united-states us-constitution constitutional-law legislature
How much does the President have to take the Senate&#39;s appointment &quot;advice?&quot;
<p><a href="https://www.law.cornell.edu/constitution/articleii#section2" rel="nofollow">Article II, Section 2, of the US Constitution</a> <em>(emphasis added)</em> states:</p>

<blockquote>
  <p>[The President] <strong>by and with the advice</strong> and consent <strong>of the Senate</strong>, <strong>shall</strong> 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[.]  </p>
</blockquote>

<p>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?   </p>

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

<p>The President can nominate whomever he wants; the "advice" is formally <em>post</em>-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. </p>

<p>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 <em>Senators</em> 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). </p>

<p>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. </p>

<p>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. </p>

<p>You misrepresented the Constitution, which <em>actually</em> says:</p>

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

<p>which makes it clear that <em>only</em> 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.</p>

<p>It makes it <em>very</em> clear that the Senate has <strong>no</strong> power to nominate.</p>
