Will Biden's Supreme Court Nominee Need Republican Votes to Get Confirmed?

Supreme Court confirmation votes have become increasingly partisan. Will this create a problem in a 50-50 Senate?

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."

Tribe also noted two recent academic analyses that reached the same conclusion.

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.

Comments

[Jerry B.]

"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.)"

It'll be fun to see how Prof. Tribe tries to weasel out of this position when the Senate vote on Biden's nominee is 50-50.

[Michael P]

The strongest argument against the VP being able to break ties for nominations seems like Federalist No. 69, but that is not directly supported by the text of the Constitution, and it is contrary to actual practice. (John Calhoun's vote to defeat the nomination of Martin Van Buren as ambassador in 1832 is the rare early example of the VP needing to break a tie on a nomination.)

Of course, we have Harry Reid to thank for the current mess.

[Rev. Arthur L. Kirkland]

" It'll be fun to see how Prof. Tribe tries to weasel out of this position when the Senate vote on Biden's nominee is 50-50. "

I believe I read that Prof. Tribe recently indicated he saw no reason to alter his analysis.

What's fun is watching right-wing dopes try to keep up with the public debates.

[Dilan Esper]

Actually everyone is being principled here, including Prof. Adler.

[Rev. Arthur L. Kirkland]

I wasn't referring to Prof. Adler. I was responding to Jerry B. and the nonsense he spouted.

[Stephen Lathrop]

Whatever suspense hangs over this yet-to-come nomination, there seems little question that Professor Adler would prefer a nominee from South Carolina.

[DaivdBehar]

I support Childs. She is from the real world. She is not an Ivy indoctrinated big government zombie drone.

[Bored Lawyer]

Don't know why you say that. He is just reporting the political machinations behind the nominations.

In my mind, Childs has a major advantage over the other two that have been mentioned: diversity of experience. The other two are Ivy League products; she went to a state school in Florida, a state law school in South Carolina, worked her way up in private practice, and then a state court trial judge.

This may blow your mind, but some of us look at a person's experience, character and ideology, not race. Childs would likely be a liberal vote for most things (but these things can surprise one), but in terms of coming from outside the bubble, Childs has a definite advantage.

[Michael P]

I had essentially the exact same reaction when I read up on Judge Childs after seeing her mentioned as a nominee the left should take seriously. She seems like a respected jurist, and her background is much closer to the general public than that of Ivy League privileged lawyers.

[David Nieporent]

her background is much closer to the general public than that of Ivy League privileged lawyers.

"Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance? We can't have all Brandeises, Frankfurters and Cardozos."

[Rev. Arthur L. Kirkland]

" This may blow your mind, but some of us look at a person's experience, character and ideology, not race. "

That is how right-wingers defy the odds to choose White males when arranging nominations to the federal bench or the roster of a movement conservative blog (even in the context of the modern legal academy).

Carry on, clingers . . . but, as you should have learned by now, only so far and so long as better Americans (reasoning, educated, diverse, tolerant, modern) permit.

[Bored Lawyer]

Are you still babbling? If one is interested in appointing ideological conservatives, then the "odds" favor white males.

As for your last comment, which you enjoy repeating ad nauseum, is it your plan to repeal the First Amendment? Until you do, I do not need you to "permit" anything, you armchair Marxist.

[Rev. Arthur L. Kirkland]

If conservatism is as White and male as are the Volokh Conspiracy and Republican judicial nominees, that would indicate that Republicans are doomed to continuing defeat in the culture war.

Less White.

Less rural.

Less religious.

Less bigoted.

Less backward.

That is the American future.

And the conservative nightmare.

[Bob from Ohio]

"she went to a state school in Florida, a state law school in South Carolina"

That would be a refreshing return to tradition. Its been decades since any justice went to a public college or law school.

[Rev. Arthur L. Kirkland]

The prospect of a Black female justice has discombobulated the clingers to the point at which they claim to support public schools?

[David Nieporent]

diversity of experience.

KBJ is the one who has served as a public defender.

[Brett Bellmore]

As I've remarked before, the real problem is that this administration has a history of high profile nominees who are too radical or compromised to be confirmed.

Saule Omarova for Comptroller of the Currency. Exposed as a communist.

Neera Tanden for OMB head. History of truly vicious partisan insults, exposed despite her effort to sanitize her social media records.

David Chipman, for head of the BATF. Radical anti-gunner, and as a bonus, a history of EEOC complaints against him for racist remarks on the job. To be fair, that historically seems to have been a qualification for the position.

It's not entirely clear to me this administration is bothering to vet its nominees for anything but ideology, they shouldn't have been surprised in any of these cases.

[Sarcastr0]

Not exposed as a communist, and a defender of Trump doesn't get to complain about spikey social media.

You'd call any one the Dems put up radical. This is narrative disguised as analysis.

[Brett Bellmore]

Yes, exposed as a communist. The only thing lacking was a current membership card, hers was out of date, but her publications demonstrated she still was one.

And you can't really dispute my point, which is that this administration keeps teeing up major nominations who clearly weren't adequately vetted, and have to be withdrawn. You should not be surprised when nominees to head up entire agencies turn out to have skeletons, not in the closet, but displayed right out in the open. But it's happened to this administration three times now, in a year.

[Michael P]

She aged out of the Young Communists, but never outgrew them.

[Rev. Arthur L. Kirkland]

She's a communist.

