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The Constitution says that Presidential appointments (e.g. Cabinet members, federal judges, SCOTUS Justices) are made with the advice and consent of the Senate. I've seen many hearings and votes on approving such nominations -- this is "consent". Are there examples of the Senate providing official advice to the President on who to nominate?

I imagine that he can contact anyone he wants to discuss potential nominations, so why would this need to be enumerated in the Constitution? So I'm asking if POTUS receives advice from Senate through a formal process, not senators taking it upon themselves to publish their opinions (traditionally in newspaper op-eds, nowadays more likely on Twitter).

Or did "advice and consent" mean something else to the framers in this context?

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    Interesting question! These days, or pre-twitter? I think the latter would be much more interesting, and I assume "official advice" excludes social and conventional/traditional media altogether.
    – uhoh
    Aug 4 at 1:44
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    @uhoh I'm thinking about a formal process where POTUS seeks and receives advice from the Senate. Anyone can tweet and POTUS can choose whether to read them or not.
    – Barmar
    Aug 4 at 2:11

2 Answers 2

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The term "advice and consent" is a formalism derived from the time of the British Empire. In keeping with that tradition, when the Senate puts a nomination to a vote, the question is "Will the Senate advise and consent to the [last name of nominee] nomination?"

There were only two cases where the president directly approached the Senate concerning advice and consent. Both cases involved treaties.

When President George Washington visited the Senate Chamber in August 1789 to seek advice and consent on negotiating a treaty with Indian tribes, he became frustrated when the senators referred his questions to committee for further discussion. Neither Washington nor any of his successors would again confer with the Senate in person. It would take 130 years before another president of the United States would personally deliver a treaty to the Senate. On July 10, 1919, Woodrow Wilson asked for a quick consent to the Treaty of Versailles. [Advice and Consent of the Senate]

Since Washington, no president has sought advice from the full Senate; thus, rendering any formal use of the "advice" part of "advice and consent" meaningless. Rather, the president or staff may consult with a limited number senators.

The President would prefer a smooth and fast confirmation process, so he [sic] may decide to consult with Senators prior to choosing a nominee. Senators most likely to be consulted, typically by White House congressional relations staff, are Senators from a nominee’s home state, leaders of the committee of jurisdiction, and leaders of the President’s party in the Senate. Senators of the President’s party are sometimes invited to express opinions or even propose candidates for federal appointments in their own states. There is a long-standing custom of “senatorial courtesy,” whereby the Senate will sometimes decline to proceed on a nomination if a home-state Senator expresses opposition. Positions subject to senatorial courtesy include U.S. attorneys, U.S. marshals, and U.S. district judges. [Senate Consideration of Presidential Nominations: Committee and Floor Procedure]

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The word "advice" in "by and with the Advice and Consent of the Senate" doesn't necessarily have its common modern meaning.

Other definitions (from Oxford English Dictionary) which were attested at the time include

The action of considering what action to take, what opinion to adopt, etc.; deliberation, reflection, thought

in which case, the Senate is exhorted to properly consider the matter before consenting;

A decision formally taken by a deliberative body

in which case, the means by which the Senate expresses its consent is a formal motion;

Information conveyed or imparted [...] Esp. in commercial and legal contexts: formal notification or notice; a document conveying this.

in which case, the President may make the appointment upon receiving formal notice of the Senate's approval — or perhaps the Senate is advised of the proposed appointment, and then consents to it: using verbal nouns allows flip-flopping like that.

That last definition is still current today in very limited contexts; for example, someone making a stock trade through a broker will receive "advice" that their trade has completed.

It's difficult to tell which of those shades of meaning might have been intended, and in any case it doesn't make a whole lot of difference. There's plenty of "advice" flying around whatever you do, and the only part that's really controlling is the "consent", which does come in the form of a formal motion after deliberation.

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