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OPINION

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.

Vice President Mike Pence speaks at a campaign rally Tuesday at Lanconia Municipal Airport in Gilford, N.H.
Vice President Mike Pence speaks at a campaign rally Tuesday at Lanconia Municipal Airport in Gilford, N.H.Robert F. Bukaty/Associated Press

In the coming weeks, certain Republican senators running for reelection will find it convenient to tell opponents of President Trump’s Supreme Court nomination that they bear no responsibility for the damage this rushed appointment will do to the Affordable Care Act, Roe v. Wade, and other court rulings their moderate supporters care about. They will say that even if they did join Senators Lisa Murkowski of Alaska and Susan Collins of Maine in voting against confirming a precedent-shattering nominee this close to the election, the vote would be 50-50 and Vice President Mike Pence would break the tie to put that nominee on the court. They are wrong.

While the vice president has the power to cast a tiebreaking vote to pass a bill, the Constitution does not give him the power to break ties when it comes to the Senate’s “Advice and Consent” role in approving presidential appointments to the Supreme Court.

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Photo illustration by Lesley Becker/Globe Staff; Adobe; Globe file photo; John Trumbull painting

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.

Consistent with Hamilton’s understanding, as two thoughtful recent scholarly analyses have pointed out, no vice president in our history has ever cast a tiebreaking vote to confirm an appointment to the Supreme Court. If Pence tried to cast the deciding vote to confirm Trump’s nomination to replace Justice Ruth Bader Ginsburg, who died last week at age 87, it would be the first time that has ever happened. That should matter to everyone — it certainly matters (or used to matter) to “originalists,” who emphasize the importance of history when interpreting our Constitution.

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In fact, from our founding until 2018, no vice president had even cast a tiebreaking vote to confirm an appointment to a lower federal court. That nearly 230 years of unbroken historical practice ended when Pence cast the tiebreaking vote to confirm Jonathan Kobes to a seat on a lower federal court in December 2018. (Some may point to a tiebreaking vote that then-Vice President George H.W. Bush cast in July 1986, relating to the confirmation of Daniel Manion to a lower federal court, but Manion had already been confirmed by a previous 48-46 vote, without Bush participating. The tie that Bush broke was a later vote on a “motion to reconsider,” asking the Senate to undo its earlier vote confirming Manion. A vice president could arguably be permitted to break ties on votes concerning Senate procedure, even in the judicial nomination context, as long as he or she does not break ties on the ultimate confirmation vote — which Bush did not do.)

But there is much more to this than historical practice. Giving the vice president tiebreaking power over judicial appointments would also break the Framers' careful constitutional structure.

When it comes to legislation, the vice president’s tiebreaking power affects only half of the lawmaking process: the vice president can break a tie in the Senate, but has zero say in the House of Representatives. Breaking a tie on judicial appointments, though, would give the vice president power over the entire appointments process, since it is only the Senate that weighs in on such matters. A thumb on part of the scale in the legislative process is hugely different from single-handedly tipping the entire scale when it comes to confirming justices — justices who will sit in judgment over the work of the other two branches, potentially including disputes over the upcoming election itself, in which Pence obviously has the most direct interest imaginable.

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For those who care about the details, Hamilton’s view and the historical practice (up until this administration) is confirmed by the structure and drafting history of our Constitution. As a structural matter, the provision granting the vice president the power to break ties in the Senate is located in Article I, which addresses Legislative Power. By contrast, the Senate’s “Advice and Consent” power over judicial appointments appears in Article II, making it a form of power wielded by the Senate that is executive, not legislative, in nature. The vice president has some power to influence legislation, by casting a tiebreaking vote in the Senate, while the Senate has some power to influence executive appointments, by granting or withholding consent. Structurally, the vice president cannot smuggle his Article I legislative tiebreaking power into Article II to undermine the Senate’s unique Article II executive power of advice and consent.

As for the drafting history of the “Advice and Consent” clause, the Framers first considered a provision that "Judges shall be nominated by the Executive, and such nomination shall become an appointment if not disagreed to by the [Senate].” But they rejected that language in favor of the provision that ultimately made its way into our Constitution: “[t]he President . . . shall nominate and by and with the advice and consent of the Senate appoint . . . Judges of the Supreme Court.”

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That shift in language matters a lot — but only in the context of a tie. Under the first formulation, a tie favors the president, because the Senate cannot muster a majority to “disagree” with the appointment, while under the second — which became our constitutional law — a tie works against the president, because the Senate cannot muster a majority to “consent” to the appointment, leaving the nominee unconfirmed. But if the vice president is able to cast a tiebreaking vote, the difference is meaningless: The vice president decides whether the appointment goes through regardless of whether the standard is “if not disagreed to” or is “with the … consent.” Surely the Founders would not have spent their time and effort changing this language, which matters only when such votes are tied, if they understood the vice president had the power to break those ties.

The bottom line is this: Don’t let Senators Cory Gardner of Colorado, Thom Tillis of North Carolina, or any others hide behind Pence’s skirt on this issue. Every single one of them has the power, standing alone, to defeat this nomination and hold Senate Republicans to the same “rule” they applied in 2016.

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Laurence H. Tribe, the Carl M. Loeb University Professor and professor of constitutional law emeritus at Harvard Law School, is coauthor, most recently, of “To End A Presidency: The Power of Impeachment” (with Joshua Matz). Follow him on Twitter @tribelaw.