You're a bigoted, autistic, right-wing misfit who hates modern America and wallows in silly conspiracy theories.

Everyone has problems.

[Don Nico]

You should not waste your credibility on defending Omarova.
BTW, Brett called her a communist, not a Communist.
Then you follow with "You'd call any one the Dems put up radical."
when obviously Omarova is to the left of Sanders.
I realize that arguing with Brett is sport for you, but that prize sure has its price.

[zztop8970]

what credibility?

[Sarcastr0]

Brett called her a communist, not a Communist

Redbaiting by any other capitalization, is still as dumb.

[Don Nico]

It was not red-baiting. Be realistic. That kind of ploemic just is not convincing.
The women never outgrew her training through her university years in Moscow.

[Sarcastr0]

Oh, fuck that. She fled the USSR. This kind of guilt by association is utterly despicable.

You got a problem with her content, go for it. She certainly explored some unconventional ideas (though nothing like nationalizing banks)

This McCarthy/ Bircher character assassination shit is beneath you.

[Brett Bellmore]

She left the USSR, but the USSR obviously didn't leave her.

"(though nothing like nationalizing banks)"

Nationalizing the accounts. She advocated that the government be empowered to reach directly into anybody's bank account, and add or subtract money as it saw fit. And she advocated that this power be exercised by the precise agency she was then nominated to run.

She has also advocated wage and price controls.

This was likely not an oversight on the part of the people vetting her, but instead a reason she was selected. They WANTED her sort of extremist.

[ducksalad]

Sorry for repeating what you said, I type slow and wanted to look up her exact quotes.

[ducksalad]

It's a little bit more than mere guilt by association, apparently there's a thesis she wrote titled "Karl Marx’s Economic Analysis and the Theory of Revolution in The Capital." I can't read it but given the time and place, and her reluctance to provide the Senate with a copy, one assumes she wasn't taking the against-Marx position.

Of course a fair-minded person understands that she wasn't living in free country, and a career in economics required her to write what she did. So, if she repudiates what she wrote, labeling her a communist is a bit unfair. Ex-communist is perhaps is more accurate, or if she claims she didn't believe it even when she wrote it, maybe not a communist at all. But does she claim that?

As far as giving her a high position in the Federal Reserve, there are many never-communist candidates who have no record needing repudiation. No harm in giving them preference.

Also, you make the claim "nothing like nationalizing banks". Please see her 2021 article in the Vanderbilt Law Review, available online, where she states on Page 1231:

In principle, FedAccounts can be made available as an
alternative to bank deposit accounts, upon a person’s request. As explained below, however, the more effective option would be to
transition all deposits to the Fed.

You might have some private technical definition of nationalization that allows you to write with a straight face her proposal is nothing like it. IMO private definitions lead to misunderstandings, whether intentional or not. Ordinary people might see some elements of nationalization in requiring citizens to move all their deposits to the Federal Reserve.

Maybe you were unaware of her 2021 article. If so, google The People's Ledger Omarova and you'll find the original PDF quickly.

[Sarcastr0]

Why do you think she said upon request?

[Brett Bellmore]

Why do you think giving people any choice in the matter wasn't her preferred version of the idea?

[Sarcastr0]

Because she didn't say anything about force or nationalization, you're just making that part up to service your thesis.

[Bob from Ohio]

"She fled the USSR."

So did Trotsky.

[Rev. Arthur L. Kirkland]

And a couple of downscale bloggers or two!

[TwelveInchPianist]

“ She fled the USSR.”

She was temporarily studying in the US when the USSR collapsed.

[Kazinski]

No she didn't flee the USSR, she was studying on a Soviet sponsored scholarship in the US when the USSR collapsed, her stipend was ended and she was stranded here.

But even if she had fled, Trotsky fled the USSR, it didn'take him a capitalist.

Omnarova disqualified herself from being Comptroller of the Currency by her recent academic writings here, not for her former association with the USSR.

[Sarcastr0]

I agree with your last paragraph.

The specific issue I'm taking is calling her a communist, and this guilt by association.

[raspberrydinners]

Exactly. There's no "bargaining" with the Republicans. Unless you put up their own preferred candidate they won't do a damn thing for you.

I mean, do we need to witness another Merrick Garland who Rs said they would vote for? Then he was promptly nominated and didn't even get a hearing.

If the Democrats are dumb enough to think they can work on anything in good faith with the Republicans then they're dumber than shit.

[Will Nonya]

You imply a disparity where none exist.

Just remember than anything with bipartisan support is probably bad for you.

Anything with vocal partisan support is probably also bad for you....

[Kazinski]

Got to hand it to Cocaine Mitch on that one, he was pitch perfect on handling Garland.

And Garland has totally trashed his bonefides to have been on the Supreme Court by his performance as AG.
Imagine someone who holds themselves out as worthy of being on the Supreme Court sending a letter directing the FBI to investigate parents for speaking out publicly at school board meetings.

[David Nieporent]

Imagine someone who holds themselves out as worthy of being on the Supreme Court sending a letter directing the FBI to investigate parents for speaking out publicly at school board meetings.

Imagine if Trumpkin nuts actually told the truth about anything. This is the actual memo that Garland issued. Note all the times it does not say that anyone — let alone parents — should be investigated for speaking out publicly at school board meetings.

[Brett Bellmore]

No, that's right, the memo pretended that speaking out publicly at school board meetings WAS "harassment, intimidation, and threats of violence".

