Professor Laurence Tribe of Harvard Law, a known advisor to the Biden-Harris regime on legal matters such as the extension of the federal eviction moratorium in August 2021, has stated that Vice Presidents do not possess the constitutional authority to cast a tie-breaking vote on Supreme Court nominations. This determination could completely scuttle Democrats’ efforts to replace Supreme Court Justice Stephen Breyer who is expected to retire in June or July 2022 at the conclusion of the current SCOTUS session. Because the Senate currently sits evenly split with only the Vice Presidential tie-breaker vote allowing them to assert a majority, the entire Democrat effort to confirm a new SCOTUS Justice hinges on Harris’ ability to cast that vote.
In a Boston Globe editorial written by Tribe on Sept. 23rd, 2020 when Senators Lisa Murkowski of Alaska and Susan Collins of Maine threatened to vote against confirming Justice Amy Coney-Barrett (they didn’t), Tribe explained his analysis,
“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.”
Beyond simply pointing to the Federalist papers (which are always a good source to get original intent), Tribe explained the duality of the role of Vice President. While the office has both Executive and Legislative powers, those powers are not permitted to intermingle.
“As for the drafting history of the “Advice and Consent” clause, the Framers first considered a provision that “Judges shall be nominated by the Executive, and such nomination shall become an appointment if not disagreed to by the [Senate].” But they rejected that language in favor of the provision that ultimately made its way into our Constitution: “[t]he President . . . shall nominate and by and with the advice and consent of the Senate appoint . . . Judges of the Supreme Court.
That shift in language matters a lot — but only in the context of a tie. Under the first formulation, a tie favors the president, because the Senate cannot muster a majority to “disagree” with the appointment, while under the second — which became our constitutionallaw — a tie works against the president, because the Senate cannot muster a majority to “consent” to the appointment, leaving the nominee unconfirmed. But if the vice president is able to cast a tiebreaking vote, the difference is meaningless: The vice president decides whether the appointment goes through regardless of whether the standard is “if not disagreed to” or is “with the … consent.” Surely the Founders would not have spent their time and effort changing this language, which matters only when such votes are tied, if they understood the vice president had the power to break those ties.”
Does The Legal Standard Change When The Party In Power Does?
In a stunning move, presaged by many commenters in 2020, Tribe took to his Twitter account and posted a half-hearted defense of his legal assertion, but one which quite obviously leaves the door open for him to flip-flop.
“I’d need to read what other scholars have written criticizing my 2020 view in the interim if the issue becomes relevant.”
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
It would seem that those detractors are lining up to give Tribe and the Biden-Harris regime legal cover. According to RealClear Politics,
“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.”
For the time being, the White House is staying quiet on the topic. When asked about it on Jan. 26th Jen Psaki told the Press, “I would have to check on the specifics,”
