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

According to this McClatchy report, James Clyburn (Department of South Carolina) is of the opinion that to confirm President Biden’s nomination to replace Justice Stephen Breyer at the Supreme Court, he will require bipartisan support. Clyburn also encourages the President to nominate Judge Michelle Childs. Judge Childs is currently a judge on a South Carolina federal court and was nominated previously to the U.S. Court of Appeals. Circuit. Rep. Clyburn claimed that Judge Childs would receive the support of Lindsay Graham (South Carolina Republican Senator) 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.

McClatchy Report:

I know how to count. Clyburn stated that he was the whip. It must be bipartisan. Therefore, I am reaching out to South Carolina’s two Republicans. “I’ve reached out to them and asked for their help, but I also want to talk with other Republicans.” . . .

We only have 49 votes. Clyburn explained that there are 50 Democrats with one missing for several weeks. “We cannot do it unless 50 votes.”

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. Some may be unsure if a few Republican votes will still be needed to confirm Biden’s nomination. As Senators Joe Manchin, Kristen Sinema, haven’t supported their caucus in some procedural and legislative matters, it is possible that they won’t support a polarizing nomination. Every Democratic vote may be required to generate a 50-50 split, so Vice President Kamala Harris could cast the tiebreaking vote.

If President Biden’s nomination is likely to split the Senate strictly along party lines then some will claim that the Vice-President cannot break the tie. Laurence Tribe (a Harvard Law Professor) made the same argument back in 2020. Boston Globe Op-ed in anticipation of a 50-50 vote for Amy Coney Barrett’s confirmation. (She was confirmed by 52 votes to 48.

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.

It doesn’t mean you have to believe me. Alexander Hamilton said the same thing way back in 1788, in Federalist No. 69. “In the national administration, if Senate should be split, no appointment can be made.” Hamilton contrasted this rule to how appointments were done back in Hamilton’s home state, New York. There the governor had the power to break off ties and confirm nominees for New York state office. . . .

If you are interested in the specifics, Hamilton’s view (and the historical practice) can be confirmed by the structure of the Constitution and its drafting history. 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. Article II contains the Senate’s “Advice and Consent” power to override judicial appointments. This makes it an executive power that the Senate has, and not a legislative one. Although the Vice President has the ability to affect legislation through casting a tiebreaking vote within the Senate, it is not possible for the Senate to have any influence on executive appointments. The Senate can grant or withhold consent. The vice president can’t smuggle Article I’s legislative tiebreaking power into Article II in order to weaken the unique Article II executive power, advice and consent.

The drafting history for “Advice and consent” is largely unknown. Framers considered first a clause that said “Judges shall not be appointed by the Executive. If the Executive disagrees, such nomination shall become an appointment.” [Senate].” However, they rejected the language to favor the final provision which was adopted into our Constitution.[t]He President . . shall nominate and, with the consent and advice of the Senate, appoint . . The Supreme Court’s Judges

Tribe noted that two academic studies have reached the same conclusion.

The report says Professor Tribe doesn’t plan to alter his position. According to Professor Tribe, “I don’t think I would arrive at a new conclusion upon reviewing the matter, even though, considering the current political conditions, I clearly wish it were otherwise.” He also said this to a reporter. tweetedHe said he would be open to counterarguments from other scholars.

Tribe needs to reconsider my opinion. His argument was not convincing in 2020 and I don’t think it is persuasive today. It is stated in the Constitution that the Vice president serves as President of the Senate, along with being the legislative body’s presider. There are no indications that the Vice Presidential loses his powers when the Senate uses its advice and consent functions. In the past, vice presidents have cast tiebreaking votes to confirm judicial nominees. 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. It would appear that even though Tribe is correct on the initial matter, it is too late to change now.

It will be fascinating to see if President Biden chooses a judge with the intention of attracting Republican support. Biden was a reconciliatory man at times throughout his life when it came to nominations for judicial positions. He was also one of the Senate’s most obstructionist senators at times. These experiences, and whether or not the White House has confirmed that the nominee is eligible for 50 Democratic votes, will no doubt influence his final decision.