How Can Just One Senator—Like Tuberville Or Sanders—Hold Up A Nomination Process? Because Of This Senate Rule

Topline

As Sen. Tommy Tuberville (R-Ala.) makes headlines for holding up yet another Senate nomination—this time for the replacement of the Marine Corps. leader—many are left wondering how just one senator’s protest can have such influence over the governmental process.

FILE – Sen. Tommy Tuberville, R-Ala., a member of the Senate Armed Services Committee, talks to … [+] reporters at the Capitol in Washington, May 16, 2023. (AP Photo/J. Scott Applewhite, File)

Key Facts

Tuberville is utilizing a senatorial hold—an informal practice in which a senator informs leadership that they don’t want a particular measure or nomination to reach the floor for consideration—to prevent about 250 other military promotions and nominations, including Gen. Eric Smith’s nomination to lead the Marine Corps. from moving forward.

Holds in the Senate first came about as a method senators could use to convey scheduling or policy preferences to leadership, according to the Congressional Research Service, but over time they’ve become like “silent filibusters.”

Holds are only applicable to Senate business with a unanimous consent requirement, but much of Senate business is conducted by unanimous consent, especially routine procedures like selecting a date to debate on the floor or approving a nomination.

A hold cannot completely block a nomination, but it forces Majority Leader Chuck Schumer (D-N.Y.) to follow formal processes on the Senate floor that often move much slower than a decision made by unanimous consent, and because of the current hold ups many routine processes would take months to complete because of the number of blocked nominations.

When holds first started, the Senate allowed for them to be private between a holder and their leader, keeping it anonymous to other senators; however, after holds became more of an ill-spirited tactic, the Senate adopted rule changes allowing hold letters to be made public rather than being treated as private correspondence.

There are a number of different kinds of unofficial holds, according to the Congressional Research Service, including: informational holds requesting a senator be consulted before action is taken on a matter; choke holds that have a filibuster threat and are meant to kill or delay action; blanket holds that are filed against an entire category, like all nominations to an agency or department; Mae West holds are meant to foster negotiation and bargaining; and retaliatory holds that are often political payback.

How Does A Senate Hold End?

Senate holds are an informal practice, meaning the Senate majority leader could choose to bring a matter with a hold to the floor, though that’s uncommon. A senator whose hold is not honored has a myriad of resources they could employ to cause gridlock, according to an article from the Congressional Review Service. Because a hold doesn’t necessarily stop the nomination—but rather slows it and prolongs the approval process—a nomination can go through with a hold if the majority leader chooses to go the procedural route instead of seeking unanimous consent. The Senator who initiates the hold can also end it at any point on their own or through conversation and negotiation with their party leader. Another option would be to pass specific legislation that would allow a way around a hold—for example, CNN reported that Democrats could feasibly try to pass a law allowing military promotions to advance without Senate consent to get around Tuberville’s hold, but it’s not clear that would have the votes to pass.

Crucial Quote

“‘The hold started out as a courtesy for senators who wanted to participate in open debate,’ two Senators wrote in 1997,” according to “‘Holds’ in the Senate,” a paper prepared by the Congressional Research Service. “Since then, ‘it has become a shield for senators who wish to avoid it.’”

Recent Seante Holds Delaying Nominations

Tuberville has placed a hold against all Department of Defense nominations this session in protest of a Pentagon policy that gives service members time off and travel reimbursement if they seek out-of-state abortions.
Sanders has placed a hold against Biden’s nomination to lead the National Institutes of Health, and other health nominees, until he gets the administration’s “comprehensive” plan on how it will lower drug prices.
Last month, Sen. J.D. Vance (R-Ohio) announced he would hold all Biden nominations to the Justice Department in protest of former President Donald Trump’s indictment; the hold will prevent the Senate from quickly approving nominees and there will instead be a floor vote in order for them to be confirmed, Vance’s office said in a statement.
In May 2022, Sen. Rand Paul (R-Ky.) used a hold to delay Senate approval of an additional $40 billion of aid to Ukraine and its allies, saying he wanted language inserted in the bill that would have an inspector general scrutinize the new spending, CBS reported.

Surprising Facts

Secret Senate holds weren’t actually abolished until 2011 when a resolution passed 92-4 in the culmination of a 10 year, bipartisan effort to end secret holds. The updated resolution required public disclosure in The Congressional Record within two legislative days of an objection being made by any senator to Senate action on legislation or nominations.