Q&A of the Day – The Senate Hearing Advice & Consent Process
Each day I feature a listener question sent by one of these methods.
Email: brianmudd@iheartmedia.com
Social: @brianmuddradio
iHeartRadio: Use the Talkback feature – the microphone button on our station’s page in the iHeart app.
Today’s Entry: Submitted via talkback asking about the Senate hearing confirmation process.
Bottom Line: Entering this week President Trump has had 16 of his 22 cabinet positions requiring senate confirmation confirmed. That includes every nominee that’s come up for a vote. At this same stage of his presidency eight years ago Trump had only six of his nominees confirmed. The big name that’s set to come before the senate this week – is the lone remaining controversial nominee, Kash Patel for FBI Director. The focus of the speed with which Trump’s nominees have cleared the senate, in addition to the interest in the president’s cabinet nominees, is the greatest I’ve seen during my 27 years of covering this professionally continues to lead to excellent questions like today’s.
Most who’re interested in this topic are familiar with the Senate’s constitutionally mandated “advice and consent role”. So, about that. Let’s look at Article 2 Section 2 of the Constitution which is where we find this constitutional mandate as it contains the answer to today’s question within it. As what’s known as the Appointments Clause reads:
- ...he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
There are two key cogs in the puzzle that you may have noticed. The Clause is only specific regarding two types of presidential appointments. Ambassadors and Supreme Court Justices. Of course, at the time of our founding, we didn’t have many of the departments and thus cabinet officials, a la FBI Director that we have today. The current cabinet positions requiring advice and consent have largely been determined through the courts with the Supreme Court commonly having been the arbiter of what positions arise to the level of requiring senate confirmation. Also, you may have noticed that there wasn’t a stated vetting process outlined for the process under which the senate is to provide advice and consent – just that they were to do so.
The current incarnation of the senate’s advice and consent process is a result of senate rules and procedures as opposed to a constitutional mandate. While the senate has performed its constitutionally mandated advice and consent role starting with George Washington’s administration – we didn’t have a committee hearing in the senate to consider a nominee until the 1830’s. It wasn’t until 1868 that the “committees” process, the current process, was put into place. It was through those senate rules that the senate believed that rather than holding up all of the senate’s business anytime there was an advice and consent process that needed to proceed – committees with subject matter experts would handling the vetting and then issue a recommendation for the full senate to consider upon that process. That’s the process that’s known as voting a nominee out of committee (which is a non-binding vote – a candidate who receives a thumbs down from a committee may still be confirmed provided there’s enough support within the full senate).
At first the senate committees didn’t require interviews for all nominees, in time that became standard operating procedure, and these days those have become made for TV hearings. This takes us full circle back to your question.
Due to the advice and consent process being determined through senate rules as opposed to constitutional mandate, the senate chooses whether senators must be present or not during hearings. The answer is that senate rules don’t mandate participation at hearings by its members. With that said, if only due to optics if for no other reason, absences by committee members during hearings rarely occur.