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

Never in our history has a Supreme Court nomination been confirmed by an equally divided vote among U.S. senators, with the vice president breaking the tie. But if one more Republican senator decides to vote no on President Donald Trump's nominee—whoever she may be—we may face that situation. Did the Framers of our Constitution consider such a result? Several provisions and statements of the Framers cast light on this question.

There are three provisions of the Constitution that are most relevant. Article 2 empowers the president to "nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the Supreme Court." Article 1 provides that "The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided." Article 1 also states that "Each house may determine the Rules of its Proceedings."

It is clear, therefore, that in voting on proposed statutes, the vice president is authorized to cast a tie-breaking vote. But did the Framers intend the same rule to apply when the president is seeking the advice and consent of senators to a judicial nomination? We can't know for certain, because the Constitution and Federalist Papers focus on the vice president's role in breaking ties over legislation, not confirmation.

Senate Majority Leader Mitch McConnell (R-KY) walks to the Senate Chamber at the U.S. Capitol. Stefani Reynolds/Getty

And that question raises further ones. Is the advice and consent function of the Senate different and more personal than its legislative function, thus requiring a majority of actual senators to consent to a judicial appointment? As a matter of good policy, should a justice be confirmed for a lifetime appointment without the consent of a majority of the actual senators? Would allowing the vice president to break the tie give the White House undue power in the selection of a justice by having the president make the nomination and his vice president cast the deciding vote to consent to it? Would it be proper for a senator who was on the fence to cast a negative vote in order to avoid a tie that would be broken by the vice president?

These are serious questions that should be asked and answered by every senator—and every voter. Among those on President Trump's short list is Judge Amy Coney Barrett, who is 48 years old. If she lives as long as Justice Ginsburg, she could serve more than 40 years based on a confirmation by less than a majority of sitting senators.

Until recently, the Senate never had to face these questions. Supreme Court nominees needed a supermajority under the Senate's rules and traditions. A tie vote defeated a nomination. Partisan decisions by both parties (ending the filibuster and deploying the nuclear option) brought an end to that safeguard. So now all that is required to confirm controversial and divisive Supreme Court nominees is a simple majority. But a tie vote broken by the vice president would weaken even that requirement, encouraging presidents to nominate increasingly divisive justices.

In my view, the Framers made a mistake by not requiring a supermajority for the confirmation of a justice to a lifelong term. The requirement of a supermajority—whether of two-thirds or three-fifths—would incentivize a president to nominate consensus candidates who require the votes of at least some senators from the opposing party.

Senators will now have to decide whether to take the Supreme Court further down the road of divisiveness and politicization. They have several options: go back to the requirement of a supermajority for Supreme Court nominees; require an actual majority, i.e., 51 senators, to confirm a Supreme Court nominee; or allow confirmation of a justice by a tie vote broken by the vice president whose president made the nomination.

Once President Trump announces his pick, senators will have to decide on the merits of his nominee. They will also have to decide whether the refusal of the Senate to consider President Obama's nomination of Judge Merrick Garland eight months before the 2016 election should serve as a precedent for how this nomination is treated. Finally they may have to decide, in the event of a tie vote, whether to confirm a justice who has not secured the consent of a majority of sitting senators. These are daunting decisions that will impact our nation for generations.

Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus at Harvard Law School and author of the book, Guilt by Accusation: The Challenge of Proving Innocence in the Age of #MeToo, Skyhorse Publishing, 2019. His podcast, The Dershow, can be heard on Spotify, Apple and YouTube.

The views expressed in this article are the writer's own.