The framers of the Constitution granted the Senate and the president shared power to appoint judges and civil officers. That shared power remains in place, but the way in which the Senate has exercised that power has changed over the course of its history.
In its first decade, the Senate established the practice of senatorial courtesy, in which senators expected to be consulted on all nominees to federal posts within their states. This influence over filling federal jobs empowered senators, and many became leaders of the political parties that emerged in the early 19th century. By the late 19th century, however, presidents and senators began to clash over control of these lower level positions, prompting some to call for reform of the nomination process. Reformers who distrusted the power of political parties sought to reduce the number of positions subject to political patronage and the advice and consent of the Senate, pushing instead for legislation expanding the professional civil service. Despite these efforts, as the federal government grew in size in the 20th century, the number of appointments subject to Senate confirmation continued to grow until the 1980s, when Congress passed legislation that has gradually reduced the number of positions requiring confirmation.
The Senate has typically granted presidents a great deal of deference in selecting members of their cabinets. The overwhelming majority of cabinet nominations have been confirmed quickly with little debate and often with simple voice votes. Nevertheless, political and partisan conflicts between the president and senators have at times produced dramatic fights over cabinet nominees and led to their ultimate withdrawal or rejection. For example, when opponents of President Andrew Jackson gained a Senate majority in 1833, the Senate rejected Jackson's choice for secretary of the treasury, Roger B. Taney. When Vice President John Tyler became president in 1841 upon the death of William Henry Harrison, he clashed with Senate Whigs, who rejected Tyler's nominees to head the Treasury, Navy, and War Departments.
On three occasions in the 20th century the Senate formally rejected proposed cabinet officers. In 1925 a coalition of Senate Democrats and progressive Republicans twice defeated the nomination of Charles B. Warren to be attorney general because of his ties to the Sugar Trust. On June 19, 1959, by a dramatic 46 to 49 roll-call vote, the Senate rejected President Dwight Eisenhower's nomination of Admiral Lewis Strauss to be secretary of commerce. Three decades passed before another cabinet nominee suffered the same fate. Former senator John Tower (R-TX) faced difficult questions from the Armed Services Committee about his character, including his abuse of alcohol and financial dealings with defense contractors. After one of the most rancorous debates in modern times, the Senate voted to reject Tower's nomination by a largely party-line vote of 47 to 53. Not only did Tower become the first nominee of a new president's initial cabinet ever to be rejected, but also the first former senator to be turned down by his Senate colleagues for a cabinet post. Closer scrutiny by the Senate of cabinet nominees in the late 20th and early 21st centuries has resulted in some nominations being withdrawn before formal action was taken by the Senate.
While the Constitution established the Senate's role in confirming executive appointments, it was silent on the question of who had the power to remove civil officers. Executive branch appointments customarily end with the departure of the president who made them, except for those independent agencies whose officials have fixed terms. In the years following the Civil War, Republicans in the Senate sought to weaken President Andrew Johnson's power over the executive branch by making it illegal for him to remove cabinet officers without Senate approval. Johnson's flouting of this law, the Tenure of Office Act, became the catalyst for House impeachment articles in 1868.
The role of Senate committees in scrutinizing nominees grew in the 20th century. Before the 1860s, the Senate considered most nominations without referring them to a committee for review or investigation. In 1868 the Senate revised its rules to require the referral of nominations to "appropriate committees." Those committees conducted in-depth review of nominees only on rare occasions, however, such as when they received allegations of wrongdoing on the part of the nominee. Starting in the middle of the 20th century, committees began routinely holding public hearings and required nominees to appear in person. Committees have the option of reporting a nominee to the full Senate with a recommendation to approve ("reported favorably"); with a recommendation to not approve ("reported adversely"); or with no recommendation. Reporting adversely—sometimes because senatorial courtesy was not observed—has been rare. Since the 1970s, committees have on occasion, though still infrequently, voted not to report a nominee to the full Senate, effectively killing the nomination.
Presidents have occasionally circumvented the confirmation process by making recess appointments when the Senate is in adjournment between sessions, or in recess within a session. As provided by the Constitution, such appointments expire at the end of the following congressional session, but may expire earlier in certain specified circumstances. A 2014 Supreme Court decision (NLRB v. Canning) limited the power of the president to fill positions without Senate approval during short recesses.
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