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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