Reports revealed this week that Supreme Court Justice Stephen Breyer, 83, is planning to retire this summer, setting President Joe Biden up to nominate a successor to the bench.
Biden’s SCOTUS nominee will need to be confirmed by the evenly split Senate, however — and as if Democrats didn’t already have their work cut out for them, one legal expert says Vice President Kamala Harris can’t cast the tie-breaking vote on this one.
With 50 Democrats and 50 Republicans in Congress’ upper chamber, it’s typically left to the VP to break ties when a simple majority is needed to pass legislation. But according to the Daily Caller, even one of President Biden’s chief legal allies has said that’s not an option for Dems this time around.
VP doesn’t have that power, expert says
The argument comes from liberal Harvard law professor Laurence Tribe, who less than two years ago argued vehemently that it would be unconstitutional for a vice president to cast a tie-breaking vote on a dead-locked nominee to the Supreme Court.
Writing in a September 2020 op-ed for the Boston Globe, Tribe was referencing then-President Donald Trump’s nomination of Amy Coney Barrett to the high court bench and questions surrounding whether then-Vice President Mike Pence would be forced to cast the deciding vote.
“While the vice president has the power to cast a tie-breaking 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,” the law expert argued.
“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,” he added.
He’s not alone
So does Tribe feel the same way now that it’s Democrats who are in charge of the White House? RealClearPolitics‘ Philip Wegman asked Tribe directly this week whether he stands by his prior assertions — and Tribe didn’t back down.
“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,” Tribe said, according to RCP.
“Even though, given the current political circumstances, I obviously wish the situation were otherwise,” he added.
What’s more, Tribe isn’t alone in making this argument; fellow Harvard law professor Alan Dershowitz has made similar claims.
In an op-ed published by Newsweek around the same time that Tribe wrote for the Boston Globe, Dershowitz didn’t go so far as to say that the VP deciding the matter would be unconstitutional, but he did warn of the consequences of such a move:
Until recently, the Senate never had to face these questions. Supreme Court nominees needed a supermajority under the Senate’s rules and traditions. A tie vote defeated a nomination. Partisan decisions by both parties (ending the filibuster and deploying the nuclear option) brought an end to that safeguard. So now all that is required to confirm controversial and divisive Supreme Court nominees is a simple majority. But a tie vote broken by the vice president would weaken even that requirement, encouraging presidents to nominate increasingly divisive justices.