[David Nieporent]

That would certainly be something not actually in the memo.

[bevis the lumberjack]

Communist? Maybe, maybe not, who cares. Some of the Republican questioning of her was pathetically silly.

What matters is that her ideas and policies were exposed as extraordinarily extremist and crazy. She may literally be the most extreme cabinet nominee I’ve ever seen. She doesn’t need to be anywhere near oversight of our banking system.

[Sarcastr0]

I'm fine with her ideas not carrying the day. Unlike some that believe a President should have wide discretion in their picks, I believe ideological checking is part of the give and take of politics.

I'm not okay with calling her a communist, especially given her past.

[bernard11]

Exposed as a communist.

Ridiculous right-wing BS.

[raspberrydinners]

You gotta forgive Bret- that's all he's got.

[Michael 2]

Omarova "exposed as a communist" is absurd. Her views were extreme enough to justify a no vote on her confirmation, perhaps, but she is literally a victom of communism not a communist herself.

As a general matter, it strikes me as exceptionally ordinary for every administration to have a few nominees who get rejected. If there's an evidence-based case that the Biden Admin is diverging from prior administrations in this regard, I have yet to see it.

[Bored Lawyer]

Do you think that "Communist" and "victim of communism" are mutually exclusive? Leon Trotsky, as well as many of Stalin's lackeys, would like a word.

[Brett Bellmore]

"but she is literally a victim of communism not a communist herself."

Spare us the theatrics. Though her parents were indeed victims, she was firmly in the nomenklatura, she didn't flee the USSR until it fell.

It's possible it's fall is what she actually fled.

[Rev. Arthur L. Kirkland]

" It's possible it's fall is what she actually fled. "

That's just the birther-infused autism talking.

[Sebastian Cremmington]

Meh, Roberts and Kavanaugh helped George W Bush steal an election and then lie us into an asinine war all the while selling us to China…can’t get more “radical” than that!

[bevis the lumberjack]

Oh, no!!! Another stolen election!!!

Don’t tell Trump, it’ll just make him crazier on stolen elections. What’s next on the crazy scale above “batshit”?

[Mike45]

"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.

Clyburn cant count. There are 50 Republicans, 48 Democrats, and 2 independents.

[Krayt]

Bernie Sanders' committee memberships count against the Democrats' totals. I don't know for the other one.

[Brett Bellmore]

There are two Democrats who like to pretend they're not. Or, alternatively, about 45 socialists who like to pretend they're not.

Either way, they vote as a block, and that's what Clyburn counts: Votes.

[bernard11]

45 socialists

Who knew the John Birch Society was still around.

[Rev. Arthur L. Kirkland]

" There are two Democrats who like to pretend they're not. Or, alternatively, about 45 socialists who like to pretend they're not. "

Does that bother you? Most of the Volokh Conspirators are movement conservatives who pretend they are libertarians. And bigots who pretend they are not. That doesn't seem to bother you.

[raspberrydinners]

Everything is rosy for Brett. When you're dumb as shit and gullible as fuck then sure, reality can be whatever you want it to be.

[Rev. Arthur L. Kirkland]

The American future is decidedly not rosy for Brett Bellmore. He already hates modern America -- because of all of this damned progress -- and it will only get worse for him as he moves toward replacement.

[Krayt]

Here's a good reason not to do it: the nominee is so iffy half the nation is hell noing.

Having said that, I have seen no reports of hidden communism or incompetency. But at least it makes it to the floor.

[ReaderY]

To be fair, that never exactly stopped the previous appointment, did if? Or the one before that. It’s been a while since there’s been a Supreme Court appointment with anything like supermajority support.

[Sebastian Cremmington]

From a political perspective it actually makes most sense for the opposing party to do as little vetting as possible because justices can be impeached. So you would hope a party would get a justice seated and then in the future something comes up about the justice while the other party is in charge and they can impeach the justice. So there is a zero percent chance we will ever see another “Souter” because both parties now have robust pipelines of potentially solid justices. So that is why what Democrats did to Kavanaugh was so stupid—the next in line is going to be more conservative than him and so just seat him and hope something bad enough to impeach him comes out when Democrats control the levers of power.

[Bored Lawyer]

That's silly. Once a justice is seated, the bar to removal by impeachment rises significantly.

[Commenter_XY]

I am very interested to hear Senator McConnell's thoughts. If he says 'nope'...it is over but for the shouting. What McConnell says, McConnell delivers.

Justice Breyer will not leave until a successor is in place. I am fine with leaving Justice Breyer on SCOTUS until the Senate is 'un-deadlocked' January 2025 with a new POTUS. With Lujan out, no need to 'rush' things. After all, all SCOTUS nominees must be fully and thoroughly vetted, and in my mind, the Kavenaugh 2018 nomination set the standard for what behavior is acceptable.

As an aside, I would like to see someone 'not Ivy league' and 'not associated at all with Washington DC' on the bench. We need more diversity on SCOTUS. 😉

[Brett Bellmore]

Lujan is not "out", he's just on medical leave, expected to make a full, or at least adequate, recovery. He's anticipating being back at work in about a month.

Technically they could even wheel him in in a wheel chair in a pinch, it wouldn't be ideal for his recovery, but he isn't mentally out of it, just partially paralyzed.

[Commenter_XY]

Hopefully, Senator Lujan recovers fully.

