I read the Constitution to say that the president nominates Judges to the supreme court who are appointed only if the Senate consents. I don't read it to say that the Senate
must advise and consent, nor that the President
must nominate anyone.
Remember, it says: "shall have Power ... shall appoint", it does not say "will/must appoint".
"“shall” is to be construed as “may,”" (
law dictionary)
Wow, you are really cherry picking and glossing over what that law dictionary says. Let’s look at the whole paragraph.
“What is SHALL?
As used in statutes and similar instruments, this word is generally imperative or mandatory; but it may be construed as merely permissive or directory, (as equivalent to “may,”) to carry out the legislative intention and In cases where no right or benefit to any one depends on its being taken in the imperative sense, and where no public or private right is impaired by its interpretation in the other sense. Also, as against the government, “shall” is to be construed as “may,” unless a contrary intention is manifest.“
Are you claiming that whenever the word “shall” is used in the constitution it should be construed as “may?”
If so, let’s replace “”shall” with ”may” in some other places and see how it looks:
“All legislative Powers herein granted
may be vested in a Congress of the United States, which
may consist of a Senate and House of Representatives.”
“The House of Representatives
may choose their Speaker and other Officers; and
may have the sole Power of Impeachment.”
“All Bills for raising Revenue
may originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.”
When you read the constitution, it’s clear that the words “shall” and “may” are not interchangeable, except in cases where both would mean the same thing, such as “Judgment in Cases of impeachment
shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”
When prohibiting something,
“shall” and “
may” end up meaning the same thing. But not when describing what is supposed to happen.
