Remember When Liberal Law Profs Said VP Can’t Cast Tiebreaker On Supreme Court Nominations? I Bet Mitch Does
Lawrence Tribe 2020 on Barrett nomination: “While the vice president has the power to cast a tiebreaking vote to pass a bill, the Constitution does not give him the power to break ties when it comes to the Senate’s “Advice and Consent” role in approving presidential appointments to the Supreme Court.”
The working assumption in the media coverage in the hours since Justice Stephen Breyer’s planned retirement was leaked is that getting Biden’s pick confirmed is a done deal because Kamala Harris can cast the tie breaking vote and Democrats certainly will stick together. Even Lindsey Graham reached that conclusion.
As to his replacement: If all Democrats hang together – which I expect they will – they have the power to replace Justice Breyer in 2022 without one Republican vote in support.
— Lindsey Graham (@LindseyGrahamSC) January 26, 2022
But is that true? Well, the math is true, it’s 50-50, and assuming the VP could cast a tie breaker, it’s a done deal.
But maybe it’s not so simple if Republicans wanted to block a nomination. That’s a big IF – Barring a nominee with a real skeleton in the closet (not a fake Kavanaugh-style skeleton), I don’t know that Republicans will have the stomach for the type of scorched earth tactics Democrats regularly use. I also doubt that even if most Republicans had the stomach for a fight that Republicans would stick together — Murkowski voted against Kavanaugh, and Collins and Romney are obvious weak links.
But what if, in some hypothetical world, Republican had the stomach and cohesiveness for a nomination fight. Is it really futile?
Back when Trump was President, liberal scholars argued that the VP could not cast a tie-breaking vote to confirm a Supreme Court nominee.
On September 23, 2020, when the issue was Amy Coney Barrett’s nomination, Alan Dershowitz argued:
Never in our history has a Supreme Court nomination been confirmed by an equally divided vote among U.S. senators, with the vice president breaking the tie. But if one more Republican senator decides to vote no on President Donald Trump’s nominee—whoever she may be—we may face that situation. Did the Framers of our Constitution consider such a result? Several provisions and statements of the Framers cast light on this question.
There are three provisions of the Constitution that are most relevant. Article 2 empowers the president to “nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the Supreme Court.” Article 1 provides that “The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.” Article 1 also states that “Each house may determine the Rules of its Proceedings.”
It is clear, therefore, that in voting on proposed statutes, the vice president is authorized to cast a tie-breaking vote. But did the Framers intend the same rule to apply when the president is seeking the advice and consent of senators to a judicial nomination? We can’t know for certain, because the Constitution and Federalist Papers focus on the vice president’s role in breaking ties over legislation, not confirmation.
On that same date, liberal Harvard Professor Lawrence Tribe argued no such tie-breaking vote could be cast:
While the vice president has the power to cast a tiebreaking vote to pass a bill, the Constitution does not give him the power to break ties when it comes to the Senate’s “Advice and Consent” role in approving presidential appointments to the Supreme Court.
You don’t have to take my word for it. Alexander Hamilton said the same thing way back in 1788, in Federalist No. 69: “In the national government, if the Senate should be divided, no appointment could be made.” Hamilton contrasted that rule with how appointments worked back then in his home state of New York, where the governor actually did have the power to break ties to confirm nominations to New York state offices.
Consistent with Hamilton’s understanding, as two thoughtful recent scholarly analyses have pointed out, no vice president in our history has ever cast a tiebreaking vote to confirm an appointment to the Supreme Court. If Pence tried to cast the deciding vote to confirm Trump’s nomination to replace Justice Ruth Bader Ginsburg, who died last week at age 87, it would be the first time that has ever happened. That should matter to everyone — it certainly matters (or used to matter) to “originalists,” who emphasize the importance of history when interpreting our Constitution.
As of this writing Prof. Tribe, a prolific Twitter user, has not yet tweeted on this issue. His view was disputed at the time by some “originalist” legal scholars, while others agreed with Tribe’s view. I’m not going to try to resolve this issue now, I don’t know the answer. But it’s an issue if *someone* wants to make it an issue.
How it would be resolved is not clear, the courts generally can’t rule on Senate Rules. If Democrats ram through a 50-vote plus tie-breaker nominee, what’s next? Is it legitimate, can that Justice take the seat? Would the other Justices in effect vote whether to seat the person? Chaos?
That assumes a lot of things — Republican will to fight and cohesiveness — that I don’t think will happen. But McConnell probably will be up late tonight.
McConnell searches for the obscure Senate rule that would allow him to block Biden’s SCOTUS nomination. pic.twitter.com/Fukges8RJ0
— Julian Zelizer (@julianzelizer) January 26, 2022
Tribe is sticking by his position:
— Philip Melanchthon Wegmann (@PhilipWegmann) January 26, 2022
UPDATE No. 2
Mitch is on the case.
“The President must not outsource this important decision to the radical left. The American people deserve a nominee with demonstrated reverence for the written text of our laws and our Constitution.”
McConnell issues statement on SCOTUS vacancy: “The President must not outsource this important decision to the radical left. The American people deserve a nominee with demonstrated reverence for the written text of our laws and our Constitution.”
— Manu Raju (@mkraju) January 27, 2022
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