Yes, Kamala Harris Can Break a Senate Tie on Biden’s Supreme Court Pick

I t is always tempting to solve a political problem with a novel constitutional argument.

In September 2020, grasping at any straw he could to stop Amy Coney Barrett’s nomination, Laurence Tribe argued that Mike Pence could not cast a tie-breaking vote if three of the Senate’s 53 Republicans voted no. Tribe cited a 2018 student-law-review note by Samuel Morse (not the inventor of the telegraph) and a 2018 blog post by attorney John Langford. (It should set off alarm bells that both of those sources date from the Trump presidency.)

As it turned out, only one Republican (Susan Collins) voted no, so Barrett’s nomination passed with 52 votes. But the issue is now once again a live one, because the Democrats have 50 votes in the Senate, so in the event of a party-line vote on Justice Stephen Breyer’s replacement, they will need Kamala Harris to break the tie. Tribe, having made this argument so recently, is now caught in his own trap:

“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.”

For conservatives, it might be tempting to run with Tribe’s argument. That could be short-sighted, because we might need a vice president’s tie-breaking vote ourselves someday; but the more important question is whether Tribe was right. And while Tribe made a few legitimate points, his case does not bear close scrutiny.

The problem right up front is the constitutional text. Article I states: “The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.” The meaning there seems fairly plain. No other part of the Constitution suggests that there is any occasion on which the vice president could not break a tie, though there are times when a tie-breaking 51st vote would be useless — i.e., the impeachment of the president, the override of a veto, and the ratification of a treaty, all of which require the support of two-thirds of the chamber.

Article II provides that the president “by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States.” Article II is silent on how many votes are needed for the Senate to confirm a president’s nominees, which is why the threshold has always been left to be determined by the Senate itself. Historically, confirming a Supreme Court justice has never required more than a simple-majority vote once a floor vote is held; in 1881, for example, Stanley Matthews was confirmed to the Court by a 24–23 vote. There have been a variety of mechanisms for preventing a floor vote, notably the filibuster, but those are not constitutionally mandated.

In short, the text of the Constitution gives the vice president a vote whenever the Senate is equally divided, and does not limit that vote. There are times when the historical context gives a different meaning to the text than what it appears to say to modern readers, but in such cases, the burden of proof is on the people arguing against the plain meaning of the text. And Tribe, Morse, and Langford do not meet that burden.

First, in terms of constitutional structure, they argue that the vice president’s tie-breaking vote is placed in Article I as a way of giving the executive a small role in Congress’s power over legislation, whereas the Senate’s advice-and-consent power is placed in Article II as a legislative check on the executive power of nomination. That might carry some weight if the text itself did not point only in one direction.

Second, in terms of contemporary authority, they cite Alexander Hamilton in Federalist No. 69, which responds to critics who thought the presidential appointment power was too strong:

The President is to nominate, and, WITH THE ADVICE AND CONSENT OF THE SENATE, to appoint . . . judges of the Supreme Court. . . . There is evidently a great inferiority in the power of the President, in this particular, to that of the British king; nor is it equal to that of the governor of New York. . . .

The power of appointment is with us [in New York state] lodged in a council, composed of the governor and four members of the Senate, chosen by the Assembly. The governor CLAIMS, and has frequently EXERCISED, the right of nomination, and is ENTITLED to a casting vote in the appointment. If he really has the right of nominating, his authority is in this respect equal to that of the President, and exceeds it in the article of the casting vote. In the national government, if the Senate should be divided, no appointment could be made; in the government of New York, if the council should be divided, the governor can turn the scale, and confirm his own nomination. [Emphasis added.]

They also cite Federalist No. 76, in which Hamilton argued that the Senate’s advice-and-consent power would be an effective “check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity,” even if infrequently exercised. Hamilton went on to add that, “it will be impracticable to the Executive to corrupt or seduce a majority of [the Senate’s] members, but that the necessity of its co-operation, in the business of appointments, will be a considerable and salutary restraint upon the conduct of that magistrate” (emphasis added).

It seems hard to read so much into Hamilton’s words here as to place a qualifier on the express constitutional text. In the first quote, he is contrasting the power of the president with the power of a governor; he does not even mention the vice president. Given the original design of the Constitution, in which the vice president (before 1804) was the runner-up in the presidential election, Hamilton was not thinking — as we do today — of the vice president as simply an extension of the president’s will. In the second passage, he references a “majority” in an offhand manner, much the same way that we refer today to the Democrats as having a Senate majority when they actually just have 50 votes plus the tiebreaker. In neither passage does he so much as mention the vice president.

Third, Tribe et al. invoke history. No vice president has ever broken a tie for a Supreme Court nomination; that is unsurprising, since most such nominations have not been that close. It is also true that Pence was the first vice president ever to cast a deciding vote on a cabinet nominee (Betsy DeVos as secretary of education, in 2017) and a judicial nomination (Jonathan Kobes to the Eighth Circuit, in 2018). Historical practice carries some weight, but again, there is less here than meets the eye. The Senate’s power to confirm presidential nominees under Article II is the same regardless of the office being filled, and vice presidents have cast tie-breaking votes for other nominees before — Langford cites one source that identifies 13 such votes between 1789 and 1915. Pence also cast a tie-breaking vote for Sam Brownback as an ambassador. In each case, there was no significant objection raised. Nor was there an objection when Harris cast a tie-breaking vote to confirm Jennifer Sung to the Ninth Circuit.

Vice President John C. Calhoun even cast a tie-breaking vote against the nomination of Martin Van Buren as ambassador to Britain in January 1832, after which Andrew Jackson picked Van Buren to replace Calhoun as his running mate in his 1832 reelection campaign. Morse notes that Calhoun declined to cast a tie-breaking vote on another Jackson judicial nominee in May 1832, but Calhoun does not seem to have made a constitutional argument for that choice, and he was alienated enough from Jackson at the time that he may just have sunk the nomination by abstaining out of spite.

The rarity of these votes is also partly explained by the power of senators to filibuster nominees (which was only eliminated in 2013) or stop them through “blue slips” or other procedural devices before they can come to a floor vote.

As constitutional scholar Josh Blackman concludes, “The president of the Senate, the vice president, can cast a vote on this and on any other matter. . . . While there might be very good prudential reasons why not to do so, there’s nothing stopping it.” In light of the text and history of the vice president’s voting power in the Senate, Blackman is right. If Republicans want to stop Biden’s Supreme Court nominee, they will need at least one Democratic senator to join them.