Can the Vice President Break a Tie on a Supreme Court Confirmation Vote?

After Justice Ruth Ginsberg died, some argued that VP Pence could not break a tie on a SCOTUS confirmation vote for Trump nominee Amy Coney Barrett. What are they saying now? And what are the facts?

(A Senate procedural update below since this was first published)

An argument has broken out in the media on whether the Vice President of the United States can break a 50-50 tie in the U.S. Senate to confirm a Justice's nomination to the U.S. Supreme Court.

It came up in 2020 when liberal scholars, such as the often-wrong-never-in-doubt and always civil Dr. Laurence Tribe, Harvard Law professor extraordinaire, opined that no, they could not. Tribe’s Boston Globe op-ed was entitled “No hiding behind Pence’s skirt on the Supreme Court nomination; the vice president doesn’t have the power to break a tie on the appointment.” No partisan political motivations there, obviously, at least in 2020. Tribe cited not the plain language of the Constitution to support his position, but a Federalist paper (number 69) authored by Alexander Hamilton.

The usual disclaimer: I am not a lawyer nor a constitutional scholar, and I haven’t stayed in a Holiday Inn Express for many years. But as constitutional law professor and radio host, Hugh Hewitt is fond of saying, the Constitution was written chiefly by farmers to be read, understood, and debated by farmers. One does not need to be a legal scholar nor intimated by them on such matters. A plain reading of the text will usually suffice. Pay attention to what it says and what it doesn’t say.

So, let’s do that, starting with Article I, Section 3. Article I, as you recall, is about the legislative branch of government and its powers. It says:

“The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.”

The Senate’s “advise and consent” powers - whether to confirm Supreme Court particular executive and Supreme Court nominations - is found in Article II, which established the executive branch. Section 2 says:

“He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and 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, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

You won’t find anywhere in the Constitution any limitation of a Vice President’s ability to break a tie vote in the U.S. Senate. Here’s where Tribe’s Federalist 69 arguments come in. Tribe:

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.

Hamilton wrote this in March 1788 as the Constitution, which convention delegates approved on September 17, 1787, was going through the ratification process in the states.

But read Federalist 69 for yourself. Yes, Hamilton is comparing the powers of the British King to those of New York’s governor and the President. Nowhere to be found is any limitation on a Vice President’s ability to break a Senate tie vote. Hamilton is correct, and it remains true that the President has no vote in the confirmation, but the President of the Senate does in the event of a tie. Hamilton:

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, if we are to interpret the meaning of the constitution of the State by the practice which has obtained under it. The power of appointment is with us 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.

Some may note that the Vice President is an executive branch official. True enough. As stated above, they are also a legislative official, the President of the Senate. In that role, the Vice President does not serve as a surrogate or agent of the President. When the Constitution was ratified, the loser of the Presidential election became the Vice President with no obligation to carry out the President’s policies or wishes. Vice President Thomas Jefferson invested much of his time during John Adams’ presidency to undermine his policies. The process for electing a vice president changed with the ratification of the 12th Amendment in 1804. Ironically, a Vice President, Aaron Burr, killed Alexander Hamilton in a famous duel in Weehawken, New Jersey, also in 1804.

Could a Vice President reject a President’s wishes in breaking a tie? Of course. There may be political obligations to follow a President’s wishes, but no legal or constitutional one. The President cannot fire the Vice President. He would have to be impeached and convicted by the Senate for treason or other “high crimes and misdemeanors.” Even if a President considered such insubordination “treasonous,” that alone would not qualify.

The issue has even played out in movies, especially 1962’s “Advise and Consent,” based on a 1959 fiction by the late UPI capitol reporter and author, Allen Drury. Of some modern relevance was the late Betty White’s role as a Senator from Kansas - her first motion picture.

