On the eve of the Georgia Senate election that could result in an evenly divided Senate, here’s a reminder that one of the nation’s leading constitutional law scholars thinks that the Vice President cannot break tie votes in the Senate on appointments,  From the Boston Globe back in September 2020, Laurence Tribe (Harvard): No hiding behind Pence’s skirt on the Supreme Court nomination — The vice president doesn’t have the power to break a tie on the appointment.  He argued:

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.” …

Consistent with Hamilton’s understanding, as two thoughtful recent scholarly analyses have pointed out, no vice president in our history has ever cast a tiebreaking vote to confirm an appointment to the Supreme Court. If Pence tried to cast the deciding vote to confirm Trump’s nomination to replace Justice Ruth Bader Ginsburg, who died last week at age 87, it would be the first time that has ever happened.

And further:

Hamilton’s view and the historical practice (up until this administration) is confirmed by the structure and drafting history of our Constitution. As a structural matter, the provision granting the vice president the power to break ties in the Senate is located in Article I, which addresses Legislative Power. By contrast, the Senate’s “Advice and Consent” power over judicial appointments appears in Article II, making it a form of power wielded by the Senate that is executive, not legislative, in nature. The vice president has some power to influence legislation, by casting a tiebreaking vote in the Senate, while the Senate has some power to influence executive appointments, by granting or withholding consent. Structurally, the vice president cannot smuggle his Article I legislative tiebreaking power into Article II to undermine the Senate’s unique Article II executive power of advice and consent.

Originalism Blog bloggers were not persuaded.  Andrew Hyman and I expressed skepticism here, David Weisberg here, and Mike Rappaport here (calling it a “peculiar argument”).  And here is further skepticism from leading originalism scholar John McGinnis.

But I hope Professor Tribe persists with his argument (if nothing else, to show it wasn’t just a political convenience at the time).  If the Senate does end up evenly divided on an appointment and the Vice President purports to break the tie, a court challenge should be fairly straightforward.

Also I’m confident originalists will stick with their initial doubts.  To restate my conclusion:

Article I, Section 3 says that the Vice President, as President of the Senate, “shall have no Vote, unless they [the Senators] be equally divided.”  It does not say that the Vice President has this voting power only as to Article I matters.  Rather, the Vice President has this voting power  whenever the Senators are equally divided.  Article I, Section 3 is about how the Senate operates — not just as to powers in Article I, but generally.  Professor Tribe’s contrary arguments aren’t nothing (from an originalist perspective), but they aren’t enough.

Still true.

NOTEThis post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.


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