Toward the Framers' Understanding of Advice and Consent: An Historical and Textual Inquiry

Abstract

Some proponents of current judicial nominees, including President Bush himself, suggest that the Senate is obligated to act on judicial nominations, either confirming them or explicitly rejecting them. In this essay, I consider whether the Framers would agree with such an assertion (leaving aside the question of whether the Framers' understanding of "advice and consent" comports with the objective "original meaning" of "advice and consent"). My analysis focuses primarily on two long-overlooked pieces of evidence: First, I consider the actual practice of "advice and consent" in the Commonwealth of Massachusetts (the example cited by Nathaniel Gorham, the original proponent of "advice and consent," at the Constitutional Convention), by examining Massachusetts state records from the 1780s. Second, I look for insight into "advice and consent" by considering James Madison's failed alternative proposal, the discretionary Senate majority veto. Both of these inquiries suggest the same conclusion: "Advice and consent," as likely understood by the Framers, did not include an implicit Senate obligation to act on judicial nominations.

Keywords: Advice, consent, framers, judicial, nominations, senate, judiciary, Hamilton, Madison, constitution, textualism, originalism, history

JEL Classification: K19