Chief Justice Roberts Is Right: An Unelected Official Should Not Cast Tie-Breaking Votes

[mystery-ak]

 Chief Justice Roberts Is Right: An Unelected Official Should Not Cast Tie-Breaking Votes
Roberts’ unwillingness to interfere in the proceedings of the trial will undoubtedly infuriate the left, but despite the hysteria, he's absolutely correct.
Erielle Davidson
By Erielle Davidson
February 1, 2020

On Friday evening, Chief Justice John Roberts announced that should a tie arise during the impeachment trial of President Donald Trump, he would not step in to break it.

Given the near-even split of the Senate along party lines, Roberts’ comments put an end to the extensive speculation that had been bubbling around Washington.

Senate Minority leader Chuck Schumer prompted Chief Justice Roberts by asking the Justice if he was aware of two instances in which Chief Justice Salmon Chase made tie-breaking votes in the impeachment trial of President Andrew Johnson in 1868. Johnson’s impeachment was the first in our nation’s history, resulting from frequent clashes between the Republican-controlled Congress and then-President Johnson, who repeatedly vetoed legislation designed to protect newly freed slaves.

Roberts informed Schumer that he was aware of Chief Justice Chase’s voting history, but that he would not be conducting himself in the same manner, should a tie arise.

Chase’s two tie-breaking votes were with regards to a motion to adjourn and a motion to end deliberations. Roberts addressed the significance of these two scenarios by stating, “I do not regard those isolated episodes 150 years ago as sufficient to support a general authority to break ties.”

“If the members of this body, elected by the people and accountable to them, divide equally on a motion, normal rule is that the motion fails. I think it would be inappropriate for me, an unelected official from a different branch of government, to assert the power to change that result so that the motion would succeed,” he explained.

more
https://thefederalist.com/2020/02/01/chief-justice-roberts-is-right-an-unelected-official-should-not-break-ties/

[Snarknado]

I think that's the "safe" position, and it would make sense for a CJ to publicly adopt that position at the outset of an impeachment trial to avoid unnecessary controversy.

[PeteS in CA]

The US Constitution is pretty clear. The Senate "tries" and votes on an impeachment. The Chief Justice presides, but he is not a member of the Senate. Therefore he cannot vote.

[Snarknado]

The US Constitution is pretty clear. The Senate "tries" and votes on an impeachment. The Chief Justice presides, but he is not a member of the Senate. Therefore he cannot vote.

Nonsense - the costitution isn't clear at all. Iin the impeachment of a lesser official the VP would "preside" as usual and could cast a tie-breaking vote, same as any other Senate vote. In Johnson's trial the CJ did cast tie-breaking votes.

[IsailedawayfromFR]

Nonsense - the costitution isn't clear at all. Iin the impeachment of a lesser official the VP would "preside" as usual and could cast a tie-breaking vote, same as any other Senate vote. In Johnson's trial the CJ did cast tie-breaking votes.

That came only after the Senate approved his role during that trial.

The CJ only had acted on tie-breakers after that happened.

[Snarknado]

That came only after the Senate approved his role during that trial.

The CJ only had acted on tie-breakers after that happened.

The point is that the constitution neither clearly allows nor clearly disallows the CJ to break a tie vote. If it clearly disallowed it, no vote by a Senate majority would change that.

[Cyber Liberty]

The point is that the constitution neither clearly allows nor clearly disallows the CJ to break a tie vote. If it clearly disallowed it, no vote by a Senate majority would change that.

That point is moot, the Senate rules apply:  If a Motion on the floor ends up in a tie vote, the Motion fails.  That was the point underlying Roberts' monologue.  A tie-breaker is unwanted, and unnecessary.

[jmyrlefuller]

Nonsense - the costitution isn't clear at all. Iin the impeachment of a lesser official the VP would "preside" as usual and could cast a tie-breaking vote, same as any other Senate vote. In Johnson's trial the CJ did cast tie-breaking votes.

