both instances appearing in the same sentence in Article II, Section 2, paragraph 2, where it states:

[The President] 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.

We notice that while a president’s power, by and with Advice and Consent of the Senate, to make treaties, requires a full two thirds of the Senators present to concur, the president’s similar power to appoint Judges of the Supreme Court requires only the Advice and Consent of the Senate majority. The first key point here is that a president’s power to make treaties is more severely constrained by the Constitution than is his power to appoint Supreme Court Judges.

Now let’s look at the precedent. In 1905, President Theodore Roosevelt, a Republican, negotiated a treaty without Senate Advice and Consent for a full two years before the Senate finally rejected the action. Roosevelt, on page 510 of his 1913 An Autobiography, details his actions and his reasoning as follows:

The Constitution did not explicitly give me power to bring about the necessary agreement with Santo Domingo. But the Constitution did not forbid my doing what I did. I put the agreement into effect, and I continued its execution for two years before the Senate acted; and I would have continued it until the end of my term, if necessary, without any action by Congress. But it was far preferable that there should be action by Congress, so that we might be proceeding under a treaty which was the law of the land and not merely by a direction of the Chief Executive which would lapse when that particular executive left office. I therefore did my best to get the Senate to ratify what I had done.'>>>

Interesting, but imagine the brouhaha (MILD term) if he should try this. And can you think of a judge who would voluntarily subject him/herself to it???

because they really are just obstructing.

Let him do it. Pick the scariest judge ever - a TOTAL LIBERAL.

I like the argument.

So I don't see what the point is. Obama can certainly nominate someone but they would not be able to go onto the court until confirmed. Roosevelt negotiated a new treaty two years later and that was ratified by the Senate.