Leftists used to say vice presidents have no voice in Supreme Court picks
Biden says he will nominate a Black woman for the Supreme Court seat that an old White leftist is vacating. This is illegal, because it discriminates against people of other races, as well as against men, but that's not going to stop Biden. So far, all the names bandied about run the gamut from deeply racist women to, well, more deeply racist women. But what if Mitch McConnell is able to fend off a vote by rallying all 49 of the other Republican senators to vote against this person, creating a tie? Some might say Kamala would break that tie, but that leading leftist legal light, Laurence Tribe, says not so fast. Or at least, he said that waaaaay back in 2020.
In 2020, Laurence Tribe was upset that Trump had nominated, and the tiny Senate majority was set to confirm, Amy Coney Barrett. If even one senator had switched sides, there would have been a tie. William Jacobson reminds us that, when this was an issue, Alan Dershowitz noted that it wasn't entirely clear that the vice president could step in to break that tie:
It is clear, therefore, that in voting on proposed statutes, the vice president is authorized to cast a tie-breaking vote. But did the Framers intend the same rule to apply when the president is seeking the advice and consent of senators to a judicial nomination? We can't know for certain, because the Constitution and Federalist Papers focus on the vice president's role in breaking ties over legislation, not confirmation.
Laurence Tribe, one of the leftist law professors who helped reduce Harvard from turning out decent legal minds to turning out woke, leftist hacks, had no such uncertainty. He knew that, without a doubt, the Founders did not intend for the vice president to have a say in a matter that involves advice and consent rather than legislation:
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." Hamilton contrasted that rule with how appointments worked back then in his home state of New York, where the governor actually did have the power to break ties to confirm nominations to New York state offices.
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. That should matter to everyone — it certainly matters (or used to matter) to "originalists," who emphasize the importance of history when interpreting our Constitution.
I was unaware of the argument at the time, but Tribe is absolutely correct. What this means is that Mitch McConnell could, theoretically, again forestall a vote on a Supreme Court justice. This time, it would be until the Senate, as seems likely, has a Republican majority. That would force Biden either to choose a moderate candidate or to forgo appointing anyone at all.
Sad to say, I doubt that this argument will become an issue. Who thinks the Vichy Republicans (Romney? Murkowski? Collins?), when they hear the word "racist," will not instantly bow down before the Democrats and do their will? I would certainly be impressed if they resisted the power of that little word. It would be nice if they showed the backbone that Senators Manchin and Sinema showed on the filibuster.