I agree with Charlie’s bottom line: There is no way that President Biden would try to appoint Vice President Kamala Harris to the Supreme Court – a nonstarter that Rich and I also discussed when we recorded our TMR podcast this morning. Though I concur with most of Charlie’s points, my reasoning is different.
First, while there is an embarrassment of riches in cataloguing Harris’s downsides, I don’t fault her for not being temperamentally suited to be a judge. Many lawyers, even exceptionally good lawyers, are not. It’s a contemplative, at times hermetic, at times small-world collegial existence. It requires a specific skillset — study, concentration, writing skills — that doesn’t play to every lawyer’s strengths (just like, to take another example, great appellate lawyers, while they might make outstanding judges, are not necessarily effective trial lawyers).
To put it mildly, if Harris has the judicial skill set, that has not been evident. More to the point, she has said she doesn’t want to be a judge. Given the lofty lawyer jobs she held in California, I’m sure opportunities to be appointed to the bench were available to her — if it was what she wanted, she’d have been a judge by now. She prefers the rough-and-tumble of politics and policy. That she’s not very good at it is a separate issue. The point is that being a judge is hard work, and if you have to work hard for 20 or 30 years, it better be something you love.
Second, I may be more confident than Charlie is that, if nominated, Harris would be confirmed — at least if it happened this year, before the new Congress is seated after the midterms. And I don’t think we’d have to cross the dubious bridge of whether she could vote for herself to break a 50–50 tie (and for what it’s worth, I do not believe the Constitution would prevent that). Biden could nominate a ham sandwich that was programmed to vote as Justice Breyer votes, and the ham sandwich would get the votes of all 50 Democrats, plus the handful of usual Republican suspects. This is why, as I discussed in a recent column, Biden is on a faster judicial confirmation pace than Trump was. There are plenty of hard-core progressive nominees, and there is not much Republican resistance.
But all of that is academic because of a third point.
The Constitution prohibits the same official from serving in two separate branches of government. If Harris were appointed to the Court, she could no longer be vice president. Biden would thus lose Democratic control of the 50–50 Senate unless and until there was a new veep to break ties.
We haven’t had an appointed (rather than elected) vice president since 1974, when Nelson Rockefeller replaced Gerald Ford (who had replaced Richard Nixon as president after having replaced Spiro Agnew as vice president). So it is worth reviewing the process. Under Section 2 of the 25th Amendment, a nominee to fill the vacant vice presidency must be confirmed by simple majority votes in both congressional chambers. Getting that done was not controversial in the mid Seventies. Democrats had overwhelming control of Congress. Post-Watergate, they were looking at a near-certain victory in the 1976 presidential election (it ended up much closer than anyone would have predicted in 1974), and the only way they could have screwed it up — after driving a by then deeply unpopular president out of power — was to be seen as purveyors of chaos. So they had an interest in projecting stability, and Rockefeller was a liberal Republican and former New York governor who had good relationships with Democrats. Congress lopsidedly confirmed him, 90–7 in the Senate and 287–128 in the House.
Obviously, the dynamic is very different today. Let’s put aside the House — even though Democrats have a slim margin, I assume Biden could get a replacement for Harris confirmed there. In a 50–50 Senate, Biden would have to rely on the Republican leader, Senator Mitch McConnell, to get his vice-presidential choice confirmed. The 25th Amendment doesn’t require the Congress to hold a confirmation vote; it requires the nominee to achieve confirmation before taking office. Why would Republicans be in a hurry to confirm Biden’s nominee? Were they to accede, they’d be handing control of the Senate back to Democrats. (Put another way, what do you figure Senate Democrats would do if the shoe were on the other foot?)
Bottom line: Biden needs Harris to remain as vice president in order to ensure continued Democratic control of the Senate, at least until the midterms. Practically speaking, he is not in a position to nominate her, even if she wanted the gig — which she doesn’t.