In the meantime, I'll be listening to Senator McConnell. He is the man that really matters here.

[Rev. Arthur L. Kirkland]

He can influence the trajectory but not likely the outcome.

(2) One or two of the sensible Republicans -- Romney, Murkowski, maybe one or two others -- might refrain from participating if Republicans attempted to take advantage of the situation. (That type of sharp practice could bother Manchin and/or Sinema, too, perhaps enabling Democrats to be more assertive in several contexts.)

(2) Sen. Lujan could resign and be replaced promptly by a Democrat (the current governor is not only a Democrat but also a relative, I believe). That would accelerate an election for the position, but Lujan won by six points and could likely expect to win again if he were to run. (He also could be appointed if the person who replaced him were to resign.)

[David Nieporent]

They are not related.

[Josh R]

Pete Wilson was wheeled onto the Senate floor from his hospital room for a vote less than 24 hours after an emergency appendectomy.

[Brett Bellmore]

And if you used your GI tract to vote, that would have greater relevance.

[ReaderY]

While it’a certainly possible Biden will wnd uo nominating someone from South Carolina, I think unless aomething new happens he will get all 50 votes in the Senate af confirmation.

I also agree that the Senatorial powers conveyed to the Vice President in Article I are general ones that apply to all actions of the Senate. In addition, the long history of practice and the long reluctance of the courts to interfere with how the Senate conducts its internal affairs count for something.

[Josh R]

McConnell cannot block the nomination without the support of at least one Democrat.

[Commenter_XY]

Team D needs 50. So nothing happens for now.

[Josh R]

That's no big deal. Breyer's letter says he won't retire until at least July, and he he can easily extend it to the first Monday in October if necessary.

[Commenter_XY]

Omarova advocated the forced nationalization of the banking system and private assets. What the hell do you call that, Sarcastr0...capitalism? Look, POTUS Biden wants commies running the banking system, that is all fine and good. The Senate did not agree. She was a terrible nominee, and did a bad job during her confirmation hearing.

The other two were....not confirmed. I am not exactly weeping about it.

[Rev. Arthur L. Kirkland]

The Volokh Conspiracy is always great for those seeking illumination of the bigoted, superstitious, obsolete right-wing perspective (and might not have much exposure to it -- for example, if they live in modern, educated, successful, advanced communities).

[Sarcastr0]

In one paper, she suggests the federal government could offer a bank account to every American through the Federal Reserve.

In another article, she calls for the creation of an agency not unlike the Food and Drug Administration, that would be charged with approving or rejecting new financial products.

You seem to be pretty misinformed about what nationalizing is, and what communism includes.

[Don Nico]

Nonsense.
Her proposal would have been a gross perversion of the Federal Reserve with the clear intention of taking over the banking system.
You seem to be very naive about this topic.

[Sarcastr0]

Clear intention?!

That's some weak tea.

You seem to be very naive about this topic.

No, I'm just not as willing to bite on redbaiting nonsense as you are.

[Don Nico]

You and your red-baiting BS.
The left seems to have no compunctions about using "fascist" and Nazi" at every turn. You never complain.
But criticize someone who who born and educated in the Soviet Communist system, who was a member of the Soviet Communist youth, and whose economic philosophy is permeated by what she learned from her Soviet mentors and that is "red-baiting."
No, It is just calling a spade a spade.

[Rev. Arthur L. Kirkland]

I, like Don Nico, refuse to wallow in political correctness.

That's why I refrain from enabling conservatives to hide behind their euphemisms, such as "traditional values," "family values," "colorblind," "often libertarian," "conservative values," "contrarian," "religious values," "libertarianish," and "heartland."

Instead, I call a vote-suppressing Republican racist a vote-suppressing Republican racist.

I call a character-deprived, gullible, superstitious gay-basher a character-deprived, gullible, superstitious gay-basher.

I call an obsolete, incel-level, right-wing misogynist an obsolete, incel-level, right-wing misogynist.

I call a half-educated, backwater immigrant-hater a half-educated, backwater immigrant-hater.

I call a deplorable, can't-keep-up backwater a deplorable, can't-keep-up backwater and a shit-rate southern law school a shit-rate southern law school.

There are a few words I can't use to describe conservatives at this blog, though, because Prof. Volokh has censored me a number of times for making fun of and mocking conservatives.

[Sarcastr0]

Yeah, I also think overuse of fascist and Nazi is bad. I believe I posted to that point this past Friday.

Your guilt by association regarding being brought up in the USSR is absolutely guilt by association. Judge people as individuals.

[Commenter_XY]

I did. She is a communist.

[Sarcastr0]

Nothing she wrote is about having the people own the means of production or anything like that.

You're calling people Communist because you disagree with them. Which is redbaiting, and has a pretty bad history.

[Brett Bellmore]

"In one paper, she suggests the federal government could offer a bank account to every American through the Federal Reserve."

I think that is the most starkly dishonest thing I've ever seen you write, and you've written some doozies.

The People's Ledger

"This Article argues that a truly systemic democratization of finance demands a structural shift at the very core of this arrangement. The Article’s central claim is that, to achieve this goal, the Fed’s entire balance sheet should be redesigned to operate as what it calls the “People’s Ledger:” the ultimate public platform for both modulating and allocating the flow of sovereign
credit and money in the national economy.

