Cabinet Confirmation Mechanics

I don't usually like to throw questions out to the lazyweb, but this is the first week of classes which is always busy.

So here's my question: the Senate has started a whole round of confirmation hearings for Cabinet and other top appointments by president-elect Barack Obama. But as far as the Constitution is concerned, only the President, not the President-elect, can make nominations to government jobs. The Senate is of course free to hold hearings about whatever it wants, and there is no constitutional requirement for a committee to do anything prior to the full Senate's exercise of its 'advice and consent' power. But I don't see how the full Senate could vote on a nomination without there being an actual official nomination.

Legally, I can see two ways for this to work. Either the incumbent has already made a courtesy nomination, which I think is highly unlikely, or the Senate is front-running on the actual nomination, which will come as soon as Mr. Obama is inaugurated. In the first version, the full Senate can vote any time; in the second version the Senate can't actually vote until January 20, after the nomination officially happens. (There is of course at least one more possibility, which is that the niceties are not being observed. Yet even if there were a transitional statute that applied I don't see how it could trump the Constitutional provisions governing appointments of the leading Officers of the United States.)

NPR, at least, reports that,

Kerry has said he plans to hold a committee vote before week's end, setting up a scenario where the Senate could confirm [Sen.] Clinton before Obama is sworn in Jan. 20, and a new senator named to fill her New York seat.

If that's right, my second scenario is wrong. But then again, maybe that's not right.

Anyone know the actual facts?

This entry was posted in Law: Constitutional Law. Bookmark the permalink.

7 Responses to Cabinet Confirmation Mechanics

  1. Jon Weinberg says:

    This CQ Politics article suggests that the Senate leadership believes that while committee votes on the non-nominations can take place before the inauguration, the actual Senate confirmation votes will have to wait until Jan. 20. (So the answer appears to be that the NPR reporters misspoke.)

  2. Adam says:

    “and he shall nominate, and by and with the advice and consent of the Senate, shall appoint … all other officers of the United States, whose appointments are not herein otherwise provided for…”

    It’s not clear that nomination must come before the advice and consent of the Senate. It seems to me that the Senate could, under that clause, actually advise the President, offering its consent to two or three candidates, and the President could then nominate and appoint one.

  3. jim says:

    Adam has it right. The consent of the Senate is required and one can consent to an anticipated proposition:

    “and I thought well as well him as another and then I asked him with my eyes to ask again yes and then he asked me would I yes to say yes my mountain flower and first I put my arms around him yes and drew him down to me so he could feel my breasts all perfume yes and his heart was going like mad and yes I said yes I will Yes.”

    Of course Obama cannot appoint her until the afternoon of January 20th.

  4. jim says:

    This is one of those cases where the ordinary language we use confuses the issue. We talk of the Senate confirming an appointment, which actually gets it backwards. It isn’t that the President appoints and then the Senate confirms. The Senate must consent prior to the President appointing. Ordinarily the Senate waits for the President to nominate before taking action to consent. But there’s no requirement that it do so.

  5. BrianZ says:

    Slate has an article today. Committees will make recommendations before the inauguration, but the Senate as a whole will not vote until sometime after noon on Tuesday.

  6. Jerry says:

    Doing some research and found this somewhat dated thread.

    Question: If a President is re-elected, does he carry his Cabinet into the 2nd term without further confirmation?
    Or does the new Senate need to reconfirm them?

    • By long tradition, they continue to serve until they resign or are fired. This is true even if the President changes, with or without election. (E.g. Johnson taking office after JFK was assassinated.)

Leave a Reply

Your email address will not be published. Required fields are marked *