As we observed in our discussion of the treaty power, “advice and consent” was familiar to the Framers. They were keenly aware of the increasingly important role that Parliament came to play in the 17th Century, an influence that was secured through its capacity to advise and consent on legislation. The Framers’ decision to include the Senate in the Appointment Clause, signified an important limitation on the President’s role and authority. As with presidential proposal of treaties, a presidential nomination, exercised wholly within his exclusive authority to nominate, at least in a formal manner, would be meaningless, unless it won the support of the Senate. If the Senate’s role in treaty making was legislative in character, its role in the appointment power was characteristic of a council. The Senate’s role in making treaties required its involvement in foreign policy decisions and negotiations. The Senate’s advisory power was more pronounced in the making of treaties than its role in the appointment process.
In the case of appointments, the President is given the initiative to make nominations, a constitutional ignition key not granted to the President in treaty making. But the Senate’s advice, with respect to appointments, loses some of its legislative character. The Senate does not share a deliberative and policy making power with the President with respect to nominations, so much as it exercises the advisory capacity of an executive council.
Let us focus on the Framers’ careful use of language with respect to the structure of the Treaty Clause and the Appointment Clause, to identify the respective roles of the President and Senate, their respective powers and responsibilities; indeed, let us consider their drafting ability to draw distinctions. The drafters were careful to create an independent executive function, as when they provided in the Appointment Clause, that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors.” If the Framers had wished to confer upon the President an exclusive authority to negotiate treaties, they easily could have provided that “he shall negotiate, and by and with the Advice and Consent of the Senate, make treaties.” The carefully phrased section vests in the President an absolute right to nominate ambassadors, and the Senate can only offer its advice and consent to the appointment of a nominee. The Senate has no constitutional authority to interfere with the President’s power to nominate. But the language of the Treaty Clause is wholly different. In that provision, the words, “by and with the advice and consent of the Senate,” follow the words, “shall have power.” Thus, the “advice and consent” phrase is inextricably linked to the “power” conferred on the President, which is to “make treaties,” and it applies throughout the entire process of treaty making. In matters of treaty making, the Senate’s role in granting advice and consent in more expansive than it is with respect to appointments. The formal nature and language of the two-pronged phase—advice and consent—really limits the Senate to granting its consent to presidential nominations. As it happened, however, that formal textual distinction soon gave way to various policy and political concerns, not to mention partisan pressures in the First Congress.
Nonetheless, the formalistic configuration and implications of a secondary role for the Senate was certainly how the appointment power was understood by Alexander Hamilton, as he explained it in Federalist No. 66. There, Hamilton discussed the roles of the President in making nominations and the Senate in confirming or rejecting those nominations. Hamilton extolled the virtues of the formal division of labor: “Every advantage to be expected from such an arrangement would in substance be derived from the power of nomination, which is proposed to be conferred upon [the President] . . . . In the act of nomination, his judgment alone would be exercised . . . .” He added: “There will, of course, be no exertion of choice on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves choose—they can only ratify or reject the choice of the President.”
Hamilton was clearly representing the matured conclusions of the Constitutional Convention. Chief Justice John Marshall, in the seminal case of Marbury v. Madison (1803), affirmed Hamilton’s teaching and called the nomination process the “sole act of the President” and “completely voluntary.” While it is true, of course, that only the President can nominate ambassadors, judges and officers, making the power to nominate a plenary presidential power, presidents from the time of George Washington sought the advice of senators on nominations. It bears reminder that the mere act of executive solicitation of advice does not constitute a violation of the Constitution or a surrender of the nominating power. It reflects, rather, the wisdom of executive consultation with Senators who, after all, would have the authority to confirm or reject presidential nominees. From the beginning, the Senate decided to assert itself as a partner in the appointment process. When President Washington nominated Benjamin Fishbourn to be naval officer for the port of Savannah, Georgia, the two Senators from that state objected and the Senate rejected Fishbourn’s appointment. The episode set a precedent: approval by the Senators of a state was necessary when a nominee’s work would occur in that state. Otherwise, the Senate would reject the presidential nomination. In time, this practice became known as senatorial courtesy. With the emergence of political parties, that courtesy extended only to Senators of the President’s party. President Theodore Roosevelt acknowledged the influence of the Senate: “The Senators and Congressmen shall ordinarily name the man, but I shall name the standard; and the men have to come up to it.” The influence proved to be sweeping, as the decades passed. When Senator John Warner presented three names to the Bush Administration in 1989 for a vacant federal judgeship in Virginia’s Western District, plus two names for a vacancy in the Eastern District, a newspaper headline declared: “Warner nominates 5 for judgeships.” The appointment power seems to have been turned on its head. The reversal of roles—senatorial nomination and presidential consent—marked a changing trajectory. Presidents might reject senatorial recommendations, and ask for names more acceptable, but the Senate had asserted a lead, rather than a secondary, role.