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The constitution introduces the phrase "by and with the advice and consent of the Senate" and clarifies that "consent" means "provided 2/3 of the Senators present concur".

It then uses this phrase again, without repeating (or modifying) the clarification, and both times the intention is to tightly constrain the President's actions, so as to be "with the consent of the Senate". Such usage is a very common "device", with the short phrase now appearing in the clarification's stead, not needing to repeat the entirety of it.

Consequently, the President has the power to: nominate Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States but can only make treaties and turn nominations into appointments [with the advice and consent of the Senate], which means he can only make treaties and turn nominations into appointments [provided 2/3 of the Senators present concur].

How is it possible that a given party seems unable to block any such appointments?

Wasn't this precisely the intent? To ensure that these specifically enumerated positions would compel the nomination of people who would pass this higher bar as properly non-partison selections, to increase the likelihood of appointing excellence?

If not, why call these things out at all? Requiring only a simple majority invites a tyranny thereof, invites factional politics, invites an unconstrained President, the very things the framers were so determined to prevent.

Were they truly this inept?

Or is it we who are failing--we who cannot think, and read, and understand?

For reference-- USCS Const. Art. II, § 2, Cl 2. reads as:

“He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and 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”.

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    The "two thirds" clearly only applies to treaties. – Nate Eldredge Sep 22 '20 at 2:20
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    One could look at confirmation votes in the early days of the Constitution, while the framers were still around. I bet there were some that were confirmed by more than 1/2 but less than 2/3, which should be strong evidence that the traditional interpretation was the intended one, and that yours is not. Whether or not we think the framers were wise to require only a simple majority is outside the scope of this site - it is not for opinions. – Nate Eldredge Sep 25 '20 at 23:05
  • This needs to be rewritten as a question that can be answered. it reads like a statement with a few questions for the purpose of discussion and presenting an opinion. For further guidance on how to ask questions on SE Law please refer to the help center: law.stackexchange.com/help – user1605665 Oct 1 '20 at 5:52
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"two thirds" is not presented as a definition of "advice and consent", it's an additional qualification.

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  • If it were intended your way, a careful writer would have written it differently. These were careful writers. – Jim Sawyer Sep 25 '20 at 9:32
  • I have explained the reasoning behind my interpretation. If you have a different interpretation, it would seem only fair to insist that you explain your reasoning, don't you agree? – Jim Sawyer Sep 26 '20 at 22:10
  • @JimSawyer the care in the writing here is evident. I will explain in an answer. – phoog Sep 26 '20 at 22:37
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"Advice and consent of the senate" is not defined in the Constitution

First, "advice" and "consent" are separate concepts. Since your question is about consent we'll leave that to the side.

"Consent" is and has always been taken to be a simple majority, as that’s what it meant in the British Parliament, as dictated by the rules regarding quorums, voting etc. that the Senate itself sets since the Constitution gives the Senate authority on how to run itself. Therefore, "Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States" are nominated by the President and confirmed by a simple majority.

The requirement for a 2/3 majority is limited to treaties only.

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  • Your first point--taken. I have edited the original post accordingly. – Jim Sawyer Sep 25 '20 at 22:10
  • Your second point is not sound. You are "putting the cart before the horse". You cannot sensibly argue that the intended meaning of "consent" within the Constitution is and has always been taken to be something dictated by the rules of a body that did not yet exist at the time the Constitution was written. The Constitution was written first and is itself the document that defines what "the Senate" is and how it must behave. – Jim Sawyer Sep 26 '20 at 22:22
  • @JimSawyer the Constitution gives the Senate the authority to decide how to run itself. – Dale M Sep 26 '20 at 22:41
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    @JimSawyer "You cannot sensibly argue that the intended meaning of "consent" within the Constitution is and has always been taken to be something dictated by the rules of a body that did not yet exist at the time the Constitution was written": there are many aspects of government function that are implicit in the constitution, and for the most part these come from the longstanding traditions of English law. The requirement for a simple majority to pass laws is not explicit in the constitution, for example. – phoog Sep 26 '20 at 23:06
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In a comment, you wrote

If it were intended your way, a careful writer would have written it differently. These were careful writers.

That is precisely the key to understanding why "advice and consent" does not imply a two-thirds majority.

Why did they not include treaties in the list of other acts in that sentence? It is because the conditions required for making treaties are different.

In fact, treaties are covered in an entirely separate independent clause. (I'm speaking here of clauses in the grammatical sense, where a clause is a component of a sentence, not in the legal drafting sense, where a clause may comprise multiple sentences.)

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur

...and...

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

The separation between "advice and consent" and "provided two thirds of the Senators present concur" also implies that the two concepts are not necessarily synonymous.

Because the power to make treaties and the appointment of officers are set forth in distinct independent clauses, had these careful writers wanted to require the concurrence of two thirds of the senate for appointments, they either would have combined the clauses, or reported the requirement in the clause concerning appointments, or explicitly defined "advice and consent of the senate" somewhere.

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