A liberal Harvard University law expert stood by his past claims that a vice president cannot break Senate ties on judicial nominations, which, if upheld, could complicate the confirmation of Joe Biden‘s looming Supreme Court pick.
Laurence Tribe, Harvard Law School professor emeritus, has questioned whether the vice president, while acting as the president of the Senate, has the authority to break ties on nominations similar to tiebreaking protocol for legislation. The debate is particularly acute in the current 50-50 Senate, with President Joe Biden set to name a replacement for retiring Supreme Court Justice Stephen Breyer by the end of February.
Vice President Kamala Harris, in a bit over a year in office, has already made 15 tiebreaking Senate votes. But those are different than breaking a tie on nominations, according to Tribe. He renewed his position Wednesday, saying he doubted he’d reach “a new conclusion” on a 2020 op-ed he wrote in the Boston Globe espousing “the Constitution does not give” then-Vice President Mike Pence “the power to break ties” when approving presidential appointments to the Supreme Court.
“I wrote that piece around 15 months ago and have not thought about the issue since,” Tribe told RealClearPolitics. “I doubt that I would reach a new conclusion upon reexamining the matter even though, given the current political circumstances, I obviously wish the situation were otherwise.”
BREYER SENDS LETTER OF RETIREMENT NOTICE TO WHITE HOUSE
Tribe’s interpretation clashes with the Biden administration’s goals of confirming a justice to replace Breyer, as the president said Thursday he plans to name “the first black woman ever nominated to the United States Supreme Court” by the end of February.
Tribe derived his position from the fact the Constitution is not explicitly clear on the Senate’s “Advice and Consent” role or whether a vice president can break a Senate tie over judicial confirmations. He wrote in 2020 that scholars have “no vice president in our history [who] has ever cast a tiebreaking vote to confirm an appointment to the Supreme Court.”
Tribe stands at odds with some conservative-leaning legal scholars.
Ed Whelan, a senior fellow for the Ethics and Public Policy Center, told the Washington Examiner the Constitution is clear that the vice president “shall have no Vote, unless [the senators] be equally divided.”
Pence voted to break a tie in the Senate over the judicial confirmation of Jonathan Kobes to the U.S. Court of Appeals for the 8th Circuit in 2018. Harris followed his precedent to break a 49-49 vote over the nomination of Jennifer Sung to the 9th Circuit Court of Appeals in November.
“That means VP does have a vote when there is a tie,” Whelan added Thursday. “There is nothing in text to support a distinction between legislation and nominations, nor am I aware of anything in Senate practice that, sensibly understood, would do so.”
I didn’t think so in 2020 when Pence was VP and wouldn’t change my mind just because Harris is the VP now, but I’d need to read what other scholars have written criticizing my 2020 view in the interim if the issue becomes relevant. https://t.co/kAx3ncfYYB
— Laurence Tribe (@tribelaw) January 27, 2022
In an email to the Washington Examiner, Tribe pointed to a tweet he posted Thursday, saying, “I didn’t think so in 2020 when Pence was VP and wouldn’t change my mind just because Harris is the VP now,” adding he would “need to read what other scholars have written criticizing my 2020 view in the interim if the issue becomes relevant.”
Josh Blackman, a law professor at the South Texas College of Law, said a vice president breaking a tie over a judicial confirmation is a “nonissue.”
“I think the vice president can break the vote, there’s nothing stopping from doing so,” Blackman said in a statement to the Washington Examiner, arguing “either the vice president does it or not.” Blackman said it would be an “unlikely” scenario even if “someone alleges the justice was improperly appointed.”
“So you have to basically litigate whether they’re properly appointed — I think it’s very unlikely to go anywhere,” Blackman added.
The White House believes Harris is entitled to break ties on judicial confirmations, deputy press secretary Andrew Bates told RealClearPolitics.
CLICK HERE TO READ MORE FROM THE WASHINGTON EXAMINER
“As the president said today, he will engage in good faith with both parties to ‘fulfill [his] duty to select a justice not only with the Senate’s consent but with its advice.’ He will seek bipartisan support for his nominee,” he said in a statement. “However, the vice president is empowered to break ties ties on judicial confirmation votes and has done so as recently as last year. Senate Republicans share this understanding, as they made clear during the previous administration.”
The Washington Examiner contacted the White House but did not receive a response.
