The Volokh Conspiracy
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House Majority Whip James Clyburn (D-SC) believes that President Biden's nominee to replace Justice Stephen Breyer on the Supreme Court will need bipartisan support to get confirmed, according to this McClatchy report. Rep. Clyburn is also encouraging the President to nominate Judge Michelle Childs for the vacancy. Judge Childs currently sits on a federal district court in South Carolina and was previously nominated to the U.S. Court of Appeals for the D.C. Circuit. Rep. Clyburn also claims Judge Childs would have the support of South Carolina's two Republican Senators, Lindsay Graham and Tim Scott.
One reason President Biden may need Republican support for his nominee is that there are only 49 available Democratic votes in the Senate right now, as New Mexico Senator Ray Luján is currently in the hospital recovering from a stroke.
From the McClatchy report:
"I know how to count. I'm the whip," Clyburn said. "It has to be bipartisan. So I'm reaching out to the two Republicans from South Carolina. I've asked them for their support, but I'm talking to other Republicans, as well." . . .
"We only have 49 votes up here. We have 50 Democrats, with one that will be out for several weeks because of a stroke, and we cannot get it done, unless we get 50 votes," Clyburn said.
Senator Luján is expected to make a full recovery, so he is likely to return to the Senate and provide Democrats with a 50th vote in the coming weeks. Yet even then, some may wonder whether a Republican vote or two will be necessary to confirm Biden's nominee. Just as Senators Joe Manchin and Kristen Sinema have not supported their caucus on some legislative and procedural matters, there is always the possibility they will not support a polarizing nominee, and every Democratic vote could be necessary to produce a 50-50 split so that Vice President Kamala Harris can cast the tie-breaking vote.
If it looks like President Biden's nominee will divide the Senate strictly along party lines, some will argue that the Vice President cannot break the tie. Back in 2020, noted Harvard law professor Laurence Tribe advanced this position in a Boston Globe op-ed, anticipating a possible 50-50 vote on the confirmation of Amy Coney Barrett. (She was ultimately confirmed 52-48.)
From Tribe's op-ed:
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.
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. . . .
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."
According to this report, Professor Tribe is not about to change his position. "I doubt that I would reach a new conclusion upon reexamining the matter even though, given the current political circumstances, I obviously wish the situation were otherwise," he told a reporter, but he also subsequently tweeted that he would consider counterarguments made by other scholars.
For my part, I think Tribe should reconsider. I did not find his argument persuasive in 2020 (see this point-by-point rebuttal by Michael Ramsey), and do not find it persuasive today. The Constitution provides that the Vice President is the president of the Senate and that legislative body's presiding officer, and I see nothing in the Constitution to suggest the Vice President loses these capacities when the Senate exercises its advise and consent function. Moreover, Vice Presidents have cast tie-breaking votes for judicial nominations in the past. Mike Pence cast the tie-breaking vote to confirm Jonathan Kobes to the U.S. Court of Appeals for the Eighth Circuit in 2018, and Kamala Harris did so to confirm Jennifer Sung to the U.S. Court of Appeals for the Ninth Circuit this past December. So even if Tribe were correct as an original matter, it would seem it is too late to turn back now.
In the end it will be interesting to see whether President Biden nominates a jurist with an eye toward attracting Republican support. At times in his career Biden has struck a conciliatory note on judicial nominations. At other times he was among the most obstructionist members of the Senate. No doubt both experiences will influence how he makes his ultimate decision, as will whether the White House is certain the nominee has 50 Democratic votes.
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