All that proves is that the Constitution itself doesn't mandate a supermajority in this instance. It doesn't prove that Senate rules can't establish a supermajority.
Once again, there is no "if", no "provided". The Constitution does not say "he shall nominate, and 'if' the Senate gives Advice and Consent...".
It says he shall appoint "with" their advice and consent. That means their advice and consent (consent, specifically) is the condition that needs to be met in order for him to make the appointment. If he has it, he shall appoint. If he doesn't, he shall not appoint. There's no "shall" directed towards the Senate, only the President.
If the "by and with" part constitutes a command to the Senate, than that means the Senate is commanded to consent to the nomination, which is absurd.
If The Senate says Yes, the President can appoint the nominee to the position.
If the Senate says Yes, he must appoint the nominee to the position. You're shifting the imperative from the President, where the language clearly indicates it belongs, to the Senate, where no express command is given to them.
inquest - All that proves is that the Constitution itself doesn't mandate a supermajority in this instance. It doesn't prove that Senate rules can't establish a supermajority.
Yes it does. You either understand the concept that the Constitution is the supreme law of the land or you don't. The Constitution always trumps rules. Phrased more precisely, Senate rules cannot amend the Constitution. Even legislation passed by two-thirds of both Houses over the President's veto cannot do so.
thsr - Once again, there is no "if", no "provided". The Constitution does not say "he shall nominate, and 'if' the Senate gives Advice and Consent...".
inquest - It says he shall appoint "with" their advice and consent. That means their advice and consent (consent, specifically) is the condition that needs to be met in order for him to make the appointment. If he has it, he shall appoint. If he doesn't, he shall not appoint. There's no "shall" directed towards the Senate, only the President.
Yes there is. We've already covered this in post 90. To repeat: The logic of this is quite simple and inescapable. The President is required to fill these vacancies ("...he shall nominate, and ...shall appoint..."). Those who try to dissemble and deny the Senate's responsibility by asserting that Article 2, Section 2 does not specifically say "the Senate shall" fail to grasp (or more likely deliberately ignore) that this is covered by the Senate members' Oaths of Office. If the Senate fails or refuses to perform their Advice and Consent function, then they are preventing or obstructing the President from fulfilling his mandated duty. Obstructing a Constitutional Officer, e.g. the President, from carrying out his duty is itself a violation of the Constitution.
inquest - If the "by and with" part constitutes a command to the Senate, than that means the Senate is commanded to consent to the nomination, which is absurd.
Again, we've already covered this. From post 104: First, the phrase "Advice and Consent" in constitutional law means simply that the Senate must vote to either approve to reject the President's nominee. That is all it means.
You are incorrectly using the term "Consent" by implying that it means that the Senate is commanded to "approve" the nomination. The phrase "Advice and Consent" is a term of art that in the accepted constitutional usage of 200 years means to vote. As I pointed out in post 90, the Senate is free to either approve or reject the nominee. What they are not free to do is to avoid or refuse to participate in the process which the Constitution specifically outlines and requires, since by refusing to perform their Advice and Consent function in the Constitutionally mandated process for filling vacancies, they are obstructing another Constitutional Officer, the President, from fulfilling his constitutionally mandated duty.
We have worried this bone enough. You have presented your arguments, and I have presented mine. The logic of my arguments is derived from a combination of the actual language of the Constitution and the principles and Original Intent of the Founders as expressed in their own words and writings of the time, e.g. the Federalist Papers. My conclusions are consistent with those sources.
Those who cling to a single provision of the Constitution, e.g. the Senate can make its own rules, and who then advocate the useage of that provision in a manner inconsistent with those original souces in a desperate effort to win their particular "battle of the moment" will of course think differently.
I leave it to the readers here to decide for themselves.