Is the Senate More Like Ward Cleaver or More Like Tony Soprano?

Andrew McCarthy hits on a major faultline in the Democrats' argument that the advice and consent clause entitles them to prior consultation and prior veto of the President's appointments:

Nor need we content ourselves with such linguistic deductions about what the framers must have intended. As Mark Levin has recently pointed out in his bestselling book, Men in Black (188-89), Hamilton made it abundantly clear. In Federalist No. 66, he flatly asserted: "It will be the office of the President to nominate, and, with the advice and consent of the senate, to appoint. 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 he may have made." (Emphasis added.)

In Federalist No. 76, moreover, Hamilton offered an extensive explanation of the rationale, precluding any suggestion of a senate role in nominations. The framers believed that reposing this power in the "sole and undivided responsibility of" a single official, the president, would "naturally beget a livelier sense of duty and a more exact regard for reputation" than could be achieved were the decision left to a committee. For them, a committee (such as the one Senator Schumer suggests) would only serve to multiply the number of "personal considerations" (as opposed to considerations of competence and fitness) that might result in poor choices.

Keeping with this theme of minimizing personal considerations, Hamilton also argued that because the power to nominate would be vested in the president alone, and because the senate would be limited to the power to overrule once the nomination was made, senators would realize that all they could achieve by overruling was yet another candidate of the president's unilateral choosing. The idea — which has rich resonance today — was precisely to discourage the unreasonable withholding of consent, since the senators "could not assure themselves," Hamilton wrote, "that the person they might wish would be brought forward by a second or by any subsequent nomination."

Simply put, advice is something one can take or leave without dire consequences, of the sort Ward Cleaver gives, not Tony Soprano.