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Remember When Liberal Law Profs Said VP Can’t Cast Tiebreaker On Supreme Court Nominations? I Bet Mitch Does

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.”

https://www.youtube.com/watch?v=SuNPCqcsInQ

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.

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.

Note: There’s an article in Time arguing that Republicans can prevent a floor vote, but it’s being widely attacked as inaccurate.

UPDATE

Tribe is sticking by his position:

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.”

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Comments

Don’t worry.

Grahamnesty has yet to find an insane leftist judge he doesn’t like, he’s literally voted for EVERY SINGLE ONE of Biden’s out of committee.

And he continues to sit on the Judiciary with the full approval of Bitch McConnell, and will be put back ‘in charge’ if the RINOs take control again.

Graham is such a quisling piece of shit.

    Peabody in reply to Olinser. | January 27, 2022 at 10:25 am

    You have hit the muck squarely on the head with a manure shovel.

    Danny in reply to Olinser. | January 27, 2022 at 1:37 pm

    I wish Democrats had blamed Chuck Schumer for Trump nominees getting through because it makes as much sense as your blaming Grahm.

    https://twitter.com/jiwallner/status/1486464743460282372

      Ironclaw in reply to Danny. | January 27, 2022 at 3:38 pm

      Did Schumer vote to advance or vote for any of Trump’s nominees? Of course not, so it’s not an apt comparison.

        Danny in reply to Ironclaw. | January 29, 2022 at 1:45 am

        Well Graham has not voted for or advanced any of Biden’s nominees either.

        You just want your circular firing squad on this because you think it confirms your views that we didn’t lose we got stabbed in the back.

        Imaginary betrayals however tend to cause actual defeats (just ask the Russians what it was like at the start of Barbarossa). Under current senate rules a 50-50 committee goes to the senate floor. If there was a committee rule that allowed Graham veto powers over the judicial nominee (a power Schumer never gave him, and which he does not have in the minority) he would be using it.

        But Chuck Schumer appreciates everyone participating in operation demoralize, and loves that you are working to convince people not to vote for Republican senators this November.

caseoftheblues | January 26, 2022 at 10:20 pm

Not a lawyer here but isn’t it totally, completely illegal for a government official…Biden…to state in hiring for a government job they will ONLY consider a particular race and sex?

    No, it isn’t, because nomination is not hiring. It’s a political process and the president is entitled to use whatever criteria he feels like, no matter how stupid or perverse. It’s up to the senate to withhold its consent if it doesn’t like it.

      caseoftheblues in reply to Milhouse. | January 27, 2022 at 4:46 am

      So discrimination based on sex and race then is just fine…..our laws, regulations and Constiitution take a big pause for “political process”, for the semantics of “appointee”. The person filling the SC role doesn’t really have a job with the Federal Government…you know as defined by set duties and like getting a regular paycheck..
      Benefits…retirement package. But hey you wouldn’t be you if you didn’t constantly white knight for wrong and evil giving yourself cover with all the rot and slime politicians guided by lawyers have managed to inject into our system in order to make sure that they are the ones that always ultimately benefit.

        The Gentle Grizzly in reply to caseoftheblues. | January 27, 2022 at 5:49 am

        Yes.

        You idiot, where in the constitution does it say discrimination based on sex and race is not just fine? Do you not understand that until the 1960s it was perfectly legal to discriminate in hiring? Or do you not understand that “laws and regulations” can’t override the constitution?

        The constitution says how a supreme court justice is appointed. Congress can’t change that. So how can you imagine it could apply anti-discrimination rules to it?

          caseoftheblues in reply to Milhouse. | January 27, 2022 at 2:19 pm

          Ah yes…always the personal attack…I guess at least this time you weren’t overtly vulgar…
          Anyway are you being deliberately obtuse or has your moral compass just gone completely missing? My point towards you was this filling or excluding people from positions based on race or sex is completely wrong…the opposite direction we as a society should be headed in and illegal. Your cheering and smugness about a few well placed commas or shall be’s making it “right” just proves my point I made about you. But as I said …you be you…

          Milhouse in reply to Milhouse. | January 27, 2022 at 3:22 pm

          And you continue to display your idiocy. You asked whether it was illegal. I pointed out that it’s in the constitution, so it can’t be illegal. Congress has no authority to make laws that override the constitution.

          “You idiot, where in the constitution does it say discrimination based on sex and race is not just fine?”….

