Advice And Consent

Advice and Consent in the United States

Power given the United States Senate to approve treaties and federal appointments. The advice and consent power is conveyed by language in Article II, Section 2, and besides treaties, applies to presidential nominations for “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.” Senate consent on treaties requires a two-thirds vote. Confirmation of appointments occurs by simple majority. The Senate’s advice and consent role emerged from the Constitutional Convention as a compromise between those who favored executive appointment and those who advocated selection by Congress. Like many of the other compromises struck at the convention, advice and consent was grounded in the checks and balances concept. However, the language of compromise did not resolve all the questions about federal judicial selection. Many argued that judicial appointment was fundamentally a presidential prerogative with the Senate’s role a mere formality. The process has been highly political from the outset, and often the preferences of the nominating president and the Senate have not coincided. As a result, almost 25 percent of the nominations for the Supreme Court have not been confirmed by the Senate. Advice and consent allows the Senate to assert political power over the president, but the power is wholly negative and rejection of a presidential nominee does not permit the Senate to propose an alternative.

See Also

Executive Appointment (Judicial Personnel issue); senate Judiciary (Judicial Personnel issue) committee, 1 15; Senatorial Courtesy (Judicial Personnel issue).

Analysis and Relevance

The advice and consent language of Article II explicitly governs Supreme Court nominees. The Constitution establishes no other federal courts. Rather, it leaves the establishment of inferior federal courts to Congress. This raises questions about whether the advice and consent provisions apply to nominees for those judgeships. Over the years, several practices have developed with respect to nominees for those courts. The most important is senatorial courtesy. The practice applies to nominees for any federal positions in a particular state and requires the president to confer with senators of his or her party from that state before making any nomination. What this normally means is that the Senate member(s) will actually recommend one or more specific names to the president. Failure of the president to accept and appoint such nominees will bring about defeat of the nomination. Senatorial courtesy thus transfers selection prerogatives for particular offices, including U.S. District Court judgeships, from the executive to members of the Senate. The Senate consents or not by a vote of the entire body. The key preliminary work is done by the Senate Judiciary (U.S.) Committee, which gathers information, conducts hearings, and ultimately recommends confirmation or rejection to the Senate. Typically, the committee’s recommendation is upheld.

Notes and References

  1. Definition of Advice and Consent from the American Law Dictionary, 1991, California

Advice and Consent in the United States

Advice and Consent

United States Constitution

According to theEncyclopedia of the American Constitution, about its article titled 678 ADVICE AND CONSENTUnder Article II, section 2, of the Constitution, the President’s powers to make treaties and to appoint important public officials are to be exercised “by and with the advice and consent of the senate.”The formula “advice and consent” is an ancient one. It was used in British and
(read more about Constitutional law entries here).

Some Constitutional Law Popular Entries

Concept of Advice and Consent

In the U.S., in the context of Judiciary power and branch, Advice and Consent has the following meaning: The Constitution (Article III, Sec. 2) says that the president “shall nominate, and by and with the advice and consent of the Senate, shall appoint 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.” Thus, a president nominates a judge, but must win the consent of the Senate to confirm the appointment. Senate rules determine what constitutes consent; advice is not readily defined. (Source of this definition of Advice and Consent : University of Texas)

Advice and Consent

Concept of Advice and Consent

In the U.S., in the context of the U.S. Congress (Senate and House of Representatives), Advice and Consent has the following meaning: A constitutional phrase (in Article II) requiring that the President seek the “advice and consent of the Senate” for treaty ratification (by two-thirds vote) and for confirmation of his appointees. (Source of this definition of Advice and Consent : University of Texas)

Advice and Consent

Advice and Consent (in Politics)

Related to political science, the following is a definition of Advice and Consent in the U.S. practice of politics: Under Article II of the United States Constitution, presidential nominations for executive and judicial posts take effect only when confirmed by the U.S. Senate. In addition, international treaties become effective only when the U.S. Senate approves them by a two-thirds vote.

Resources

See Also

  • Congress
  • Senate
  • House of Representatives

Advice and Consent (in Politics)

Related to political science, the following is a definition of Advice and Consent in the U.S. practice of politics: Under Article II of the United States Constitution, presidential nominations for executive and judicial posts take effect only when confirmed by the U.S. Senate. In addition, international treaties become effective only when the U.S. Senate approves them by a two-thirds vote.

Resources

See Also

  • Judiciary Power
  • Judiciary Branch

Advice And Consent: Open and Free Legal Research of US Law

Federal Primary Materials

The U.S. federal government system consists of executive, legislative, and judicial branches, each of which creates information that can be the subject of legal research about Advice And Consent. This part provides references, in relation to Advice And Consent, to the legislative process, the federal judiciary, and the primary sources of federal law (cases, statutes, and regulations).

Federal primary materials about Advice And Consent by content types:

Laws and Regulations

US Constitution
Federal Statutory Codes and Legislation

Federal Case Law and Court Materials

U.S. Courts of Appeals
United States courts of appeals, inclouding bankruptcy courts and bankcruptcy appellate panels:

Federal Administrative Materials and Resources

Presidential Materials

Materials that emanate from the President’s lawmaking function include executive orders for officers in departments and agencies and proclamations for announcing ceremonial or commemorative policies. Presidential materials available include:

Executive Materials

Federal Legislative History Materials

Legislative history traces the legislative process of a particular bill (about Advice And Consent and other subjects) for the main purpose of determining the legislators’ intent behind the enactment of a law to explain or clarify ambiguities in the language or the perceived meaning of that law (about Advice And Consent or other topics), or locating the current status of a bill and monitoring its progress.

State Administrative Materials and Resources

State regulations are rules and procedures promulgated by state agencies (which may apply to Advice And Consent and other topics); they are a binding source of law. In addition to promulgating regulations, state administrative boards and agencies often have judicial or quasi-judicial authority and may issue administrative decisions affecting Advice And Consent. Finding these decisions can be challenging. In many cases, researchers about Advice And Consent should check state agency web sites for their regulations, decisions, forms, and other information of interest.

State rules and regulations are found in codes of regulations and administrative codes (official compilation of all rules and regulations, organized by subject matter). Search here:

State opinions of the Attorney General (official written advisory opinions on issues of state law related to Advice And Consent when formerly requested by a designated government officer):

Tools and Forms

Law in Other Regions

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