Can the Senate still consider them valid and vote them up or down, even if the new President doesn’t want them? Or do the unfilled appointments just disappear after the new Prez takes the oath of office?
Presidential appointees serve at the pleasure of the president. Generally speaking, once a president leaves office, the appointees are all out of a job, unless the new president reappoints them or asks them to remain at their posts until a new appointee is confirmed.
I think what the OP is asking is, what happens if a President makes an appointment, but the appointee is not confirmed by the time the President leaves office? The appointment stands, and the Senate can still confirm. I’m not certain what happens after that, though. My EWAG is that the new President is not required to give the appointee a commission even if they’re confirmed. He can go and appoint someone new and wait for their confirmation, if he wants. Though that might be viewed as obnoxious. (But what does he care, he was just elected!)
I may be wrong, though.
That’s what I meant, friedo, but I was thinking more about Supreme Court justices and the like. What if there were a vacancy right at the end of Bush’s term, and he apointed someone who was not confirmed as of the new president’s swearing in? Would the appointment be dead right there, or would it still “count,” with the new president unable to grasp it out of the Senate’s hands if they wish to confirm the person?
Now, presumably, the Sentate could refuse to confirm the person, and that would be that. But what if they wanted to confirm the person?
My guess is that the the appointment is dead unless the new president supports it. That is, the president must be constantly “pushing” the the nominee. But I am ignorant, and that is why I asked the question!
An appointment that a particular session of Congress does not act upon is legisltively dead, since each house of Congress adjourns sine die and, byt the terms of the 20th Amendment, their session expires at noon on January 3rd of every other year in any event.
If the Senate fails to act on Mr. Robert’s appointment by January 3rd, 2007, then Mr. Bush - who would still be the President - would have to reappoint him for the next Senate to consider. It has nothing to do with changing Presidents.
But what happens if the President did change in the middle of all this? Nothing.
If Mr. Bush were overcome by remorse for his failure to achieve social security reform, and resign tomorrow, his appointment of Mr. Roberts would remain valid and on the agenda for the Senate to confirm, and if they confirmed him, he’d be a Supreme Court justice.
Don’t tease.
Is there historical precedent? Did Nixon have any appointments (judicial or otherwise) pending at the time of his resignation, and if so were any of them acted upon by the Senate? How about any pending appointments of any presidents who died in office? I would think as a practical matter the Senate would refrain from acting on such appointments should the presidency suddenly become vacant out of deference to the new person entering the office.
Your EWAG is correct. Here is a memorandum summarizing the issue.
As Bricker notes, nominations lapse at sine die adjournment of each session of the Senate, whether a new President takes office or not. (In modern times, the Senate holds one session per year, starting in January and ending late in the year.) However, this is a matter of the Standing Rules of the Senate, not necessarily a constitutional requirement:
President Bush, assuming he finishes his term, will leave office on 1/20/2009. The 106th Congress will take office on 1/3/2009. Bush could therefore resubmit nominations to any pending vacancy between 1/3 and 1/20, even if the Senate lacked time to confirm them. However, if the Senate acts after 1/20, a new President of either party would not be obligated to sign their commissions, and indeed would be justified in indignantly refusing to do so.
The remaining question concerns practice when the President dies or resigns in mid-term. I would imagine that there had to be lower-court nominations pending when Kennedy was assassinated or Nixon resigned. While one imagines that most such nominees would be acceptable to a successor of the same party, one can’t be sure and I don’t know whether the Senate waited for the new President to submit new names or acted on the old nominations. Does anybody know?
Would this be true even regarding a Supreme Court justice?
I believe the President need do nothing. Let’s assume I am standing Secretary of State. Should the current President say nothing, I remain Secretary of State.
Yes, federal judges must be commissioned by the President just like executive officers. (But unlike them, the President can’t fire a judge.)
There is an obscure Supreme Court case that addresses the effect of an outgoing President’s failure to deliver a commission before his successor takes office. Marbury v. Madison or something like that.
Yeah, but in Marbury, didn’t they punt?
(Ha! Lawyer humor!)
Of coure, if the new president didn’t want the Senate acting on a predecessor’s nomination, he could just rescind it immediately. I don’t know what the formal process is, but it is certainly within the presidential power to rescind a nomination.
–Cliffy
So if the Presidency switched hands in the same election that control of the Senate switched hands, the old President and new Senate would have a gap in which they could confirm nominees, right?
For example, I understand the Roberts was nominated by Bush Senior to an appeals court slot, but his nomination was stalled by the Democratic majority in the Senate until Bush’s term ended and Clinton got to make his own appointment to that judgeship. Now suppose that in 1992, as Clinton defeated Bush Sr., the Republicans had won a majority in the Senate. Is there any reason why Bush wouldn’t have been able to submit Roberts name again between 1/3 and 1/20 and have the new Republican majority confirm him?
Theoretically, that could be done. No rule prevents it.
That is certainly true. As one of many examples which could be cited, we had the 2003 withdrawal of the Estrada nomination.
I looked in the CQ Almanac for 1974 and it appears that there was not a mass withdrawal of pending appointments when Nixon resigned. Several judges and officers were nominated by Nixon and confirmed under and commissioned by Ford, including Alan Greenspan, whom Nixon nominated to be Chairman of the Council of Economic Advisers before resigning. So it’s possible for a nomination to remain pending through a change in administrations, although I certainly wouldn’t expect to see it during an ordinary post-election transition.