          – In the preamble. Specifically, is says: “discrimination based on sex and race is not just fine”. Or something.

      Warspite in reply to Milhouse. | January 27, 2022 at 8:52 am

      True enough. But that means, “I will not name/nominate/appoint a Black person”, as an example, would also simply be part of the political process & that doesn’t sound quite right, does it? . It’s one thing to plan on nominating some identity-politics individual, it’s quite another to mouth off about it while a candidate for President. This is just another of the endless series of gutless, risk nothing, never sacrificed anything persons pretending 2022 is 1960.

        Milhouse in reply to Warspite. | January 27, 2022 at 10:40 am

        Of course “I will not name/nominate/appoint a Black person” would be completely part of the political process. That’s why for most of the USA’s history presidents didn’t appoint black people to these positions. That was a popular stand, and it got them votes. Nowadays candidates would never say that, not because it’s somehow against the rules, but because it would lose them many more votes than it would gain.

        tbonesays in reply to Warspite. | January 27, 2022 at 1:24 pm

        The Senate would decide if the discrimination was allowable because the Constitution gave the confirmation power to that body. Thus the Senate is the ‘court’ for that argument.

        It is the same as the “other high crimes and misdemeanors” uproar which the Ds took to mean ‘political statements we do not like.’ They were obviously wrong but it’s up to the Senate, not the Judicial branch, to rule that they were wrong.

      DaveGinOly in reply to Milhouse. | January 27, 2022 at 12:06 pm

      I can’t agree or disagree with you, Milhouse, but I will point out that “SCOTUS Justice” is a paid position, and that an appointment to a job that draws a salary is a “hire”, no matter that it’s an appointed position. (An argument could be made that all competitive hirings are “appointments”, because the hiring authority selects the preferred candidate from a pool of potential hires. The process of the competition does not change the fact that someone is eventually chosen for, i.e., appointed to, the vacant position.)

        tbonesays in reply to DaveGinOly. | January 27, 2022 at 1:27 pm

        They [are supposed to] have a sharp distinction between officials and employees. See the recent news of Homeland Security official trying to tell his employees how much he supports them, and getting booed.

        Milhouse in reply to DaveGinOly. | January 27, 2022 at 3:24 pm

        It doesn’t matter. A law passed in the 1960s can’t override the constitution.

    That’s right! We do not have enough warriors to prevent a radical bench legislature from being appointed. Graham is a statesman after all meaning he is most influenced by his peers Republican or Democrat.

Laughing in schadenfreude.

I wouldn’t object to McConnell trying such a stunt just because the Dems deserve all the grief they can be given, but as a matter of law I don’t think there can be any doubt that the vice president does have the same tie-breaking power on nominations as she does on legislation.

Laurence Tribe seems to have lost whatever marbles he once had, and his opinion should be disregarded; he was wrong in 2020 and (assuming he hasn’t changed his mind now that there’s a Dem VP) he’s still wrong.

Morse is not stupid, but I don’t find his arguments plausible. In particular, the VP, in her role as president of the senate, is an Article I office holder, not Article II, so there’s no separation of powers problem. (See the Biden v Palin debate in 2008; Biden had clearly not read the constitution in a long time if ever, and he was talking bulldust). And of course in the original design of the constitution the VP was supposed to be the president’s chief rival, not his ally, so giving him this power would have made perfect sense.

IMO this is all academic. Unless the eventual nominee stumbles horribly or is a raving loony Sen Graham will vote to pass the nomination out of the Judiciary which cuts off that potential hurdle and he will very likely vote to confirm on the floor.

The nominee is almost certainly going to be Judge Jackson from the DC Circuit. She meets all the obvious qualifications and Biden’s requirement of ‘a black female’. She was confirmed to her position by the Senate last year so it’s hard to make a plausible argument for not confirming her. Her nomination would be the path of least resistance. Assuming of course that Breyer is actually going to resign after the shoddy way this leaked……

    caseoftheblues in reply to CommoChief. | January 27, 2022 at 4:49 am

    Have you seen the hearings for the nominees Bidens been throwing out there for all sorts of positions…raving loonies barely covers it!

      CommoChief in reply to caseoftheblues. | January 27, 2022 at 11:29 am

      Not all of them, maybe not even most of them but some of the higher profile nominees were/are completely out of the range of acceptable. Many were/are standard issue progressive leftists who believe in big govt and not really radical. The thing is the d/prog have realized that they are going to loose in the midterms and that neither Biden nor Harris can win in 2024. This knowledge has led them to push for nomination of many more radicals to higher profile positions than normal.