On the liability side, the Article envisions the ultimate “end-state” whereby central bank accounts fully replace—rather than compete with—private bank deposits. Making this explicit assumption helps to illuminate and explore the full range of new monetary policy options enabled by the compositional change in the Fed’s liabilities. As part of this exploratory exercise, the Article proposes a mechanism for modulating the aggregate
supply of money via direct crediting—and, in rare circumstances, debiting—of universally held FedAccounts. It shows how this unconventional mechanism, colloquially known as “helicopter money,” would empower the Fed to conduct monetary policy in a far more targeted, dynamic, and effective manner than can be done via interest rate management alone."

[Sarcastr0]

So you think an end state means nationalization immediately.

Do you think the public option was nationalizing healthcare? What about student loans and higher education?

[Ben_]

Wishing for an end state of nationalization isn’t advocating nationalization?

[Brett Bellmore]

I think she was advocating what she freaking advocated. That she didn't plan on arriving there on day one didn't mean she didn't advocate getting there. She wasn't mincing words about what she wanted.

And, yeah, a lot of the people advocating a "public option" were open about intending it to end up being the only option by the time they were through.

[Sarcastr0]

SHE WAS NOT ADVOACATING THAT.

Jesus Christ, quit assassinating her character to get you anti-Communist jollies.

[Brett Bellmore]

Cut off the gaslight, Sarcastro: The burner has gone out, and the gas is killing your remaining brain cells.

Anybody can read her academic papers, (Except her thesis on Marx, of course, she won't let anybody see THAT.) and authoritarian insanity runs all through them. Wage and price controls, the government getting votes on the boards of private companies, nationalizing everybody's savings.

I'm not assassinating her character, for all I know she raises rescue dogs and helps little old ladies across the street. I'm pointing out her insane ideology. Which is so widely documented that the simple fact she was nominated tells us worlds about the nominee selection process in the Biden administration.

[Sarcastr0]

Her papers do not advocate for Communisms. As DMN points out below, your quote isn't even what the paper is advocating for, which you tried to hide.

Introducing a public option is not nationalizing an industry.

Don't jump on the gaslighting train. I don't take you for bad faith, don't take me for it either, even if you think I'm wrong.

[David Nieporent]

exploratory exercise

Weird how you forgot to boldface these words.

[ragebot]

The elephant in the room is none of the potential nominations I have seen mentioned are what I would call a game changer. While I assume all of them will be a reliable liberal vote none of them seem to have the horsepower to get any conservative leaning justice to change their vote. As Shapiro has pointed out there is an Indian man who might have that kinda horsepower and a liberal leaning friend of mine told me yesterday the obvious solution is for Sri Srinivasan to claim he now identifies as a black woman and meets Bidens self imposed qualifications for the nomination.

[Brett Bellmore]

There's nobody with that kind of "horsepower", because you can't force somebody to change their mind by overwhelming brilliance, if the reason they disagree with you to begin with isn't a mistake or bad reasoning, it's that they don't agree with your ideology.

You can point out where somebody has made a mistake based on their own premises, but having different premises isn't particularly persuasive.

[Rev. Arthur L. Kirkland]

You can't reason with bigotry, belligerent ignorance, or superstition.

Better Americans will arrange improvement at the Supreme Court with expansion, not by suddenly persuading right-wing justices to prefer reason to superstition, tolerance to bigotry, progress to backwardness, science to dogma, inclusiveness to insularity, education to ignorance, etc.

[JJJSSS]

This is one of the very few times I've ever agreed with Brett Bellmore. When the Court is relatively balanced ideologically, you get lots of weird combinations because a single justice will have a bee in their bonnet about something- NFIB v Sebelius, which caught Roberts' fancy for whatever reason, or McGirt v Oklahoma and Gorsuch's textualism. But when it becomes an effort to try and appeal to two Justices' idiosyncracies, it becomes much harder to get a successful combination.

[ReaderY]

I son’t think it’s really a question of horsepower here. It could be argued that Biden would do better with a more moderate candidate who would be more likely to sometimes persuade the 3 more centrist conservatives on thw court.

But just as Nixon did when making Rehnquist a lone voice on the court that almost nobody listened to and did a lot of solo dissents when appointed. and just as Bush I did with Thomas, Biden can decide to nominate someone who he thinks will help shape a future majority, not a present one.

[ragebot]

Have to give props to my hommie Rehnquist. The old chief is best described in one of his quotations 'no judge ever complained about a brief being too short'. Not to mention he could grind out one page decisions better than any chief I remember. In contrast to Roberts who has lost street cred after what may be his two most famous votes on Obamacare both being and not being a tax which in both cases preserved it as being constitutional.

In hindsight both Thomas and the old chief look better now than earlier. On the other hand both Kagan and Sotomayor have done nothing to distinguish themselves as anything but reliable liberal votes who both seem to have at least minor health issues that may endanger their longevity on the SC. Gorsuch on the other hand seems to be on the rise as a memorable justice. Too earlier to tell about the other two Trump nominated judges but so far I have seen nothing to bash them over.

[Rev. Arthur L. Kirkland]

So . . . a bigoted thumb goes up for clinger justices, and down for liberal-libertarian mainstream justices?

[John F. Carr]

Is there any precedent for resolving disputes over whether an appointee was actually consented to by the Senate? I would predict that a variant of the enrolled bill rule applies: if the presiding official of the Senate signs the consent paperwork and the President signs the commission, the courts will not get involved in procedural questions.

