Vice President Kamala Harris delivers remarks virtually during the Generation Equality Forum, Wednesday, June 30, 2021, in the South Court Auditorium in the Eisenhower Executive Office Building at the White House. (Official White House photo by Lawrence Jackson)
[Editor's note: This story originally was published by Real Clear Politics.]
By Philip Wegmann
Real Clear Politics
It is a simple question, but one with potentially profound consequences. And Jen Psaki, who was already being extremely cautious behind the White House lectern on Wednesday, was not ready to give an answer.
Is it the understanding of this administration that the vice president can cast the tie-breaking vote to confirm a nominee to the Supreme Court? That’s what a reporter asked Psaki shortly after news broke that Justice Stephen Breyer plans to retire, setting up a likely pitched battle over his successor’s confirmation.
“I would have to check on the specifics,” President Biden’s press secretary replied.
Across town on Capitol Hill, Senate Judiciary Committee Republicans are already researching the theory that the Founding Fathers never intended a vice president to cast a tie-breaking vote of this sort. “It seems plausible,” a senior GOP aide told RealClearPolitics. “That is definitely something that people will be focusing on to drill down to the roots.”
More than just constitutional conjecture, the question has immediate political ramifications. With the Senate split 50-50 among Republicans and Democrats, if Biden’s Supreme Court nominee gets hung up along party lines in the upper chamber, who has the authority to break a tie? Does a vice president, whom the Constitution designates as the ex-officio president of the Senate, have that power in this case?
It is a question that the former administration also wrestled with during the battle over each of President Trump’s high court nominees. Then-Vice President Mike Pence seemed to have come to a conclusion during the fight over Justice Brett Kavanaugh’s confirmation.
“And do you think you need to cast the deciding vote to confirm Judge Kavanaugh?” CBS “Face the Nation” host Margaret Brennan asked Pence in September 2018.
“Well, we hope not,” he replied, seeming very much settled that he had the authority to cast such a tiebreaker. He never had to test it, though. At least, not for a Supreme Court nominee. Kavanaugh was confirmed by a vote of 50-48. Pence would return to the Senate later that year, however, and vote to confirm Jonathan Kobes to sit on the U.S. Court of Appeals for the Eighth Circuit.
It was the first-ever tie-breaking vote to confirm a federal judge, and it was controversial. Shortly after news broke of Breyer’s retirement, scholars returned to the debate. Ed Whelan, a senior fellow at the Ethics & Public Policy Center, noted that Laurence Tribe previously argued that a vice president didn’t have such power.
“Larry Tribe was wrong in 2020 to assert that VP can't break a tie on a nomination, but it would be interesting to see if he stands by his error,” noted Whelan.
The conservative strategist was referring to a 2020 Boston Globe op-ed written by Tribe, a distinguished professor at Harvard Law School and the liberal legal scholar whom the Biden White House has consulted before on tricky constitutional considerations.
“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,” Tribe wrote as the upper chamber was preparing to take up the nomination of Supreme Court Justice Amy Coney Barrett.
“A thumb on part of the scale in the legislative process is hugely different from single-handedly tipping the entire scale when it comes to confirming justices,” Tribe concluded, making a distinction between the authority to break a logjam over legislation vs. a vote to potentially remake a co-equal branch of government.
Republicans are currently searching for any weapon to push back on whomever Biden nominates to the high court. Some influential commentators might flip their positions on the issue, but not Tribe. He told RealClearPolitics on Wednesday that he doubts he will change his mind just because the political winds have shifted.
“I wrote that piece around 15 months ago and have not thought about the issue since. I doubt that I would reach a new conclusion upon re-examining the matter,” he said, before adding with some regret, “Even though, given the current political circumstances, I obviously wish the situation were otherwise.”
White House officials hadn’t made their thinking clear by press time, but it seems likely that they are open to having Kamala Harris break a deadlock if need be — even if that means contradicting a close political ally. Harris has already followed the precedent laid out by Pence. When the Senate was split 50-50 last November over the nomination of Jennifer Sung to the Ninth Circuit Court of Appeals, Harris walked onto the Senate floor to break the 49-49 tie. At the time, Sung was the only nominee to require an extra push from the White House. This could soon change, depending on whom Biden nominates to fill the seat vacated by Breyer, a liberal.
“There is nothing to prevent it from happening. Absolutely nothing,” said Josh Blackman, a conservative law professor at the South Texas College of Law. “The president of the Senate, the vice president, can cast a vote on this and on any other matter,” he told RCP, before adding that “while there might be very good prudential reasons why not to do so, there's nothing stopping it.”
[Editor's note: This story originally was published by Real Clear Politics.]
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