Laurence Tribe: I think I stand by my view that the VP can't break a Senate tie on confirming a judicial nominee

AP Photo/Carolyn Kaster

I love the fact that this guy is leaving himself some wiggle room to change his mind about a piece of legal scholarship he wrote less than 18 months ago. He’d set some sort of land-speed record for partisan hackery if he ended up flipping, concluding that Mike Pence couldn’t cast a tiebreaking vote for Amy Coney Barrett but Kamala Harris can cast a tiebreaking vote for Biden’s forthcoming SCOTUS nominee.

I wrote about Tribe’s 2020 op-ed yesterday. He argued that there’s a meaningful difference between the VP’s power to break 50/50 ties on legislation, which is stated in Article I of the Constitution, and the Senate’s power to advise and consent to judicial nominees, which is stated in Article II. Alexander Hamilton didn’t believe the vice president could break ties on appointments, Tribe noted.

Now that it’s Democrats rather than Republicans who need to get a nominee through, does Tribe stand by his reasoning? Philip Wegmann of RCP reached out to him to ask. The answer: An emphatic “probably.”

Republicans are currently searching for any weapon to push back on whomever Biden nominates to the high court. Some influential commentators might flip their positions on the issue, but not Tribe. He told RealClearPolitics on Wednesday that he doubts he will change his mind just because the political winds have shifted.

“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,” he said, before adding with some regret, “Even though, given the current political circumstances, I obviously wish the situation were otherwise.”

That’s the Democratic dilemma on judicial nominees in microcosm. Trying to game the rules to benefit their nominees, then lamenting that they gamed them when the GOP uses that precedent to its advantage. No problem for Biden, though, right? The frontrunner to fill Breyer’s vacancy, Ketanji Brown Jackson, was confirmed 53-44 to the D.C. Circuit last year. As long as the same three Republicans who voted for Jackson at the time opt to vote for her again, the questions about what happens in the event of a tie are academic,

But hold on. Let’s consider who those three Republicans were. One is Lisa Murkowski, who’s up for reelection in November and facing a Trump-backed challenge from the right. Murkowski famously declined to support Brett Kavanaugh in 2018, angering conservatives. If she votes to send Jackson to the Court after standing in Kavanaugh’s way, that would be a difficult position to message in a red state like Alaska.

Susan Collins also voted for Jackson. But Collins opposed Amy Coney Barrett’s confirmation on procedural grounds, believing that the GOP should have followed the Merrick Garland precedent from 2016 and held open the seat in an election year to let voters decide which party should fill it. Collins also disliked that Barrett’s nomination was rammed through quickly, precisely in order to thwart any Democratic arguments that Biden should rightly fill the seat if he won on Election Day. As it happens, Democrats are now promising that Breyer’s replacement will also be moved quickly through the Senate, with Biden expected to choose a nominee on a faster timetable than Obama followed in choosing Garland.

How is Susan Collins, procedural traditionalist, feeling about that? Not great, it turns out:

Democrats aren’t willing to take a “fair amount of time” with this. Every day they delay confirmation is a day on which a Democratic senator could die or Joe Manchin could switch parties or Mitch McConnell could contrive some ingenious procedural solution to block confirmation. They want to get this done yesterday. Which may be a nonstarter for Collins.

If so, the sole Republican left who voted for Jackson last year would be … Lindsey Graham. And Democrats do not want to be in a position where avoiding a 50/50 tie depends entirely on Lindsey Graham resisting enormous pressure from Trump and the MAGA base. Granted, Graham has an admirable and principled tradition of supporting nominees from both parties so long as they’re well qualified to do the job, irrespective of their politics. But he’s never had to cast a “deciding” vote on a Supreme Court nominee, especially with Trump bellowing at him from Mar-a-Lago that he’s a cuck if he votes yes.

So maybe we’re headed for a 50/50 tie after all.

But if we are, Democrats have an ace up their sleeve — namely, that Republicans confirmed one of their own judicial nominees in 2018 on a 50/50 vote with Mike Pence as the tiebreaker. That was Jonathan Kobes, whom Trump nominated to the Eighth Circuit Court of Appeals. Kobes was rated “not qualified” by the ABA, which cost him some Republican support. But not enough to keep him off the bench once Pence stepped in to cast the 51st vote in his favor.

If the Senate does deadlock on Biden’s nominee, in other words, the GOP would have a hell of time arguing that the president’s nominee can’t be seated after Trump’s nominee was. And even if the matter went to court, it’d be easy enough for SCOTUS to decide that, contra Tribe, the VP does get to cast a tiebreaker on nominees after all. Article I, Section 3 of the Constitution reads, without caveats or exceptions, “The Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided.” That’s the same section that lays out the basic operations of the Senate, including age requirements, the number of senators from each state, and so on. Tribe argued in 2020 that because the VP’s tiebreaking power is listed in Article I, it shouldn’t apply to an Article II matter like appointments. But it’s child’s play to defeat that argument: Since Article I defines the fundamentals of how the Senate should proceed, it’s logical to assume that the VP’s tiebreaking power should apply to all business taken up by the chamber.

With apologies to Alexander Hamilton, of course.

In lieu of an exit question, read procedural expert James Wallner on why a hot take circulating yesterday that claimed Democrats will need 60 votes to confirm a nominee if the Senate Judiciary Committee deadlocks just isn’t true. They only need 51. And Democrats are going to get 51, almost certainly without needing Harris to cast a tiebreaker. Jazz is right about the politics here and about the relatively low stakes of replacing a liberal justice with another liberal. A few Republicans will end up throwing Biden a bone.