ArtII.S2.C2.3.3.1 Nomination

Article II, Section 2, Clause 2:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall 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: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The Constitution appears to distinguish three stages in appointments by the President with the advice and consent of the Senate. The first is the nomination of the candidate by the President alone; the second is the assent of the Senate to the candidate’s appointment; and the third is the final appointment and commissioning of the appointee, by the President. 1

Footnotes

  1.  Marbury v. Madison, 5 U.S. (1 Cr.) 137, 155-56 (1803) (Chief Justice Marshall). Marshall’s statement that the appointment is the act of the President, conflicts with the more generally held and sensible view that when an appointment is made with its consent, the Senate shares the appointing power. 3 J. Story, Commentaries on the Constitution of the United States 1525 (1833); In re Hennen, 38 U.S. (13 Pet.) 230, 259 (1839).