Advice and Consent

[Earl_of_Sandwhich]

On the thread about whether President Nixon should have been buried with full honors, the laws regarding of “advice and consent” came up. We’ve all heard this term in relation to Presidential appointments. Of, the President needs the consent of the Senate (and sometimes the House) when making appointments; if they don’t like the person, he doesn’t get the job.
But what is “advice” in this context? Is this just legal jargon, like “cruel and unusual,” or “arbitrary and capricious,” or has the Senate ever given the President advice regarding an appointee?

[Earl_of_Sandwhich]

What I mean is, what is this “advice” that’s referred to? Is it of the Dear Abby variety?
“Sure, this guy can be in your Cabinet, but make sure to keep an eye on him.”

[brianmelendez]

The term “advice and consent” appears both with respect to appointments to office, and to making treaties:

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.

U.S. Const., art. I, § 2. The Framers probably intended that “advice” and “consent” mean two distinct things; some early writers describe the Senate as an “executive council” for advising the President about treaties and appointments. But in practice, “advice and consent” is nowadays a single indivisible process. This fact results largely from an unsuccessful attempt by President Washington at consulting the Senate before making a treaty:

August, 1789
The Senate Irritates President George Washington

The Senate spent most of its first year setting precedents. During the month of August 1789, it established two precedents that particularly irritated President George Washington.

. . . .

Three weeks later, on August 22, 1789, President Washington visited the Senate to receive its advice and consent for an Indian treaty. He occupied the presiding officer’s chair while John Adams, then Vice President and therefore President of the Senate, sat at the desk assigned to the Senate’s secretary. Intimidated by Washington’s presence, senators found it difficult to concentrate on the treaty’s provisions as Vice President Adams read them aloud. After hearing the contents of several supporting documents, members decided they needed more time. An angry president spoke for the first time during the proceedings: “This defeats every purpose of my being here!” Although he returned two days later to observe additional debate and the treaty’s approval, he conducted all further treaty business with the Senate in writing.

The Senate likewise declined Washington’s invitation of seeking further information from the President before rejecting a nomination:

On August 5, for the first time, the Senate refused to confirm a presidential appointee. Ignoring the budding concept of “senatorial courtesy,” President George Washington had nominated Benjamin Fishbourn to the post of Naval Officer for the Port of Savannah without clearing his choice with Georgia’s two senators. Favoring another candidate who was a member of his political circle, Senator James Gunn promptly engineered Fishbourn’s rejection. Two days later, the president conveyed his irritation to the Senate. “Permit me to submit to your consideration whether on occasions where the propriety of Nominations appear questionable to you, it would not be expedient to communicate that circumstance to me, and thereby avail yourselves of the information which led me to make them, and which I would with pleasure lay before you.” The president then nominated a candidate acceptable to Senator Gunn.

From late in the eighteenth century until the early 1930s, senators occasionally derailed nominations for positions wholly within their states simply by proclaiming them “personally obnoxious.” No further explanation was required or expected.

There is one area where the Senate gives “advice” of a sort before a presidential nomination: in the case of federal district judges (and occasionally other appointees whose purview falls within a single state). Customarily, the President exercises his power of nominating a district judge on the advice of the senator or senators of the President’s party from that state. But this “advice,” which is usually tantamount to controlling the appointment, is parceled out among the senators and never exercised by the Senate as a body. And there is no analogous process in the case of appellate judges, although the President may informally consult senators from the circuit to whose court the judge is being appointed who serve on the Judiciary Committee.

[brianmelendez]

*Originally posted by Earl of Sandwhich *
**What I mean is, what is this “advice” that’s referred to? Is it of the Dear Abby variety?
“Sure, this guy can be in your Cabinet, but make sure to keep an eye on him.” **

Sometimes, although only informally. President G.H.W. Bush tried negotiating with the Senate in 1989 over the floundering nomination of Senator John Tower to be Secretary of Defense, offering at one point to arrange for a powerful deputy within the department who would counterbalance Tower’s hawkish tendencies and “keep an eye on him.” Tower’s nomination was eventually withdrawn over his alleged drinking and womanizing.

There is an excellent guide to the process of nominating and confirming appointees at A Survivor’s Guide for Presidential Nominees. It contains an appendix, Advise and Consent— and Rejections, that chronicles “the tug of war between chief executives and senators over who should serve in the Cabinet or on the Supreme Court.”

[Cliffy]

As the above posters have noted, the “advice” part of adivce and consent is alive and well, it’s just informal now and backed up by the power of the Chamber to withhold the consent part.

–Cliffy