Kavanaugh was confirmed by a vote of 50-48. Pence would return to the Senate later that year, however, and vote to confirm Jonathan Kobes to sit on the U.S. Court of Appeals for the Eighth Circuit.

It was the first-ever tie-breaking vote to confirm a federal judge, and it was controversial. Shortly after news broke of Breyer’s retirement, scholars returned to the debate. 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…

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.”