Back in 2020, when Republicans had a narrow majority in the Senate, there was talk about whether the Vice President could break a tie on a Supreme Court nomination if the Senators were equally divided.  Now that the issue is more immediate with a 50-50 Senate, here’s a quick revisiting of the issue.

In this essay, Professor Laurence Tribe argued, largely on originalist grounds, that the Vice President’s tiebreaking power extends only to legislation, not to appointments.  In a point-by-point response, I found his arguments unpersuasive, concluding:

In sum, it’s an interesting and worthwhile argument, but I think it fails to overcome the simple text.  Article I, Section 3 says that the Vice President, as President of the Senate, “shall have no Vote, unless they [the Senators] be equally divided.”  It does not say that the Vice President has this voting power only as to Article I matters.  Rather, the Vice President has this voting power  whenever the Senators are equally divided.  Article I, Section 3 is about how the Senate operates — not just as to powers in Article I, but generally.  Professor Tribe’s contrary arguments aren’t nothing (from an originalist perspective), but they aren’t enough.

(Other originalist scholars at the time agreed, see Mike Rappaport here (calling it a “peculiar argument”) and John McGinnis here.)

On re-reading, I am (with all due modesty of course) even more convinced that I’m right.  The text does not even hint at the distinction Professor Tribe proposes.  He cites various originalist sources purportedly in support (which I examined in my response linked above) — but the short of it is that no one in the founding generation made anything close to Professor Tribe’s distinction.

Nor, so far as I can tell, does he have any meaningful post-ratification practice on his side.  It may be true that no early Vice President ever broke a tie on an appointments matter (though I’m not sure about that), but that proves little unless the issue actually came up.  That is, we would need to see a situation where an early Vice President had an opportunity to break a tie on an appointments matter and the Vice President refused on constitutional grounds, or at least someone objected on constitutional grounds.  I’m pretty sure nothing like that ever happened (Professor Tribe doesn’t claim it did).

In sum, I think there’s no plausible originalist argument against vice-presidential tiebreaking on appointments.  I wonder about a living constitutionalist approach, though.  The Vice President has a very different character now from the Constitution’s original design, thanks to the Twelfth Amendment and the development of the party system.  In the original design, the Vice President was the runner-up in the presidential election, and so presumably a rival of the President (as Jefferson was to Adams).

At minimum, the Vice President was not an automatic vote for the President’s nominee.  Now, however, the Vice President is part of the President’ team.  Giving the Vice President a tiebreaking vote amounts to giving the President a tiebreaking vote.

That’s a lot more power for the President than the framers envisioned, and perhaps (depending on one’s view) more than we want.  Shouldn’t the situation be reevaluated in light of modern circumstances?  I’m unsure how a living constitutionalist deals with that argument.

RELATED: Dan McLaughlin at NRO, Yes, Kamala Harris Can Break a Senate Tie on Biden’s Supreme Court Pick (relying on textual and historical grounds, and also reporting that Professor Tribe is [sort of] sticking with his position).

A FURTHER THOUGHT:  People say that originalism can’t resolve modern controversies, or that it’s no more than a cover for Republican party policy preferences.  This strikes me a (yet another) important counterexample.

NOTE: This article was originally posted at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

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