-majority vote.

Post-Cloture Time

Rule XXII governs the Senate's consideration of a nomination after a majority of its members vote to end debate on it. It stipulates that the nomination remains before the Senate “to the exclusion of all other business until disposed of.” The rule limits post-cloture debate time to no more than thirty hours and specifies that “no senator shall be entitled to speak in all more than one hour on … the matter pending before the Senate” during that period. The rule stipulates that “it shall be the duty of the Presiding Officer to keep the time of each Senator who speaks.” 

Rule XXII also prohibits dilatory motions during post-cloture debate time and empowers the Presiding Officer to decide procedural questions without discussion. At the end of thirty hours (or sooner if no senator who wants to speak, and can speak, seeks recognition), the Senate proceeds to an up-or-down vote under Rule XXXI to the following question:

Will the Senate advise and consent to this nomination?
— Senate Rule XXXI

Post-Cloture Time In Review

The provisions of Rule XXII governing post-cloture time are as follows: Once the Senate votes to end debate on a nomination, it remains before the Senate “to the exclusion of all other business until disposed of.” Debate time is limited to no more than 30 hours (ceiling not a floor). Rule XXII also stipulates that “no senator shall be entitled to speak in all more than one hour on … the matter pending before the Senate” during that period. Note: Rule XXII does not require post-cloture time to last for 30 hours; a confirmation vote can occur earlier if no senator wants to speak and is allowed to do so under the rule.

The Senate’s Strange Week

The Senate’s Strange Week

Standing Orders

Standing Orders