by Michael C. Dorf
The confirmation of Judge/Justice-in-waiting Ketanji Brown Jackson to the Supreme Court is good news for the Court and the country. It also means that we don't have to face a question that has been never fully resolved: If the Senate deadlocks on a Supreme Court appointment, can the Vice President cast a tie-breaking vote in favor of confirmation?
Spoiler alert: Below I'll conclude that the answer to that question is probably yes, but along the way I'll explain why there really is no fully determinate answer. I'll then locate that fact in a somewhat broader context concerning the Constitution's ambiguities.
In September 2020, Professor Laurence Tribe wrote an op-ed in the Boston Globe arguing that the Vice President lacks the power to cast a decisive vote to confirm a Supreme Court Justice if the Senate divides equally. At the time, it looked as though a handful of Republican Senators might defect to result in a 50-50 split on the confirmation vote for Justice Barrett, but in the end, only Senator Collins did (citing the rushed timing of the nomination). Because the ultimate vote was 52-48, the issue did not arise in 2020, just as it didn't arise this time around.
However, as SCOTUS confirmation votes have become increasingly partisan, the prospect of a tie in some future case is not out of the question. And because it's just as likely to occur with respect to a nominee of either party, there's no obvious political valence to the question when considered now, behind a veil of ignorance. So let's consider.
Professor Tribe cited the drafting history of the appointments provision as well as Alexander Hamilton's statement in Federalist 69 that an evenly divided Senate produces no appointment, both of which suggest that the original meaning of the Constitution did not give the VP a tie-breaking power in appointments. Further support for that conclusion, Professor Tribe noted, comes from the fact that the tie-breaking power assigned to the VP occurs in Article I, concerning Congress's legislative powers, not Article II, where the advice-and-consent role of the Senate appears. Most fundamentally, he argued that giving the VP a tie-breaking vote on appointments would tip the scales too heavily in favor of the executive.
Those are pretty fair arguments, but to my mind they're not decisive. Hamilton clearly assumed that the VP can't break a tie on appointments, but he didn't explain what about the constitutional text led him to that assumption. In this respect, Hamilton's assumption parallels his assumption that states would enjoy sovereign immunity notwithstanding the language of Article III. Perhaps that's what he and others expected, but even most originalists these days instruct us to look to the text's meanings, not the framers' expectations.
What about the placement of the tie-breaking power? It's true it's in Article I, but it's in Article I, Section 3, which sets out the nature of the Senate as a body. If the tie-breaking power were limited to legislation, one would expect to find it in Article I, Section 7, which sets out the procedure by which a bill becomes a law. And the language is categorical: "The Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided." By its terms, the tie-breaking power appears to apply to all Senate votes.
Historical practice is not entirely clear. Prior to the Trump administration, no VP had ever cast a tie-breaking vote to confirm a cabinet secretary or an Article III judge or justice. In 2017, VP Pence did so to confirm Betsy DeVos as Secretary of Education. In 2018, he cast the tie-breaking vote to confirm Jonathan A. Kobes to the Eighth Circuit. Professor Tribe suggested that the Kobes case might be distinguished on the grounds that the stakes for a Supreme Court appointment are higher, but that contention seems hard to square with the historical, textual, and structural arguments, which, if persuasive, suggest that the VP has no tie-breaking vote with respect to any appointments. A better ground for distinguishing the Pence votes might be that they are simply too recent to count as an established practice.
Meanwhile, however, it's not clear that the unprecedented nature of the Pence tie-breaking votes in 2017 and 2018 reflected a break from a normative practice. The cloture rule long assured that a tie vote would rarely occur because only bills and nominees with super-majority support would get to the floor. And before the modern cloture rule emerged, there actually was one major historical example of a VP casting a decisive tie-breaking confirmation vote when VP Calhoun broke the tie by voting against the confirmation of Martin Van Buren as Ambassador to Great Britain. (Andrew Jackson and Van Burden would retaliate when Van Buren replaced Calhoun as VP in Jackson's second term.)
To be sure, a VP breaking a tie against a confirmation poses less of a separation-of-powers issue than one breaking a tie for a confirmation, but the important point was that the VP got to vote at all. An even split would result in a failed nomination, so the fact that the Senate in 1832 thought that the VP had a vote at all presumably meant that it thought the VP could cast a vote in favor of confirmation.
Where does all of the foregoing leave me? I think that on balance the argument in favor of the VP having a tie-breaking vote is somewhat more persuasive than against. However, I don't think that the traditional materials of constitutional law--text, original understanding, practice, precedent, etc.--definitively produce that result.
The essential problem, to my mind, is that in this respect as in so many others, the Constitution has been ill-suited to the actual government we have had ever since political parties emerged near the end of George Washington's second term. The system of checks and balances--in which institutions pursue their institutional interest--worked occasionally when the parties were weak, but in our current era of political polarization, it barely works at all.
Absent dramatic changes of the sort that President Biden's commission on SCOTUS reform did not propose, we will continue to have a dysfunctional appointments process. Since the McConnell-led blockade of the Garland nomination succeeded, I expect that going forward, presidents will almost never be able to have SCOTUS nominees confirmed when the president's party does not control the Senate. That will mean long vacancies. Allowing the VP to cast a tie-breaking vote makes it slightly more likely that an occasional confirmation will occur. For me, that factor is enough of a tie-breaker(!) to tip the balance on this question.