[Michael 2]

My guess (though I am no lawyer much less a constitutional scholar) is that it would be resolved by Article I, Section 5 "Each House may determine the Rules of its Proceedings".

If the Senate says (with 51 votes, including the VPs if needed) the VP can break a tie on a Supreme Court nomination, then the VP can break a tie on a Sumpreme Court nomination.

[Michael 2]

What would be the characteristics of a nomination 'with an eye towards GOP support?'

It is easy to identify the opposite - if Biden wanted to choose someone who would galvanize GOP opposition I think Sherrilyn Ifill would be an obvious choice.

I don't know what reasons Republicans would have for opposing a Ketanji Brown Jackson or Leondra Kruger or (based on comments from L Graham) a J Michelle Childs beyond the mere fact that it is a Democratic nominee.

[raspberrydinners]

Except that's all they need- it's a Dem nominee.

We've seen it all throughout- Dem ideas are a no go for them. That is their singular uniting plank on their otherwise empty platform other than sucking Trump off.

[Roger21]

“…two late to turn back…”

Kudos if that’s an intentional misuse of “two” because there were “two” past examples of the VP breaking a tie for an appointment. Otherwise I’d say fix the typo.

[Rev. Arthur L. Kirkland]

I figured it was deftly played.

[Ben_]

No Republican should vote to confirm until after Kavanaugh gets a public apology from every Senate Democrat involved in smearing him.

[raspberrydinners]

Old Boof should never have been there. Nor should Barrett, nor should Gorsuch.

Acting as if the Dems are the ones ruining the process is laughable. Rs make up whatever reason to do whatever the fuck they want and equating Dems questions on Kavanaugh's integrity (which very much were warranted) is laughable.

But what do I expect from fascists.

[ragebot]

You need to look up the history of the verb bork. Not much question Bork was one of the best legal minds of his era and what the dems did to him was really the start of mostly total party line votes on SC nominations.

[bernard11]

You need to look up the actual facts about Bork, and ignore the RW mythology.

Not much question Bork was one of the best legal minds of his era

Says who? He was a radical authoritarian who should never have been nominated.

[Sarcastr0]

Not much question Bork was one of the best legal minds of his era

Say you've never read Bork without saying you've never read Bork.

[Brett Bellmore]

Oh, bullshit. The nomination failed because he offended Republicans, not Democrats.

He was defeated 58-42, two Democrats voted for him and SIX against. Sure, the 52 Democrats against were enough by themselves to sink the nomination, but he'd have gone down in flames even if Republicans had a small majority with that many Republicans opposed to him.

Setting aside his belief that parts of the Constitution he didn't like were "ink blots", he had a serious attitude problem.

[Brett Bellmore]

Six Republicans against.

[Commenter_XY]

The penultimate moment was an exchange between Senator Byrd and Nominee Bork, regarding congressional intent. That exchange sealed Bork's doom. I am 100% convinced of that.

[benji]

Bork wasn't the start, he just flamed out the most dramatically.

[Brett Bellmore]

Nominees tend to do that when they're made of gasoline and white phosphorus.

[Ben_]

Cool. All Republicans should vote no on every appointment then.

[GKHoffman]

It seems a bit early to count votes. There is as yet no nominee, and of course no hearing before the Senate. Republicans who let Sonia Sotomayor slip through the process without much of a fight are not likely to object to a more qualified, and seemingly sane, black woman. Unless Biden nominates another small c communist, I predict a bipartisan consent.

[Brett Bellmore]

That's my expectation: Unless he nominates a lunatic, his nomination will sail through, because it's not after all changing the balance of the Court, so there won't be huge pressure on Republican Senators to deny him the nomination, and it takes a lot to get the Democrats to break unanimity.

All I'm doing is cautioning that, based on past examples, he very well might nominate a lunatic.

[JJJSSS]

It's also worth noting that the Democratic Senator most likely to break ranks (Manchin) actually seems to have strong beliefs that Presidents should, outside of nominating a lunatic, get their choices for judges through.

[Brett Bellmore]

Yup. Like I said, it's all down to whether the nominee is a lunatic or otherwise grossly unqualified, and given past performance, you can't actually rule that possibility out, Biden HAS nominated people who couldn't muster 50 Democratic votes several times already, and for reasons that any serious effort at vetting would have exposed.

Though I tend to think that, given the likelihood that they'll lose the Senate this fall, and in as much as Breyer isn't resigning until the SCOTUS term is over, that they're going to moderate their usual go for broke approach this time, since they probably won't have time for a do-over if their first nominee goes down in flames.

So, the nominee will absolutely be black, female, and left-wing, but probably will NOT be a flaming communist, or have a social media history of calling white colleagues "crackers", or be a member of the Black Hebrew Nationalists, or anything controversial like that.

[Commenter_XY]

Wrong....they will absolutely go for broke. Who wouldn't?

[Brett Bellmore]

Somebody who expects to only have one shot at this, and then having to settle for somebody genuinely more moderate if they miss.

[Alpheus W Drinkwater]

I completely agree, particularly since this will not upset their 6-3 majority. They have no reason to fire up the opposition base with a fight that doesn't really change anything. There is politician more pragmatic than than McConnell.

[Bored Lawyer]

That's basically my take. This makes little practical difference, so not worth the fight.
Which, if it comes true, reinforces my point, criticized by many here, that the main reason Merrick Garland was not confirmed is that he was replacing Scalia. Had he been replacing Ginsburg, he would be on the Court now.

