With Justice Stephen Breyer retiring from the Supreme Court, his replacement may need to please more than just Senate Democrats. President Joe Biden will have to worry about the palatability of his nominee for Republicans, too. With the Senate split down the middle, hopes that Vice President Kamala Harris could cast a tie-breaking vote on the nomination are in the process of being dashed. That comes not from conservatives, but Biden’s most revered progressive constitutional legal authority.
Betting on Lujan?
Ben Lujan (Photo By Tom Williams/CQ-Roll Call, Inc via Getty Images)
The U.S. Senate is evenly divided with 48 Democrats and two independents who vote and caucus with them, against 50 Republicans. So, it’s a 50-50 proposition for vote counters on a hypothetical Biden nominee, and that assumes all will be present and accounted for at the time the voting is done. New Mexico’s Senator Ben Lujan, a Democrat, had a stroke in January, and recent reports say he may be back to work in four to six weeks. It’s not a prediction a prudent person would rely on to schedule a trip to Disney, much less a Supreme Court nomination.
For the sake of argument, say Lujan returns in time to vote on Breyer’s replacement and the nominee passes muster with Democrat Senators Kyrsten Sinema of Arizona and West Virginia’s Joe Manchin. What if the result is a tie? The Constitution says:
“The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.”
Is that it? Should whatever nominee Biden chooses take office? Not so fast, according to Laurence Tribe, a retired Harvard Law professor and co-founder of the American Constitution Society, a group trying to become a progressive analog to the conservative Federalist Society. The Biden administration has used Tribe to advise on and advance policy on several legal fronts. Most recently, he was a member of the Presidential Commission on the Supreme Court of the United States. And he says Kamala Harris is not allowed to break a tie in the Senate on a Supreme Court nominee.
What Would Hamilton Do?
Tribe asserts that the vice president can get involved in legislative matters, but not the nomination process.
In 2020, after Justice Ruth Bader Ginsburg died, Tribe wrote: “Giving the vice president tie-breaking power over judicial appointments would … break the Framers’ careful constitutional structure.” He argues that on legislation, the tie-breaking power only affects half of the lawmaking process since the House of Representatives is unaffected, but the difference when it comes to appointments is critical: “Breaking a tie on judicial appointments, though, would give the vice president power over the entire appointments process since it is only the Senate that weighs in on such matters.” Tribe quotes no less an authority on the matter than progressives’ favorite Founder, Alexander Hamilton:
“In the national government, if the Senate should be divided, no appointment could be made.”
News of Justice Breyer’s retirement from the Supreme Court leaked from the White House on January 26. Meanwhile, he said he is retiring at the end of the Supreme Court’s current term, but only if his replacement is confirmed. His letter of resignation says he will leave after the court breaks “for the summer recess this year (typically late June or early July) assuming that by then my successor has been nominated and confirmed.” No doubt he wishes Senator Lujan a swift recovery.
~ Read more from Scott D. Cosenza.
