May 24, 2022

Liberal legal scholar says Harris can’t cast tiebreaking SCOTUS confirmation vote

Amid reports this week of Justice Stephen Breyer’s imminent retirement from the U.S. Supreme Court, which he confirmed on Thursday, speculation began to run rampant about whom President Joe Biden might tap to fill the vacancy, and whether or not the Senate might deadlock on a nominee.

Despite some liberals’ obvious glee at the prospect of Vice President Kamala Harris casting a tiebreaking vote in the Senate to green-light Biden’s SCOTUS pick, left-leaning Harvard Law School professor Laurence Tribe dashed those hopes by opining that she simply does not possess the constitutional authority to do so, as the Daily Caller reports.

The possibility of Harris having to cast such a vote stems from the upper chamber’s current 50-50 split between Republicans and Democrats, the need for just a simple majority to confirm, and speculation that the intense partisan divide gripping the country at present could make the nomination process rather more contentious than it might otherwise be.

However, as the Daily Caller noted, Tribe stated back in the fall of 2020 his belief that “the vice president doesn’t have the power to break a tie,” commentary offered when the GOP was preparing to confirm then-Judge Amy Coney Barrett, former President Donald Trump’s third successful nominee.

“While the vice president has the power to cast a tiebreaking vote to pass a bill, the Constitution does not give him [or her] the power to break ties when it comes to the Senate’s “Advice and Consent” role in approving presidential appointments to the Supreme Court,” according to Tribe.

Though the partisan roles are now reversed, and Tribe would surely like to see Harris wield tiebreaking power in this instance, when asked for his stance on the issue this week in the wake of Breyer’s announcement, he did not see any justification for a different tack.

“I doubt that I would reach a new conclusion upon re-examining the matter even though, given the current political circumstances, I obviously wish the situation were otherwise,” Tribe said.

While he did not go so far as to cite an absence of constitutional authority for a tiebreaking vote of the sort Tribe wished could occur, Harvard Law School professor Alan Dershowitz also suggested in September of 2020 that such an outcome would be far from wise, in that it could end up “encouraging presidents to nominate increasingly divisive justices.”

Though liberal pundits have had a field day envisioning scenarios in which Harris would triumphantly cast a tiebreaking confirmation vote – perhaps even for herself – it seems likely that virtually anyone Biden selects to replace Breyer on the high court will secure sufficient Republican votes to render such assistance unnecessary.

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