[Joe_dallas]

Adlers' comment - "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"

Its doubtful that Biden is even aware of those past experiences

[Jimmy the Dane]

Biden's making his own political problem here. He could have framed the nomination as something other than the primary and sole qualification that he was going to entertain was race and gender. He could have used the standard leftist line "court should look like America" and at least put a few other candidates of varying protected classes on his short list. Yeah we all know that is theater, but saying the quiet part out loud didn't do him any good here.

Also, if you actually believe in diversity as related to the demographics of America, Biden ought to be nominating an Asian or Indian to the court. African Americans are already fairly represented by Justice Thomas (I know the left does not think he is actually black, but still...) This is just further proof the left doesn't actually care about "equality" (or whatever buzz word that is these days) but using those characteristics to keep votes in their corner.

[Brett Bellmore]

He promised Clyburn a black woman, but Clyburn would have been content with him nominating one, he didn't have to be up front about everybody else on his short list being there for show.

He did it this way because he genuinely doesn't see anything wrong with race and sex quotas.

[Alpheus W Drinkwater]

I realize that a President actually keeping a campaign promise must be shocking to a Trump supporter.

[Jimmy the Dane]

I think you would be highly disgruntled had Trump kept all of his campaign promises...

[Alpheus W Drinkwater]

Ha ha you're probably right!

[Rev. Arthur L. Kirkland]

" Biden's making his own political problem here. "

If riling America's dwindling fringe of poorly educated, roundly bigoted, stale-thinking, backwaters-inhabiting clingers is a political problem . . . sure!

[Bob from Ohio]

While Childs being non-Ivy is a huge plus, it really doesn't matter.

Any nominee will be pro-abortion, anti-gun and on the left side of any social or political issue. Dems vote in lockstep, have for decades.

[Sarcastr0]

Which based on your worldview, you should admire.

[Ben_]

But don’t call it bad faith

[Sarcastr0]

I believe the Justices on the right rule as they do because their view of the Constitution aligns with the ends the party likes.

Funny how many here seem to do the same.

The politics if illegitimacy is so much more active on the right than the left, it's not surprising how many on the right don't much care about democracy if Democrats win.

[Brett Bellmore]

"I believe the Justices on the right rule as they do because their view of the Constitution aligns with the ends the party likes."

That's obviously true on both sides. But what this sort of statement elides is the notion that the Constitution actually has an independent meaning, and those "views" can be in agreement with it, or in conflict.

[Sarcastr0]

If it has an independent meaning, you don't have special access to it.
We have an institution of specialists charged with doing that.

Discarding what they say to replace with your own take says a lot about your lack of humility, and little about the actual Constitution.

[Ben_]

Words and phrases have plain meaning notwithstanding the opinion of so-called specialists.

Blind deference to "specialists" isn’t humility. Free people think for ourselves. Did you really mean to come out against that?

[Not Unreasonable]

A quick comment on the argument that prior, tie-breaking votes of the vice-president provide historical proof that the sitting vice-president can do so under the Appointment Clause.
Simply because two former vice-presidents voted to break ties in the appointments—or purported appointments—of two federal judges is not precedent that the appointments are valid under the Appointments Clause. Instead, the Supreme Court has, on more than one occasion, struck down judicial (or quasi-judicial) actions taken by persons improperly appointed in violation of the Constitution. Instead of considering the fact of the appointment as proof of the legitimacy of the appointment, the Court looked to the Constitution. The Court minimized any disruption or uncertainty to the actions of the tribunals by applying the de facto officer doctrine which allows previous, unchallenged actions to stand while invalidating actions timely challenged before the tribunals themselves. Lucia v. Sec. & Exch. Comm’n., 138 S.Ct. 2044 (2018); Ryder v. United States, 515 U.S. 177 (1995). I assume that no litigants have challenged the validity of the appointments of Judges Kobes and Sung or Prof. Alder would have mentioned that.
Michael P. mentioned another tie-breaking vote. Vice-President Calhoun’s vote to break a tie and deny appointment of Martin Van Buren as ambassador carries no weight. Since there was a tie, Van Buren could not be confirmed. Calhoun’s vote was spurious.

[Bob from Ohio]

"the Court looked to the Constitution"

The Constitution says that the VP can vote when there is a tie. Period. No appointments exception. No judge appointments exception. No exceptions.

[F.D. Wolf]

One reason the issue likely did not arise often historically, besides the obvious relatively uncommon occurrence if a tie vote, but, until 2013, a Senate minority would have been able to filibuster a close, presumably controversial, nomination.

Nevertheless, older precedent exists. Famously, in January 1832, Vice President Calhoun, who by that point had become a political enemy of President Jackson, cast two tie-breaking votes against Jackson's nomination of Martin Van Buren as minister to Great Britain (where Van Buren was already serving under a recess appointment). It seems probable that Calhoun's allies in the Senate actually engineered the tie vote to give Calhoun the very opportunity to cast that vote. No one on either side seems to have expressed any issues with the constitutionality of the vote. Additionally, we have an 1862 tie-breaking vote by Vice President Hamlin to postpone the nomination of a major general.

