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Article II, Section 2, of the US Constitution (emphasis added) states:

[The President] 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[.]

Suppose the Senate were to pass a resolution advising the President to appoint a strict "originalist" who has been a long-time member and avid supporter of the Republican Party. To what extent must the President heed this advice?

Taken further, does this mean the Senate can specifically identify who an appointee shall be?

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The President can nominate whomever he wants; the "advice" is formally post-nomination advice (the motion to confirm appointments is a motion "to advise and consent to" the nomination). In any event, "advice" is by definition non-binding; that's why it's not a command.

However, the Senate must consent to the appointment before the officer assumes the office, so pre-nomination advice is relevant. For some nominations (like district judges), the Senators from that state can effectively sink a nomination if they're from the same party as the President and don't like the nominee; that can result in the Senators picking a short list of candidates and the President just picking someone on the list (or asking for a new list, but if he just nominates someone not on the list there's a fair chance they don't get confirmed).

The Senate could decide that they will only confirm one particular person for the post. The President can nominate someone different. That's a political fight to be solved by gamesmanship and negotiation, not something that has a legal resolution.

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The key word is consent. That is the only real power the Senate has. I don't believe there is any formal process for giving advice. What advice that is given is usually informal and through direct contacts, or indirect through the press and other public forums. You could also consider advice to be rejecting candidates in committee, or holding up the nomination. Appointees for all kinds of positions are held up routinely for reasons both serious and petty. But that falls more under consent than advice.

  • This question is asking about the meaning of the word "advice". I understand your answer to be saying "the more important word from a practical perspective is "consent"...", but even if true, that doesn't help answer this particular question. Perhaps you're making the point that the entire phrase "advice and consent" is to be interpreted as one. If you are making that argument, it isn't really clear. – user3851 Feb 19 '16 at 18:47
  • @Dawn The word advice in "advice and consent" doesn't mean anything. It was simply the vocabulary of the era when the Constitution was written. Even then, George Washington didn't think it meant anything, and every President since has agreed. The important part of "advice and consent" is consent. – Mohair Feb 19 '16 at 20:51
  • Then make an argument that what the original meaning of the phrase "advice and consent" is, and that the original meaning is today completely subsumed by the meaning of the word "consent". – user3851 Feb 19 '16 at 20:54
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You misrepresented the Constitution, which actually says:

[The President] shall nominate, and by and with the advice and
consent of the Senate, shall appoint ...
judges of the Supreme Court]

which makes it clear that only the President can initiate an appointment, as he has the exclusive power to nominate a candidate, and that the Senate's role is limited to granting (or withholding) consent to the appointment.

It makes it very clear that the Senate has no power to nominate.

  • But there's nothing saying that the Senate cannot pass resolutions "advising" the president to nominate someone, or even to offer advice privately about choices for nomination. Such advice would not have any effect on the president's ability to choose a nominee, of course, but it could help the president select someone whose nomination would be more likely to be approved. – phoog Nov 28 '18 at 22:51
  • The discussion involving the senators effectively making decisions on an appointment is a) talking about federal district judges, not the Supreme Court, which is the topic of the passage you cute; and b) a reference to what happens in practice, not a strict interpretation of the relevant Constitutional provision. Put another way: if you can choose whatever you'd like to have for dinner tonight, but it's subject to my approval, I therefore have the power to choose what you have for dinner tonight. – A.fm. Nov 29 '18 at 0:25

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