      The problem the r have is the inability to realistically remain cohesive in opposition to more than a handful of true radical nominees. It’s a 50/50 Senate so even one r breaking ranks is enough. Sure would be nice to have one of the GA Senate seats….In any event the expectation that the r in the Senate can successfully oppose and defeat every nomination is foolish. It’s similar to a referee in a football game; they will call egregious pass interference or egregious holding but they won’t call it every play. Even though both occur many more times than called.

      Think about it as a viewer; the refs are throwing a flag every play, the game basically stops, as viewer we would be frustrated and start yelling to ‘let them play’. The same applies to politics and life. Eventually you have to choose which battles to fight and conserve some powder for the next fight. If they try to block every nomination they are PO voters who view it as being obstructive out of spite. As Obama said elections have consequences and losing the two GA Senate seats vastly reduces the ability to effectively force more middle of the road nominees.

        DaveGinOly in reply to CommoChief. | January 27, 2022 at 12:12 pm

        Because the midterms are looming, I expect Mitch to dig in his heels. He can be a traitorous SOB, but I also think he gets a great deal of pleasure disrupting the plans of those he does not like personally (re: the way he stiffed Obama’s SCOTUS decision – motivated, I believe, by personal animosity, and not politics). Standing firm would assure a midterm tidal wave for the Republicans. Not doing so could be disastrous. Although Mitch may not put America first, he will put his party first. This will help in this situation.

          CommoChief in reply to DaveGinOly. | January 27, 2022 at 1:36 pm

          If the nominee is in fact a loony then sure I am all in on opposing them. Same if this nomination would alter the CT. If they are simply in the same lane as Sotomayor, who I think is a raging progressive ideologue, then I don’t see the point in expending powder.

          At the end of this the composition of likely votes from SCOTUS doesn’t change. It’s still going to be reliably 3 leftist votes/ 4 conservative votes/ Roberts as the weather vane and occasionally ACB but more often Kavanaugh straying to vote with the leftists. So usually a 5/4 split on broad ideological lines sometimes getting to 6/3.

          IMO, being obstructionist simply to throw sand in the gears for a nomination fight that Collins and Graham won’t support, which in a 50/50 Senate makes victory impossible, is poor strategy. Better to sit back, force regular order on the proceedings, allow the d/prog to have a diversity olympics internal feud, let Biden make errors and watch. Maybe they screw it up and the r can take that opportunity to force a more moderate nominee.

          Milhouse in reply to DaveGinOly. | January 27, 2022 at 3:28 pm

          Yes, the midterms are looming, but Biden will still be president after them, so ultimately the senate has to confirm someone he nominates, or else leave the vacancy for 2.5 years. But if he manages to string it out until the GOP has a majority he can play hardball with Biden and insist he nominate someone moderate enough to attract some R votes.

          DaveGinOly in reply to DaveGinOly. | January 28, 2022 at 2:22 am

          Replying to Milhouse here.
          Breyer says he’s staying until his replacement is confirmed, so no worries there.

    Brave Sir Robbin in reply to CommoChief. | January 27, 2022 at 4:30 pm

    “IMO this is all academic. Unless the eventual nominee stumbles horribly or is a raving loony….”

    This is what will be appointed for the purpose of instilling Republican dissent to provoke a fight over which the Democrats can stir up their base. It’s an election year, after all, and they will need all the help they can get this time around.

    The choice will be designed to enlist maximum conflict.

      CommoChief in reply to Brave Sir Robbin. | January 27, 2022 at 5:24 pm

      BSR,

      Could be, it’s certainly one strategy. If it were me I’d take the path of least resistance and nominate Judge Jackson from the DC appellate CT today. That does several things:
      1. Stops the posturing and internal d/prog elbows from supporters of x or y or z.
      2. Allows/forces the d/prog coalition to get behind one person before the elbows create lasting fissures.
      3. She was confirmed very recently so the process should be very smooth; if the background and history wasn’t enough to derail her nomination to the DC Appellate CT, in may ways the most influential, then it’s not enough for this nomination.

      Nomination of a more controversial person has too much risk, IMO. The Biden admin needs a win and to show competent. Screwing up a nomination to SCOTUS when they have an easy option invites failure. Additionally it adds unneeded complications for d/prog Senators in purple and swing States in an election year.

