On Tuesday, White House press secretary Jen Psaki hinted that the Biden administration believes Vice President Kamala Harris would be legally able to cast a tie-breaking vote for President Joe Biden’s Supreme Court nominee.
The Senate is currently split 50-50, with the Vice President as the tie-breaking vote on bills that only require a simply majority.
Psaki made her remarks during the White House’s daily briefing.
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Psaki Hints
The White House has been asked the question several times, given the razor-thin majority the Democrats hold in the Senate.
The question is not so simple, and there’s disagreement about whether or not it’s possible. Some legal scholars have argued that the vice president cannot vote in such a scenario. Psaki’s comments show that the administration doesn’t agree with that assessment.
A reporter asked, “Last week I know you said you’d look for an answer on whether the vice president could break a tie on the Supreme Court vote. Have you guys come to a determination on that?”
Psaki replied, “The vice president has been the tie breaking vote for a number of judicial appointments or nominees in the past, but our intention is of course to get broad support for an eminently qualified nominee.”
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Harvard Law professor and Biden ally Laurence Tribe doesn’t believe Harris casting such a vote would be legal. In 2020, Tribe said in the case of future Justice Amy Coney Barrett’s nomination, then-Vice President Mike Pence could not cast a tie-breaking vote to confirm.
Tribe wrote in the Boston Globe, “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.”
While it certainly seems that Democrats have the votes they need to confirm Breyer’s replacement, it’s worth remembering that Lawrence Tribe, a favored lawyer in the Biden WH, argued that VPs don’t have power to break a tie on SCOTUS appointments. https://t.co/pZbSaKpmYW
— Philip Melanchthon Wegmann (@PhilipWegmann) January 26, 2022
Can It Be Done?
Tribe said he still is sticking with this position.
Tribe told RealClearPolitics, “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 even though, given the current political circumstances.”
“I obviously wish the situation were otherwise,” he added.