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Ben Sasse a “No” On Ketanji Brown Jackson

Ben Sasse a “No” On Ketanji Brown Jackson

All eyes turn to Murkowski, Collins, and Romney as to whether there will be a 50-50 split, with resulting constitutional chaos as to whether VP Harris can cast a tiebreaker vote on a Supreme Court nomination.

Nebraska Republican Senator Ben Sasse will not vote to confirm Ketanji Brown Jackson to the Supreme Court:

“Judge Jackson is an extraordinary person with an extraordinary American story. We both love this country, but we disagree on judicial philosophy and I am sadly unable to vote for this confirmation”

This means a likely 11-11 Judiciary Committee tie, so no recommendation to the full Senate, but that is not a requirement for a floor vote, as there are maneuvers Democrats could use. So what might a floor vote look like?

Sasse did not vote at all on Jackson’s nomination to the Court of Appeals. Only three Republicans voted for it – Murkowski, Collins, and Graham. But Graham already is a No on the SCOTUS nomination. Romney voted No on the Court of Appeals nomination, so how could he justify voting that Jackson should not be on the Court of Appeals, but should be on SCOTUS? Well, he’s Mitt Romney.

That leaves Collins and Murkowski. The clear betting odds are that one or both of the them will vote Yes. Murkowski faces reelection in November, so that might put pressure on her to vote No. Which leaves Collins. I’d be shocked it she votes No.

But what does it matter? With Joe Manchin already a Yes, Democrats almost certainly will have 50 votes, and Kamala Harris will cast the tiebreaker, the mainstream median assures us.

But there’s a problem there that I highlighted in a post on January 26, 2022, prior to Jackson’s nomination, Remember When Liberal Law Profs Said VP Can’t Cast Tiebreaker On Supreme Court Nominations? I Bet Mitch Does:

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.

I then quoted the analysis of Alan Dershowitz as well as that of Lawrence Tribe, liberal legal icon and hero of the anti-Trump Resistance, who wrote:

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.

Tribe stands by his analysis:

This all depends on whether all 50 Republicans vote No. A long-shot still.

Mike Davis from the Article III Project points out it ain’t over until it’s over. Remember the Kavanaugh crap didn’t come out for weeks after the hearings.


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If we had won the two senate seats in Georgia this would be relevant because we would have a majority.

There will be no “constitutional chaos.”

If by some weird twist of fate the Rinos vote against Jackson, Harris will cast the tie-breaking vote and if Republicans so much as clear their throats, the entire democrat party and the entire mainstream media and all the self-righteous blue checks on Twitter and such places will scream “They hate democracy!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!”

Republicans will back down, as they always do, and the whole thing will be forgotten in a minute.

    George_Kaplan in reply to irv. | March 25, 2022 at 11:25 pm

    Harris can’t cast a tie-breaking vote as she doesn’t have that authority. Her tie-breaker vote applies exclusively to legislative matters, which this isn’t.

      TargaGTS in reply to George_Kaplan. | March 26, 2022 at 9:26 am

      Unfortunately, what’s going to stop the Senate Democrats from doing it anyway?

      Milhouse in reply to George_Kaplan. | March 27, 2022 at 2:05 am

      That is bullshit. The constitution says as clearly as can be that she has a vote whenever the senate is equally divided. There is not one word, anywhere in the constitution, limiting or modifying that. Tribe has lost whatever marbles he once had.

It was nice of Sasse to be conciliatory towards a pedo enabling communist in his statement.

“the courts generally can’t rule on Senate Rules” – the answer to this question is right there. The Senate can violate it’s own rules, there is no way to enforce them except by the Senate as I understand it. The same is true for the House.

    George_Kaplan in reply to james h. | March 25, 2022 at 11:26 pm

    Except this isn’t a Senate rule issue, but a Constitution issue. Is the VP granted authority to vote in such matters?

      I am not a legal scholar but following the logic, the VP has in a sense already exercised their vote by being a member of the executive branch that nominated the candidate. The executive branch is exercising its constitutional duty of then seeking the approval of the Senate. The Senate splits by party. So the executive branch decides that it doesn’t matter? “If you won’t decide, we will.”?

      This isn’t like breaking a tie over bills. The executive branch never introduces bills. Bills are sponsored by senators. The Senate isn’t being asked to rule by another branch of government. That is the explicit purpose for the VP being Senate President Pro-Tem. To break a tie on votes related to bills.

      If the Senate can’t decide on executive branch appointments, that should be it. It was never the intention of the Founding Fathers to have judges approved based on their politics but on their judicial qualifications and experience that shows they will defend and preserve the US constitution. IMHO, this should be where we draw the line regarding SCOTUS appointees. Politics is the worst litmus test but that’s where we are. We need this constitutional crisis.