Betty White as Senator Bessie Adams of Kansas (Advise and Consent, 1962)

Spoiler alert: Vice President Harley Hudson (a former Governor of Delaware) presided over the Senate and was poised to break a tie vote on the President’s nomination of a controversial Secretary of State, Robert Leffingwell. During a roll call vote on confirmation, the Chaplain slips a note to the vice president that the President, Franchot Tone, has died. The vote deadlocked. The Vice President decides he wants to pick his own Secretary of State and opts not to break the tie. Not mentioned in the movie is that he became acting President the moment the President died, making him thus ineligible to cast a tie-breaking vote. That’s where Hamilton’s Federalist 69 is relevant.

This could happen in real life, even with a Supreme Court nomination.

The Otto Preminger produced-and-directed movie remains a personal favorite, with a star-studded cast that included Walter Pidgeon, Peter Lawford (as a Senator from Massachusetts, of course), and Henry Fonda. While many things in the movie would not happen today (Secret Service agenda bursting onto the Senate floor with the news of the President’s death), I highly recommend it, even if it is black and white.

By the way, Advise and Consent was filmed in part in what is now the Kennedy Caucus Room (325) of the Russell Senate Office Building. It so disrupted the Senate that no movie has been filmed in a Senate building or the Capitol since.

Dr. Tribe is incorrect. As much some Senate GOP staff politically may now wish it were not so, Vice President Kamala Harris is within her rights as the President of the Senate to cast a tie-breaking vote (or not) on a nominee to the U.S. Supreme Court. Vice President Pence was not successfully challenged when he cast a tie-breaking vote for Jonathan Kobes to a seat on the Eight Circuit Court of Appeals in 2018. Neither was Harris when she broke a tie to place Jennifer Sung on the Ninth Circuit Court of Appeals in 2021.

And let’s be honest. Do you think Harris would not vote to break a tie on confirming a very liberal black female nominee to a lifetime appointment on the Supreme Court? Of course, she would, no matter what Dr. Tribe advises, unless he changes his mind under the circumstances. We’re more likely to read that Tribe is “not available for comment.”

Of greater interest to me is what might happen in the event of an 11-11 tie on the Senate Judiciary Committee to report the nominee to the full Senate. That is very unlikely to occur since U.S. Sen. Lindsey Graham (R-SC) and other Republicans have consistently supported Democratic judicial nominees, including the Supreme Court. Republicans do not treat Democratic judicial nominees the way Democrats treat Republicans. Just ask Justices Clarence Thomas (“high-tech lynching”) or Brett Kavanaugh. Or defeated nominee, the late Robert Bork, whose turgid Senate confirmation process in 1987 introduced new verbs, “Borked “ and “Borking.” But if the panel deadlocked, it may require a motion to discharge the nomination from the Committee, which may be debatable (and amendable) and thus require a three-fifths vote to pass.

UPDATE: The Senate begins every new Congress with a series of resolutions that outline procedures. In February 2021, as part of a “power-sharing” agreement with an evenly divided Senate, every committee’s membership is also evenly divided. As a result, via Senate Resolution 27, Section 3, they agreed to revise the process for discharging bills and nominations from a committee with only 4 hours of debate and no other intervening motions or amendments. Thus, a motion to discharge a nominee from a committee is not subject to the filibuster during the 117th Congress. That is why now-Ninth Circuit Appeals Court Judge Jennifer Sung (she signed a letter once calling then-SCOTUS nominee Brett Kavanaugh intellectually and morally bankrupt) was eventually confirmed, despite failing in the Judiciary Committee on an 11-11 tie vote (even Sen. Graham voted no). Sen. Schumer in November moved to discharge the nomination, which passed with Harris breaking a tie vote. She was subsequently confirmed, again with the Vice President breaking a tie.

Again, an improbable scenario. I won’t waste time playing that out until we get there.

Ralph Waldo Emerson once famously said that “foolish consistency is the hobgoblin of little minds.” If Tribe holds to his view for the upcoming Supreme Court confirmation vote, he can add “hobgoblin” to his illustrious resume. Other hobgoblin titles are likely to be conferred as the confirmation process unfolds.