      Nomination of Judge Jackson is playing with house money on as close to a sure thing as it gets. Why take a risk?

        Brave Sir Robbin in reply to CommoChief. | January 27, 2022 at 5:38 pm

        Nah…. they cannot raise money or stir up the base with that. They will get their tails handed to them in November as is, so why not take the “a risk.”

        Friendly wager – divisive nominee. Winner gets to call the loser a loser.

          CommoChief in reply to Brave Sir Robbin. | January 27, 2022 at 8:04 pm

          Based on Obama’s admonition;’ never underestimate Joe’s ability f?0( things up’ and since by delaying his announcement and letting Clyburn push his preferred candidate from SC which means the internal d/prog diversity olympics are underway…..

          I think you have already won.

My question would be if Biden were to nominate Kamala Harris could she break the tie to approve her own nomination?

    Milhouse in reply to Baby Elephant. | January 27, 2022 at 1:02 am

    Assuming (which I do) that she can break the tie on someone else’s nomination, then yes, she can do so on her own nomination too. It’s no different from any candidate voting for themselves, which of course all candidates do, usually with great publicity.

    Milhouse in reply to Baby Elephant. | January 27, 2022 at 7:09 pm

    For that matter, when the president nominates a sitting senator for some office (including supreme court justice), that senator gets to vote on their own confirmation.

So we have definite 47, Romney needs his ego flattered, Murkowski needs a bridge to nowhere, and Susan Collins a senator from Maine needs to know her no vote will make a difference or she will vote yes.

If anyone could do it it is Mitch McConnell, but I’m afraid the only way he gets Collins is if he could prove beyond doubt to her that if he gets all 50 senators voting no it will block the nominee, and show her he already has Romney and Murkowski.

But professor correct me if I’m wrong; if you a highly respected professor of law can’t put your hand on your heart and as Lawrence Tribe did claim the VP can’t vote in this situation how exactly could Mitch McConnell convince Susan Collins of that, and even if he could can the case VP can’t vote on supreme court nominees really be strong if it is an argument you can’t put your name to? You carry a lot of weight with many people including me so seeing you unable to stand by the argument VP can’t break this tie does tell me it is a weak argument.

Let Biden nominate, and let the Senate confirm, the absolutely craziest, left-wing nut-job as soon as possible. Get that person on the record immediately. It will be another nail in the leftist coffin and the Dems will not control the Senate for another 20 years. By that time, we’ll have 7 or 8 conservative justices.

Only Supreme Court votes? What about lower courts, non-judicial appointments, treaties, impeachments? If the principle is legislation, then there is more at stake than Supreme Court nominations.

    “What about lower courts, non-judicial appointments, treaties, impeachments? ”

    All you have to do is read the Constitution.

    Lower courts and non-judicial appointments are specified as only needing a majority; the filibuster threshold of 60 is not specified, since it’s only a Senate Rule, and “Article 1 also states that “Each house may determine the Rules of its Proceedings.” “.

    Both treaties and impeachments are governed by specific language in the Constitution that requires a 2/3 vote, as is overriding a veto. Changing THOSE thresholds requires a Constitutional Amendment approved by both Houses of Congress, the President, and a vote of the states.

      Milhouse in reply to SDN. | January 27, 2022 at 10:51 am

      That wasn’t the question. There is no difference between supreme court nominations and other nominations, whether to lower courts or non-judicial positions. IsraelP is correct that whatever the answer is for supreme court nominations would also apply to those.

      A more interesting question is whether the vice president has a casting vote when a 2/3 vote is needed. Suppose the vote is 67/33; can the VP vote “no” to prevent the 2/3? Or suppose it’s 65/33 with two absences/abstentions; can the VP vote “yes” to supply the 2/3? My guess is that she can’t, because the text of the constitution says “unless they be equally divided”, and in such a case they are not.

        Brave Sir Robbin in reply to Milhouse. | January 27, 2022 at 5:10 pm

        OK, but what if the 67 votes are from cisgender heterosexual unvaccinated white men, and the 33 votes are from transgender LGBTQ indigenous immigrant homeless undocumented people of color?

        In the interest of equality, which is demanded under our constitution, would not the vote of the later nullify the vote of the former? At worse, I would think the vote of the latter would need to be considered equal to the vote of the former, and therefore, the vice president would be allowed to cast the deciding vote.

