On Tuesday, White House press secretary Jen Psaki hinted that the Biden administration believes Vice President Kamala Harris would be legally able to cast a tie-breaking vote for President Joe Biden’s Supreme Court nominee.
The Senate splits 50-50 at the moment, with the Vice-President acting as the tiebreaker vote for bills that require only a simple majority.
Psaki made her remarks during the White House’s daily briefing.
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Due to the small majority that the Democrats have in the Senate, this question has been repeatedly asked of the White House.
The question is not so simple, and there’s disagreement about whether or not it’s possible. Some lawyers have suggested that vice presidents cannot vote in this scenario. Psaki’s comments show that the administration doesn’t agree with that assessment.
A reporter asked, “Last week I know you said you’d look for an answer on whether the vice president could break a tie on the Supreme Court vote. Have you guys come to a determination on that?”
Psaki replied, “The vice president has been the tie breaking vote for a number of judicial appointments or nominees in the past, but our intention is of course to get broad support for an eminently qualified nominee.”
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Harvard Law professor and Biden ally Laurence Tribe doesn’t believe Harris casting such a vote would be legal. In 2020, Tribe said in the case of future Justice Amy Coney Barrett’s nomination, then-Vice President Mike Pence could not cast a tie-breaking vote to confirm.
Tribe wrote in the Boston Globe, “While the vice president has the power to cast a tiebreaking vote to pass a bill, the Constitution does not give him [or her]The power to end ties, when it comes to the Senate’s “Advice and Consent” role in approving presidential appointments to the Supreme Court.”
It seems as though Democrats are able to vote for Breyer’s replacement. However, remember that Lawrence Tribe was a favorite lawyer in the Biden WH and argued that VPs do not have the power to end a tie over SCOTUS appointments. https://t.co/pZbSaKpmYW
— Philip Melanchthon Wegmann (@PhilipWegmann) January 26, 2022
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Tribe stated that he is still sticking to this position.
Tribe told RealClearPolitics, “I wrote that piece around 15 months ago and have not thought about the issue since. I doubt that I would reach a new conclusion upon re-examining the matter even though, given the current political circumstances.”
“I obviously wish the situation were otherwise,” he added.