The Briefing Room
General Category => National/Breaking News => SCOTUS News => Topic started by: Elderberry on January 29, 2022, 02:01:44 am
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Citizen Free Press 1/28/2022
(https://citizenfreepress.com/wp-content/uploads/2022/01/tribe-tie.jpg)
Laurence Tribe Says Kamala Harris Can’t Break Tie For Biden SCOTUS Nominee
Laurence Tribe, a Harvard Law professor and legal ally of Joe Biden’s administration, has stated that vice presidents do not have the authority to make a tie-breaking vote for a Supreme Court nominee’s approval in the Senate.
“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 break ties when it comes to the Senate’s “Advice and Consent” role in approving presidential appointments to the Supreme Court,” he wrote.
Asked about his past position on Wednesday, Tribe was regretful, but didn’t back down.
“I wrote that piece around 15 months ago and have not thought about the issue since,” he said in a statement to RealClearPolitics. “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.”
Tribe is not alone in his analysis. Fellow Harvard Law professor Alan Dershowitz also argued against the vice president casting a deciding vote in September 2020, though he stopped short of saying it was unconstitutional.
More: https://citizenfreepress.com/breaking/harvard-professor-kamala-harris-is-not-allowed-to-break-tie-for-scotus-nominee/ (https://citizenfreepress.com/breaking/harvard-professor-kamala-harris-is-not-allowed-to-break-tie-for-scotus-nominee/)
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Citizen Free Press 1/28/2022
(https://citizenfreepress.com/wp-content/uploads/2022/01/tribe-tie.jpg)
Laurence Tribe Says Kamala Harris Can’t Break Tie For Biden SCOTUS Nominee
Laurence Tribe, a Harvard Law professor and legal ally of Joe Biden’s administration, has stated that vice presidents do not have the authority to make a tie-breaking vote for a Supreme Court nominee’s approval in the Senate.
“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 break ties when it comes to the Senate’s “Advice and Consent” role in approving presidential appointments to the Supreme Court,” he wrote.
Asked about his past position on Wednesday, Tribe was regretful, but didn’t back down.
“I wrote that piece around 15 months ago and have not thought about the issue since,” he said in a statement to RealClearPolitics. “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.”
Tribe is not alone in his analysis. Fellow Harvard Law professor Alan Dershowitz also argued against the vice president casting a deciding vote in September 2020, though he stopped short of saying it was unconstitutional.
More: https://citizenfreepress.com/breaking/harvard-professor-kamala-harris-is-not-allowed-to-break-tie-for-scotus-nominee/ (https://citizenfreepress.com/breaking/harvard-professor-kamala-harris-is-not-allowed-to-break-tie-for-scotus-nominee/)
Good information. We'll see what happens.
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This may be the first time I have ever agreed with Lawrence Tribe. "Consent of the Senate" does not include non-Senators.
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Remember When Liberal Law Profs Said VP Can’t Cast Tiebreaker On Supreme Court Nominations? I Bet Mitch Does
Legal Insurrection by William A. Jacobson 1/26/2022
https://legalinsurrection.com/2022/01/remember-when-liberal-law-profs-said-vp-cant-cast-tiebreaker-on-supreme-court-nominations-i-bet-mitch-does/ (https://legalinsurrection.com/2022/01/remember-when-liberal-law-profs-said-vp-cant-cast-tiebreaker-on-supreme-court-nominations-i-bet-mitch-does/)
On September 23, 2020, when the issue was Amy Coney Barrett’s nomination, Alan Dershowitz argued:
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.
On that same date, liberal Harvard Professor Lawrence Tribe argued no such tie-breaking vote could be cast:
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.
You don’t have to take my word for it. Alexander Hamilton said the same thing way back in 1788, in Federalist No. 69: “In the national government, if the Senate should be divided, no appointment could be made.” Hamilton contrasted that rule with how appointments worked back then in his home state of New York, where the governor actually did have the power to break ties to confirm nominations to New York state offices.
Consistent with Hamilton’s understanding, as two thoughtful recent scholarly analyses have pointed out, no vice president in our history has ever cast a tiebreaking vote to confirm an appointment to the Supreme Court. If Pence tried to cast the deciding vote to confirm Trump’s nomination to replace Justice Ruth Bader Ginsburg, who died last week at age 87, it would be the first time that has ever happened. That should matter to everyone — it certainly matters (or used to matter) to “originalists,” who emphasize the importance of history when interpreting our Constitution.