        I don’t see how this point could possibly be argued.

        In addition, I think we can all agree that under the constitution, we are all equal under the law, Therefore, since we are all equal, any vote in the senate is, by definition, equally divided, and hence, the vice president may, in all cases and instances, cast the deciding vote.

        Since I have definitively put this issue to rest, I think we can now move forward to real question at hand. It is rumored that Hillary Clinton is a leading contender to for nomination. However, she does not appear to be black. Can she therefore qualify by declaring to be transracial? I mean, I have seen her talk black, and she does carry a bottle of hot sauce with her everywhere she goes. And she is definitely a LGBTQ transgender person with a vagina, or at least hideously ugly enough to be one, if she declares to be transracial, is she a qualified candidate for Biden’s nomination?

Bidens nomination wont make any difference to decisions moving forward. He will nominate a Liberal Justice who will only ever vote in favour of liberal positions. So basically no change what so ever.

What will erk Democrats is the fact they will not get a chance to replace a Conservative Justice for another decade or so and will be stuck with their liberal justices with the occasional assistance from Conservative Justices every now and then BUT they will not have a strong, reliable majority for decades.

I expect the Dems won’t have the votes for another radical nominee. I just don’t see Manchin nor Sinema and maybe even Mark Kelly being on board.

What I DO expect is that the discussion leading up to nomination will be poisoned by presidential politics over how to replace Biden and Harris by cutting a deal. This may turn out to be just the latest opportunity for Biden to screw up where Democrats get into yet another internal war over who gets what they want. Another attempted distraction that blows up in their faces.

Steven Brizel | January 27, 2022 at 7:41 am

If the Committee spirits 50/50 on party lines there is a rule that may allow the nomination to die in the Senate floor

    I read that too. The only way it could be revived is via a process which would eventually require a cloture vote….so, they’d need 60 votes to revive it.

    CommoChief in reply to Steven Brizel. | January 27, 2022 at 1:41 pm

    I raised that argument yesterday. The problem is that Graham will, as he has always done, vote the nominee out of the judicial committee, unless there is some catastrophic failure.

    Milhouse in reply to Steven Brizel. | January 27, 2022 at 3:45 pm

    It’s not true. A 50/50 vote on the committee goes straight to the senate floor.

Steven Brizel | January 27, 2022 at 7:42 am

Jackson wolf check all of Biden’s woke boxes Whether any Republican for her remss as in’s to be seen

Steven Brizel | January 27, 2022 at 8:20 am

The issue is whether all Democrats including Mancin and Sinema are on board and if there are any Republicans willing to vote for such a nominee

Lucifer Morningstar | January 27, 2022 at 9:16 am

And everyone seems to be forgetting one major point.

When have democrats ever given a flying patootie about the Constitution, the law, or anything else for that matter if it stands in their way of maintaining their power.

They’ll simply do whatever is necessary to nominate & confirm a “black woman” (I’m putting my money on Judge Ketanji Brown-Jackson) and to heII with the norms of government. And if that means giving the tie breaking vote to Harris, so be it.

And the Republicans won’t do a damn thing to stop them. Guaranteed.

“Back when Trump was President, liberal scholars argued that the VP could not cast a tie-breaking vote to confirm a Supreme Court nominee…Alan Dershowitz…Lawrence Tribe…”

Presumably a different cohort of liberal scholars will now write editorials and go on the pundit circuit, while Dershowitz and Tribe et al will carefully remain silent.

The VP has broken ties on other judicial nominations under both Trump and Biden. It just hasn’t happened yet for Supreme Court. I think this is a non-issue. The precedent has already been set.

The real question is: If Biden is incapacitated and Harris is Acting President, can she still break Senate ties???

I’ll bet Mitch remembers.

I hope he does more than remember. I hope he has the fortitude to do something about it.

So there are three to five unreliable Republicans and two potentially contrary Democrats.

Thus rendering the question posed about Harris academic, at least on the question of Breyer’s successor.

Assuming Breyer doesn’t bow his neck and refuse to go, thanks to BrandonCorp’s preempting his own announcement.

McConnel acknowledges that Republicans have a good chance of winning back the Senate.

“Senator McConnel, should the Republicans win back the senate, what do you plan to do?”

“Nothing.”