        Milhouse in reply to Pasadena Phil. | March 27, 2022 at 2:11 am

        The vice president is not a member of the executive branch. The executive power of the united states is vested exclusively in the president, and the VP does not work for the president.

        The VP is a member of the legislative branch. She is a non-voting senator. And the constitution says she gets to vote if the other senators are tied. It makes no difference what the subject of the vote is. If 50 senators plus the VP vote for a nomination then the senate has consented to it, and the president can make the appointment.

        And this is an internal matter for the senate, so the judicial branch has no authority to rule on it.

      Milhouse in reply to George_Kaplan. | March 27, 2022 at 2:12 am

      Except this isn’t a Senate rule issue, but a Constitution issue. Is the VP granted authority to vote in such matters?

      It’s an internal matter of the senate, so the courts have no authority to intervene.

More Ketenji-isms:

“America doesn’t need farmers, because it has grocery stores.”

“Windmills will cool down the Earth to stop global warming.'”

“I once went skydiving. I was waiting forever for the plane to stop, so I could jump out.”

“I keep my weight down by never drinking carbonated water, thus reducing my carb intake.”

“Was Obama a Constitutional law professor? What do I know about his constitution?”

To be continued….

Why is it a bridge too far for them to nominate a woman of color who knows the difference between a boy and a girl? Or perhaps doesn’t show leniency to pedophiles? Is this the best they can offer?

I miss the good old days when the whack-a-doodles were shot down and the POTUS had to try “try again.”

Jesus Wept!!!!

All the people involved in this dumpster fire have taken an oath to defend the Constitution. Not seeing it.

DaniBenGolani | March 26, 2022 at 7:22 am

……Yuri Bezmenov…….

E Howard Hunt | March 26, 2022 at 8:21 am

Why shouldn’t this woman lie? Her admittance to Harvard was a lie. All her grades were lies. All her job performance reviews were lies. Her entire life is based on ongoing lies perpetuated by her white masters.

Two-weeks ago, her bi-partisan confirmation was considered by just about everyone to be a forgone conclusion. And yet, here we are. Why?

Journalists are afraid to talk about it (at least publicly). But, her confirmation hearings were the biggest self-own in the modern-day history of confirmation hearings. She wasn’t undone by some wild, unsubstantiated claims about her behavior from decades ago. Instead, she was undone by HERSELF. She was the least prepared Supreme Court nominee I can remember. Not only is she not qualified to sit on the highest Court, she’s CLEARLY not qualified to sit in traffic court. She has a laughably thin understanding of American law, Kamala Harris-esque in fact.

The Republicans who voted for her previously should hand their heads in shame. They won’t of course because that’s a shameless lot.

If there is a silver lining in this (if she’s confirmed), it’s that she is on record stating sex is a biological construct!

    Peabody in reply to oldvet50. | March 26, 2022 at 10:24 am

    She is on record stating that someone who committed a 15 minute crime on the internet should not receive a 30, 40, 50 year sentence because their crime was so short.

    Wow! I mean just WOW! How long does it take to pull a trigger?

“The Nation’s justice correspondent Elie Mystal said Friday on ABC’s “The View” that the United States Constitution is “trash” written by slave-owning white people.”

My sense is that Ketanji agrees with that much more than if a white man said, “The constitution is our country’s highest law and my job is to follow it.”

Steven Brizel | March 26, 2022 at 11:12 pm

Since Tribe and Dershowitz agree this means that Biden cannot rely on Tribe for legal basis of Harris as tie breaker who was reportedly behind the executive orders vacated by SCOTUS re rent and CDC and OSHA mandates I could see Collins possibly voting for Jackson with Murkowski voting against with Romney s also voting against based on his prior vote against Jackson

Back when Trump was President, liberal scholars argued that the VP could not cast a tie-breaking vote to confirm a Supreme Court nominee.

And they were clearly wrong. None of us had any doubt that they were wrong. That remains the case today.

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.

This is twaddle. The constitution makes no such distinction. The VP is a non-voting senator, who has a vote whenever the other senators are equally divided. The subject of the vote makes no difference.

Hamilton was either mistaken or lying. But his words have no value in interpreting the constitution.

no vice president in our history has ever cast a tiebreaking vote to confirm an appointment to the Supreme Court.

On the contrary, no vice president in our history has ever declined to cast a tiebreaking vote on that topic. The opportunity has never arisen, but there can be no doubt that if it ever had the VP would of course have voted. And if it happens now for the first time, of course the VP will vote.