The only evidence I have seen to suggest that the VP can't break a tie on a nomination is the cited throwaway comment by Alexander Hamilton, which is hardly compelling, and even less so in context. I just don't see why a nomination would differ from legislation. Even on ostensibly closer questions, such as matters of Senate organization which do not even involve the executive, historical practice has seemed to back the tiebreak vote for "all questions". For example, in 1829, VP Calhoun cast the tiebreaking vote on selection of a Senate chaplain. The vote seems to have passed without issue, but when VP Millard Fillmore did the same in 1850, it did engender some debate among senators over its propriety, but they ultimately decided they were bound by the 1829 precedent.

[Not Unreasonable]

But as I remarked earlier, Calhoun's votes to break ties were unnecessary since there had to be a majority of senators in favor of the appointment. Thus, his votes were meaningless.

I'm not necessarily saying the VP can't break a tie in favor of a candidate, only that the historical votes by the VPs mentioned carry no weight.

[benji]

Calhoun seemingly could have voted to break the tie in Van Buren's favor no?

[Syd Henderson]

Even if the vote had been already decided, the fact that he cast the vote and the Senate didn't protest means it does carry some weight.

"Simply because two former vice-presidents voted to break ties in the appointments—or purported appointments—of two federal judges is not precedent that the appointments are valid under the Appointments Clause." How not? It certainly indicates the Senate believes so, and they make the rules for their own house.

[ragebot]

The Senate can make it's own rules as long as they pass constitutional muster. No way the SC would allow a rule that black members of the senate could only have 2/3 of a vote counted as one example.

[Brett Bellmore]

So what? There's simply nothing in the Constitution that says they can't let a VP break a tie in a confirmation vote, and past practice is that they do let them do it.

Hell, the courts won't even demand that they have a quorum to conduct business, or vote on the same language in both chambers to call a bill passed, you think they're going to stop THAT?

[ragebot]

The question of what the Constitution says about the VP breaking ties on nominations looks to be unclear to me. While it has happened in the past it has never been settled by the courts.

While the current dem/pub disagreements are significant Calhoun/Jackson may have disagreed more. In any case both times are two of the biggest splits between rival political parties. Jackson ranks high in nominating six SC justices five of which were confirmed the first time around. Tany was confirmed the second time he was nominated as Chief Justice and while he was favorably reviewed for his early he is mostly remembered for the Dred Scott decision.

Given the current dissention I would not rule out a court case being filed (even if it was done by a fringe group) given the current conservative SC makeup.

Bottom line is with the current divisions and a lack of common ground between the dems and pubs nothing would shock me.

[Kazinski]

I wouldn't mind seeing Biden nominate Childs and have her confirmed with some Republican support.

I'm one of those that think a president with a Senate Majority should have smooth sailing for qualified picks. With a 6-3 conservative majority I don't think it's going to have much effect on the court.

But in Washington's current atmosphere it wouldn't surprise me if some in the administration and congress would see it as disqualifying for a nominee to be able to get any GOP support.

[Commenter_XY]

Absent any disqualifying legal or ethical issue, the POTUS is entitled to pick the people he wants. I do not see judicial philosophy as a sole disqualifying issue. Obama was right: Elections have consequences. I did not exactly weep when POTUS Trump got three nominees onto SCOTUS; not going to start now just because POTUS Biden is doing the nominating.

[KeithK]

I can't imagine that a Republican would be willing to cast the deciding vote for a justice nominated by the other party in the current climate. It's one thing to play at bipartisanship and vote along with the other side when they have the votes to confirm. Maybe someone could get away with abstaining in a vote pairing measure. But the blow back for actually confirming a liberal justice would be beyond intense. And for what? Just tell Schumer that he shouldn't schedule a vote until Lujan returns. Thankfully reports say that he is supposed to make a full recovery.

[Brett Bellmore]

There are several Republican Senators retiring, and a couple who will likely be retiring soon even if they want to stay, and so would be happy to give their (former?) party the finger. So, if the Democrats actually needed the vote, they would stand a good chance of getting it.

But, yes, no reason to suppose he won't be back in the Senate by the time there's a vote.

[Cal Cetín]

Bipartisanship usually occurs when Republicans and Democrats in Congress set aside their petty differences and unite against their common enemies - the people and the Constitution.

[OtisAH]

Maybe! But they won’t be there.

Expect 50 gop senators presenting t some combination of:

The nominee is too extreme.
Reverse Discrimination!
The process is moving too quickly.
We want to help but we just can’t with This Nominee.
And maybe, for old time’s sake, “We can’t approve this close to an election” while maybe adding in a “there’s precedent” with extra smirking.

And it’s no worse than 3-1 odds we hear the following from Manchin, Sinema, and/or one or more heretofore unheard from jittery Red State dem(s):

The nominee is too divisive.
Any vote to approve must have gop votes.
The process is too rushed, there’s plenty of time to do this right.

[Bubba Jones]

Let's get real.

If Schumer and Biden say that Harris gets to cast a tie breaker, then SCOTUS won't have jurisdiction to say otherwise.

[Cal Cetín]

Well, I guess someone has to speak up for VP Harris. It seems clear she can break ties even with nominations.

Art. I(3): "The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided."

I presume that means what it says, and it's not really ambiguous enough to create a legal gap which needs filling (through federalist papers, etc.).

If this clause didn't apply to the advice and consent function, then the VP couldn't even *preside* over such debates, much less cast the deciding vote in them.

[Liberty Lover]

McConnell will either set out or vote for Biden's nominee. What a GOP senator! (sarc)