Every mainstream media outlet is reporting that the Rs abolished the filibuster for SCOTUS nominees in 2017. They never mention Harry Reid abolished it for other judicial nominees in 2013 and only exempted SCOTUS picks because the Rs were not filibustering.

Every major step [regression] in the nominating process was invented by Ds. The entire idea of a partisan confirmation fight was invented by Ted Kennedy ‘Borking’ up a storm because Bork was pro-life.

So…..McConnell comes out of hiding every now and then, doing nothing more than any other GOP Senator could do, but without generally stabbing the base in the back and looting the US government and enriching himself at the behest of Red China.

Half of those Republicans would vote tp confirm Karl Marx

The idea that the President can nominate a candidate for the SCOTUS, then send his assistant to confirm his nominee, is insane. It’s a clear violation of the separation of powers. It’s even more insane to suggest that if Biden were to be incapicitated and Harris were to assume his powers, then she could nominate a candidate and go to the Senate and vote to confirm her own nominee. An even clearer violation of the separation of powers.

This would render the Senate irrelevant. And we’d have a de facto dictator in the White House. Which of course we already do. I can name at least three occasions when Biden clearly violated his oath of office to serve, protect, and defend the Constitution from all enemies foreign and domestic. He proposed providing aid to minority farmers, but not white farmers. That was struck down as a clear violation of the 14th Amendment. Based upon the article by Jonathan Turley I’m going to cite his own legal counsel must have warned him he was acting unconstitutionally. Then he had the CDC declare an eviction moratorium. Then the court struck down that act as again unconstitutional. What did Biden do? Knowing it was unconstitutional he reimposed it, saying he could get away with it long enough before his new eviction moratorium was again struck down, and would have enough time to distribute more Covid relief funds.

https://jonathanturley.org/2021/08/09/canceling-the-constitution-biden-hailed-for-violating-rule-of-law-to-extend-eviction-moratorium/comment-page-2/

“Below is my column in the Hill on the extension of the eviction moratorium — a move that his White House Counsel and most legal experts told him was unconstitutional. However, according to the Washington Post, Speaker Nancy Pelosi encouraged Biden to call Harvard Professor Laurence Tribe who reportedly advised hm that he had the authority. I have had many (and sharp) disagreements with Tribe over the years (including profane and personal attacks) but there is usually some good-faith underlying disagreement in controversies like impeachment. This is not such a case. I fail to see the credible basis for telling a President that the CDC can use the same authority that five justices just declared it did not have.

Here is the column:…”

The interesting part is how Tribe wasn’t acting in good faith. Not then, not under Obama when Biden was his VP.

“Tribe and I have long disagreed on constitutional questions, but the partisanship was often laced with some plausibility. The advice in this instance is incredible for its sheer mendacity. The court clearly stated that the CDC lacks this authority, but Tribe reportedly assured Biden that this technically would be a new order, even though it is based on the same unconstitutional claim. It is like being given a parole for stealing a BMW and then immediately stealing a Lexus because it is a different car. The problem was the act, not the make of the car.

What is particularly alarming was Biden’s reason for why it may be “worth the effort” — that “at a minimum, by the time it gets litigated, it will probably give some additional time while we’re getting that $45 billion out to people.” In other words, with appeals, the Biden administration could rush out money before the courts could shut it down.

Biden was hailed for his extraconstitutional commitment to social justice. One liberal commentator declared that “with one small action, Biden reveals himself as a better leader than Trump.” That “small action” was violating the Constitution — the document he swore to uphold, “so help me God,” at his inaugural. Nevertheless, gutting the rule of law is somehow now seen as “a sign of leadership in action.”

Biden is not a first-time offender. When he was vice president, the Obama administration green-lighted the expenditure of billions under ObamaCare despite lacking congressional approval. I represented the House of Representatives as lead counsel in successfully challenging that clearly unconstitutional act, but the administration was never required to get the money back. With the cover offered by Tribe in this instance, Biden apparently hopes to repeat the same tactic to bar evictions while evading the Constitution.

No doubt Obama/Biden reckoned that they’d never be impeached for committing the unlawful act of misappropriating funds. No doubt when Biden/Harris concluded the same thing and clearly violated the 14th Amendment by providing aid to some farmers based on skin color while denying it to others based on skin color, his advisors must have told him what he intended to do was unconstitutional. No doubt Biden/Harris (or rather their puppetmaster(s)) made the same calculation and told them to simply ignore the Constitution.