The Lost Half of Advice and Consent: How Washington Forgot What the Founders Built

There is a word in the Constitution we have quietly erased. It is not an amendment. It is not a court ruling that struck something down. We just stopped using it. And in doing so, we fundamentally altered the balance of power the Founders designed. I am talking about the first half of Article II, Section 2: Advice and Consent. We all know about the consent part. The Senate votes. They say yes or no. The public watches the tally, pundits scream, the president fumes, and eventually someone gets confirmed or does not. That is the theater. That is what passes for constitutional process. But what about the advice? Read the clause again. It does not say the President nominates and the Senate consents. It says the President shall nominate, and by and with the Advice and Consent of the Senate, shall appoint. The word order matters. Advice precedes consent. The Founders envisioned a deliberative partnership: the President proposes, the Senate counsels, and then the Senate consents or withholds. Somewhere along the line, we dropped the first half. And we have been paying for it ever since.

What the Framers Actually Designed

When you read the Federalist Papers, especially Numbers 66 and 76 by Hamilton, plus Madison's notes from the Constitutional Convention, a clear picture emerges. The Senate's role was supposed to be active, not passive. George Mason argued that the Senate's advice would prevent the appointment of unfit characters. James Wilson stressed that the Senate would provide a solemn and public hearing before the nomination was finalized. In other words, the Senate was supposed to be in the room, metaphorically, while the president was still weighing options. The idea was a check against cronyism, against the impulse of favoritism, against appointments made in a closed room with no accountability. The President would consult, the Senate would advise, and only then would a final name go forward for the formal consent vote. Hamilton put it plainly in Federalist 76: the Senate's involvement would be a powerful restraint upon the spirit of favoritism in the President and would prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. The phrase a view to popularity is especially telling. The Founders recognized that presidents might appoint based on what plays well in the polls rather than what serves the nation. The Senate's advice was the antidote. Now ask yourself: when was the last time a president actually consulted the Senate before picking a nominee? When did a sitting senator say, The President asked my opinion on who should fill this vacancy before he made a choice? It almost never happens. And when it does, it is treated as a courtesy, not a constitutional obligation.

The Slow Erosion of a Constitutional Duty

This did not happen overnight. It was a slow, bipartisan decay that accelerated through the 20th century as the administrative state ballooned and the presidency became imperial. In the early Republic, the advice function was real. George Washington actually walked over to the Senate chamber to seek its advice on a treaty. That tradition died within a few years, but the principle lived on for appointments. For most of the 19th century, presidents consulted with home-state senators before making nominations. It was called senatorial courtesy, and while it sometimes produced its own brand of cronyism, it at least preserved the idea that the Senate had a say before the nomination was public. That began to change in the 20th century. As the federal government grew, presidents asserted more control over the executive branch. The Progressive Era and the New Deal shifted power toward the White House, and the Senate's advice function became a nuisance to be managed rather than a partner to be respected. Then came the modern confirmation wars, starting with Robert Bork in 1987, a nomination that was less about advice and more about ideological warfare. Both parties learned the same lesson: treat the process as a battlefield, not a deliberative body. Now we have a system where presidents announce nominations on Twitter, the Senate reacts in fury or triumph, and the advice is reduced to a few closed-door chats with committee chairs who already know which way the vote will go. The actual deliberation happens after the nomination, in hearings designed for television, not truth. This is the opposite of what the Founders intended. They wanted friction before the decision, not after.

A Real-World Example: The Garland-Gorsuch Lesson

Let us look at a concrete case. In 2016, Justice Antonin Scalia died unexpectedly. President Obama nominated Merrick Garland, a well-respected moderate judge. The Republican-led Senate refused to hold hearings, let alone a vote, arguing that the next president should choose. That was a pure consent play: withholding consent to force a change. There was no advice. There was no pre-nomination consultation. There was only a political standoff. Then came President Trump. He nominated Neil Gorsuch. The Senate confirmed him on a near-party-line vote after invoking the nuclear option to eliminate the filibuster for Supreme Court nominees. Again, no real advice. The Senate was a rubber stamp for one party and a brick wall for the other. The irony is that both sides could have benefited from genuine advice. If Obama had consulted with Senate Republicans before naming Garland, testing the waters, hearing their objections, offering alternatives, the outcome might have been different. If Trump had done the same before selecting Gorsuch, the process might have been less toxic. Instead, both presidents treated the Senate as an obstacle or an ally, never as a constitutional co-equal. The result is that every Supreme Court nomination is now a political crisis. The public sees judges not as impartial arbiters but as partisan warriors. The advice function, which was supposed to produce consensus and legitimacy, has been replaced by a zero-sum game.

