General Discussion
Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region Forumsadvise and dissent?
What does the phrase "advise and consent" mean in its simplest form?
The founders added the phrase to the constitution to take away some power from the Executive and give it to the Senate.
Article II, Section 2, Clause 2 states: "The President 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."
I do not see anywhere in the Constitution where it says that the Senate has the power to "dissent"??
The compromise in the language of the Constitution was to give the Senate the power to "advise" the President on his nominations to the Supreme Court. Political Parties did not have the power that they have today. The welfare of the nation was paramount to any political Party. It is a different situation today.
However, a rational interpretation would read the Constitution to mean that the Senate has a right to "advise" the President on his nominations and, if they disagree with the nomination, they have the right to "dissent", although the only option in the language of the Constitution is the right to "advise and consent". It says nothing about holding up nominations or not voting on them at all. That is all made up by the politicians for purely political reasons.
elleng
(130,895 posts)not approving a nominee they've considered. There is no explicit 'right' to not consider.
Nowhere does it say that they have the right to not consider.
SickOfTheOnePct
(7,290 posts)An implicit "right to not consider" is there.
kentuck
(111,092 posts)I do not see an "implicit right to not consider"..
Then how would you force them to consider the nominee?
kentuck
(111,092 posts)The President can only point out that their opposition is purely political and there is no precedent for such actions.
SickOfTheOnePct
(7,290 posts)Then they have the implicit right to refuse to consider nominees.
kentuck
(111,092 posts)Senators only have the right to advise and consent. It is not an equal shared power, in my opinion.
SickOfTheOnePct
(7,290 posts)The executive, judicial and legislative branches are co-equal.
kentuck
(111,092 posts)That is reserved for the Executive.
SickOfTheOnePct
(7,290 posts)But that's where it ends for the executive - the nomination. After that, all rights/responsibilities lie with the Senate.
The Senate can't nominate judges or ambassadors, but the President can't appoint them without the Senate.
Co-equal.
kentuck
(111,092 posts)I read it as the President "shall" (required) nominate Supreme Court Justices and the Senate "shall" "advise and consent". That would mean they could "advise" the President to appoint someone else or they could consent to his nominee. I think the "shall" is implicit in the clause for the Senate as well as the President.
SickOfTheOnePct
(7,290 posts)based on verbiage that isn't even in the Constitution.
Nowhere does it say the President "shall nominate" anyone, and nowhere does it say the Senate "shall advise and consent".
kentuck
(111,092 posts)""The President 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, ..."
SickOfTheOnePct
(7,290 posts)It says the President "shall nominate". Now, where does it say that the Senate "shall advise and consent"?
kentuck
(111,092 posts)and is implicit within the same sentence in the same clause.
SickOfTheOnePct
(7,290 posts)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 President shall nominate. If the Senate gives consent, he shall appoint. There is no mandate that the Senate consent, or that they even consider.
kentuck
(111,092 posts)They can all go home and say "fuck you all...we quit!"
SickOfTheOnePct
(7,290 posts)The whole premise of this thread, which you started, is that the Senate must hold hearings and that they must advise and consent.
Having been shown that your premise is incorrect, all of you've got is "So?"
kentuck
(111,092 posts)Sorry.
SickOfTheOnePct
(7,290 posts)I, and others, have shown that you're completely dead wrong in saying that the Senate must advise and consent whenever the President presents a nomination.
kentuck
(111,092 posts)I was trying to stimulate a discussion, not a pissing contest.
raging moderate
(4,305 posts)Thank you. They may have cause to regret their little exercise of race hatred.
PoliticAverse
(26,366 posts)Thus the White House will not be taking the issue to the Supreme Court or try to seat
a justice that doesn't get a hearing.
This is a political issue not a legal one.
kentuck
(111,092 posts)I would read that as required by the Constitution.
SickOfTheOnePct
(7,290 posts)Means just that - they have the power. It doesn't mean they have to do it.
SickOfTheOnePct
(7,290 posts)PoliticAverse
(26,366 posts)what it says.
https://www.law.cornell.edu/constitution/articleii
If the administration really believed the Constitution required the Senate to vote on the issue they'd take
the issue to the Supreme Court for a ruling. They won't because this is a political "do your job" issue not
a Constitutional one.
kentuck
(111,092 posts)SickOfTheOnePct
(7,290 posts)in favor of the Senate.
PoliticAverse
(26,366 posts)SickOfTheOnePct
(7,290 posts)Which is why I contend that an implicit right to refuse consideration of nominees exists.
kentuck
(111,092 posts)They are making rules as they go.
PoliticAverse
(26,366 posts)in any sort of timely manner (although waiting nearly a year would be the longest time for a Supreme Court
nominee).
kentuck
(111,092 posts)but I don't know if any nominee has been held up until the next President is sworn into office?
PoliticAverse
(26,366 posts)but note that the section of the constitution includes also:
some of who didn't receive a vote for a longer time period.
kentuck
(111,092 posts)I don't think that would include Supreme Court Justices?
merrily
(45,251 posts)However, the Constitution deliberately and carefully kept SCOTUS Justices out of the hands of the people, both as to installing them and removing them.
kentuck
(111,092 posts)and should rule in their favor, or else.
SickOfTheOnePct
(7,290 posts)Let's not kid ourselves.
kentuck
(111,092 posts)And needs to be brought into balance. Yes, it is political but that doesn't mean nothing should be done to correct it when it goes too far to the left or too far to the right, as requested by the vote of the people when they vote for their President.
(edited by adding "going" )
SickOfTheOnePct
(7,290 posts)at the makeup of the Supreme Court when Scalia was appointed.
kentuck
(111,092 posts)of the dismantling of the Warren Court, in my opinion.
SickOfTheOnePct
(7,290 posts)the Supreme Court has been right wing ever since Scalia joined, which is what you claimed previously.
kentuck
(111,092 posts)Should I correct it?
SickOfTheOnePct
(7,290 posts)I don't agree that it's a glaring Constitutional issue.
world wide wally
(21,742 posts)last 7 or 8 words of the Second Amendment.
PERIODt!