And, at the time, there was no Vice President because Johnson had succeeded to the Presidency after Lincoln's death and the next-in-line under custom of the era was the President Pro-Tem... of the Senate, meaning he already voted.

So the approval of the chief justice as tiebreaker was an extra-constitutional maneuver made necessary by the failure of the Constitutional language. The 25th Amendment has closed those loopholes and thus that is no longer necessary.

[Snarknado]

And, at the time, there was no Vice President because Johnson had succeeded to the Presidency after Lincoln's death and the next-in-line under custom of the era was the President Pro-Tem... of the Senate, meaning he already voted.

So the approval of the chief justice as tiebreaker was an extra-constitutional maneuver made necessary by the failure of the Constitutional language. The 25th Amendment has closed those loopholes and thus that is no longer necessary.

By that logic, Pence could have broken the tie on witnesses and we wouldn't even be talking about it. That's obviously not the case.

[Cyber Liberty]

By that logic, Pence could have broken the tie on witnesses and we wouldn't even be talking about it. That's obviously not the case.

"Breaking a tie" is almost meaningless when the existing rules call a "Tie" a "failed Motion."  The only purpose of a tie-breaker would be to overturn the centuries-old rules on Motions.  The CJ correctly noted that would be extra-Constitutional and he would take no part in it.

Ans @jmyrlefuller is exactly correct:  The only reason the CJ broke ties in the Senate of Andrew Johnson's Impeachment trial was because the Senate was lacking its President at that time.

[PeteS in CA]

Nonsense - the costitution isn't clear at all. Iin the impeachment of a lesser official the VP would "preside" as usual and could cast a tie-breaking vote, same as any other Senate vote. In Johnson's trial the CJ did cast tie-breaking votes.

Article 1, Section 3, https://constitution.findlaw.com/article1.html

The Vice President of the United States shall be President of the Senate but shall have no Vote, unless they be equally divided.

The VP is specifically empowered to break a tie. The Chief Justice is not (also in Section 3):

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Chief Justice Chase may have voted to break ties, but he did so without the authority of the US Constitution. Since the Senate and House are given the authority by the Constitution to make and amend their own rules, it is at least hypothetically possible for the Senate to have a rule for an impeachment trial that the Chief Justice can break ties. And perhaps that was done for the Johnson trial, but the rules for Trump (and probably for Clinton) did not give CJ Roberts that authority.

[Cyber Liberty]

Article 1, Section 3, https://constitution.findlaw.com/article1.html

The VP is specifically empowered to break a tie. The Chief Justice is not (also in Section 3):

Chief Justice Chase may have voted to break ties, but he did so without the authority of the US Constitution. Since the Senate and House are given the authority by the Constitution to make and amend their own rules, it is at least hypothetically possible for the Senate to have a rule for an impeachment trial that the Chief Justice can break ties. And perhaps that was done for the Johnson trial, but the rules for Trump (and probably for Clinton) did not give CJ Roberts that authority.

On the Johnson Impeachment, Roberts actually did mention, in answering Lieawatha's stupid question, that the 18th Century precedent was not applicable.

[Fishrrman]

Roberts was correct to back away from this one.
Now and then, he does the right thing...

[Smokin Joe]

Yeah, well, what's a justice to do when both sides have the crippling dirt on him?

[IsailedawayfromFR]

Article 1, Section 3, https://constitution.findlaw.com/article1.html

Chief Justice Chase may have voted to break ties, but he did so without the authority of the US Constitution. Since the Senate and House are given the authority by the Constitution to make and amend their own rules, it is at least hypothetically possible for the Senate to have a rule for an impeachment trial that the Chief Justice can break ties. And perhaps that was done for the Johnson trial, but the rules for Trump (and probably for Clinton) did not give CJ Roberts that authority.

The Senate authorized during the Johnson trial the role of the CJ.  That is within the Constitution.