What We Lost

The loss of the advice function has real consequences, not just for process but for liberty. First, it undermines legitimacy. When a nominee is confirmed with no genuine input from the minority party, half the country feels disenfranchised. The Court's authority depends on public trust, and that trust evaporates when confirmation feels like a power grab. Second, it produces worse outcomes. The President, acting alone, can be captured by his own faction. He may pick a nominee who satisfies the base but lacks the temperament or judgment for the job. The advice of the Senate, a body designed to be slower, more deliberative, more insulated from popular passion, was supposed to catch those mistakes. Without it, we get more Harriet Miers nominations, withdrawn after bipartisan criticism, and more candidates who say one thing in hearings and do another on the bench. Third, it empowers the administrative state. When the advice function collapses, presidents turn to czars and agency heads who do not require Senate confirmation. Why bother with a hard confirmation when you can appoint an unaccountable official through executive action? The erosion of advice and consent fuels the very growth of government that conservatives say they oppose. This is where Hayek's knowledge problem becomes relevant. The President cannot know everything about every potential nominee. He needs the dispersed knowledge of the Senate, the local knowledge, the institutional memory, the political sense that comes from years of dealing with judges and officials. Without that input, appointments become guesswork.

The Objection and the Answer

I can hear the objection: You are arguing for a slower, more cumbersome confirmation process? We already cannot get judges confirmed. This would gridlock everything worse. No. I am arguing for a different process. One that front-loads the deliberation so the back-end does not explode. A Senate that genuinely advises before a nomination is made is far less likely to need to block it after. The knowledge problem applies here: the President does not know what the Senate's concerns are unless he asks. A real advice process would surface objections early, when they can be addressed through consultation or alternative candidates. What we have now is the worst of both worlds: no real advice, but maximal conflict. It is the broken-window fallacy of constitutional interpretation: we break the process, then call it inevitable. Henry Hazlitt, in Economics in One Lesson, taught us to look at the unseen consequences. The seen consequence of restoring advice is that the process takes longer. The unseen consequence is that nominees are better vetted, confirmation battles are less toxic, and the resulting officials have broader legitimacy. The long-run benefits dwarf the short-run costs.

The Originalist Case for Restoration

As Justice Scalia would remind us, textualism means giving every word its full force. Advice is not surplus. It is not decoration. It is a specific constitutional duty. A Senate that never advises but only consents is a Senate that has failed its duty. And let me be clear: this is not a partisan point. Both parties have been guilty. Trump ignored the Senate on several nominations, bypassing the advice process entirely when he thought he could get away with it. Biden has done the same. The Senate under both Republican and Democratic leadership has treated the advice function as an inconvenience. We have all decided that winning is more important than process. But process is what protects liberty. The separation of powers exists precisely because the Founders knew that human beings are fallible and power corrupts. They did not trust the President to pick officials alone. They did not trust the Senate to approve them alone. They built a system of shared responsibility, and we have let half of it atrophy.

What It Means for You

The average American does not think about advice and consent. They see judicial nominees as culture war flashpoints. They see Cabinet confirmations as partisan score-settling. They see dysfunction and assume politics is just broken. But it did not have to be this way. And it does not have to stay this way. Restoring the advice function would require a shift in culture, not just rules. It would require presidents to treat the Senate as a partner, not an obstacle. It would require senators to take advice seriously, not as a prelude to a fight. It would require voters to reward statesmanship over pugilism. That is a tall order. But then, the Founders did not design a system for easy times. They knew that self-government requires virtue. And virtue includes the willingness to listen before you shoot. The next time you hear about a confirmation battle, ask yourself: where was the advice? Did the President consult? Did the Senate counsel? Or did we skip straight to the war? Because the Constitution gave us both. And we are living with the consequences of having forgotten half of it.