"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 . . ."I like to think that we can understand the meaning of the Constitution in terms of the plain meaning of the words. I have two questions about the plain meaning of these words with regard to the President's power to appoint Judges of the Supreme Court.
First, the President's power to make treaties and to appoint Justices seems to be similar, with one difference. In either case the Senate gives "Advice and Consent." But, the difference is that there is specific Constitutional language that 2/3 of the Senators must concur with respect to Treaties, while that specific language is missing from the clause regarding Judicial appointments. It seems to me that the plain meaning of the words here are that "Advice and Consent" in the Senate requires only a simple majority of Senators to concur regarding Judicial appointments. Does this reading make sense? Is there another plain meaning of these words that makes sense? If so, is there another plain meaning of these words that makes more sense?
Second, I wonder what "Advice and Consent" means? My dictionary defines "advice" this way: "words given or offered as an opinion or recommendation about future action or behavior." Let's emphasize this word as offering an opinion or recommendation. As such, a Senate vote against a Judicial appointment would only be the opinion or recommendation of the Senate. The "advice" of the Senate would seem different from the "approval" of the Senate. My dictionary defines "consent" this way: "express willingness; give permission; agree." Given the meaning of these two words, what does the use of the two words together in the phrase "Advice and Consent" mean? It seems a bit like the two words are at odds with one another. To give an opinion or recommendation about a Judicial nomination doesn't seem easily consistent with giving permission. So, I'm wondering if the plain meaning of these words in combination might be something other than:
"the President nominates and the Senate either confirms the appointment or the appointment is denied."It is not clear to me why these two words in combination clearly have this meaning. Would it make sense to say this phrase means that the Senate reviews Judicial appointments and gives advice to the President, either in favor or against, but then if the President chooses to proceed with the appointment the Senate shall agree or consent? Perhaps this is too far-fetched. But, why include the word "advice" if the meaning of this Presidential power is really:
". . . and he shall nominate, and with the Consent of the Senate, shall appoint . . . .Judges of the supreme Court. . ."We certainly have acted as though these were the words of the Constitution. But these are not the words of the Constitution.