There was never any doubt that Democrats would fight tooth and nail to prevent President Trump from nominating a successor to the late Justice Ruth Bader Ginsburg. That some of those teeth and nails would shred the Constitution in the process is disappointing, but not altogether unexpected.
To that end, Harvard Law School Professor Laurence Tribe wrote in the Boston Globe on Wednesday that if the vote on Trump’s eventual nominee to the seat should be tied in the Senate, it would fail. In Tribe’s telling, the vice president’s tie-breaking vote does not apply to judicial nominees. It’s a very convenient epiphany, but one supported by neither the Constitution’s text nor the Senate’s historical practice.
The Veep Votes If ‘They Be Equally Divided’
The vice president has few constitutional powers or duties, but one specifically granted him is that he presides over the Senate and in the case of a tie, may vote. Article I, Section 3 tells us that “The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.”
Tie-breaking votes (sometimes called “casting votes”) are somewhat rare but undoubtedly constitutional. Instead, Tribe believes there is a distinction between breaking a tie on legislation and breaking a tie on a nomination.
This novel idea is mentioned nowhere in the Constitution’s text, and its authors knew how to create exceptions when they wanted to do so. They gave the president the power to grant pardons “except in Cases of Impeachment.” They said Congress could make federal election rules that override the states “except as to the Place of choosing Senators.” And they said the Constitution could be amended in nearly any way except that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”
How, then, can we justify creating an exception that the Founding Fathers did not? Tribe points to the Federalist Papers, the best guide to the ideas of the Constitution’s authors.
In Federalist No. 69, Alexander Hamilton sought to reassure his readers in New York that the president’s position in the proposed Constitution would be nowhere near as powerful as the king from whom they all just gained independence. He would not even be as powerful as the governor of New York. In Hamilton’s telling, New York’s governor casts a tie-breaking vote on his own nominations, while in the proposed federal government “if the Senate should be divided, no appointment could be made.”
Hamilton’s Opinion Is Not the Constitution
In the absence of a constitutional text, Hamilton’s opinion of it, obliquely expressed as it was, might be persuasive. But we have a text, and it does not say exactly what Tribe says that Hamilton says it does. Context matters.
Hamilton’s sentence is a comparison between the powers of the governor of New York and the president of the United States. So we must ask: are the nomination systems under those two constitutions similar? Did the president have a limit on his nominating power that the governor did not?
The text of Federalist 69 hints there is more going on here. Indeed, a look at New York’s 1777 Constitution bears this out. New York’s appointment process was very different from our federal system. Section XXIII of their state constitution held that the officers of the state were to be appointed by a committee of four senators elected by the legislature, over which the governor would preside.
This council of legislators made appointments with no subsequent approval needed from the legislature. Those four senators, with the governor having only a tie-breaking vote, filled nearly every government job in the state.
Or, at least, that’s what the text says. By 1788, New York had already developed some customs and controversy over this clause. Gordon Wood discusses it in his 1969 masterpiece, “The Creation of the American Republic,” and notes that debate over the appointments clause “deadlocked the [1777 state] Convention and was only settled by a unique invention, the Council of Appointment.” He calls the result of this and other compromises “a Constitution in tension.”
A custom arose that only the governor could propose appointments in the council, so even without a vote, he became quite powerful. With the governor as the nominator and tie-breaker, it only took the agreement of two of the council’s four senators to force an appointment through.
This was the strong power Hamilton compared to the federal president’s weaker power in Federalist 69. He also thoroughly criticized it in Federalist 77. “It is known that the governor claims the right of nomination, upon the strength of some ambiguous expressions in the constitution; but it is not known to what extent, or in what manner he exercises it; nor upon what occasions he is contradicted or opposed.”
This Is Also a Historical Precedent
Compared to all that confusion, the federal provision is simple and clear. If Hamilton was a bit careless in his language comparing the two, it does not detract from the point he was making: in the federal constitution, the president needs a majority of the Senate to approve his nominations; in New York, the governor needs only half of the senators on a five-person council. New Yorkers eventually tired of the mixed-up appointments clause, too; they rewrote their whole constitution to fix it in 1801, then removed that provision in 1821.
If modern scholars are able to create ambiguity in the federal document, no one else ever has. In Federalist 68, for example, Hamilton himself notes that the vice president is necessary “to secure at all times the possibility of a definite resolution of the body, it is necessary that” he “should have only a casting vote.” Nowhere in that document or any other does he say that the casting vote is limited to legislation.
Until 2018, no one seems to have imagined that there was any difference between a tie on a nomination and a tie on a vote for a bill. That year was the first time a vice president broke a tie on a judicial nomination, with Vice President Mike Pence casting his vote to confirm Jonathan A. Kobes’s nomination to the Eighth Circuit. It was largely unremarked upon in the press, at least as a constitutional matter, but it did produce one blog post and one student note that year, which Tribe cites in his op-ed.
A Big Hole in Tribe’s History
Tribe’s theory here is based on a few premises. (1) Nominations and legislation are different processes; (2) tie-breaking votes on legislation are common, but no vice president broke a tie on a judicial nomination until 2018; (3) this new practice can, therefore, be distinguished from the old and there are good, prudential reasons for doing so.
But there’s a big hole in that theory. Tribe distinguishes nominations from legislation, saying that what applies to legislation was never meant to apply to nominations. As proof, he notes that vice presidents never broke ties on judicial nominations until two years ago. Sounds significant, right?
But look closely: we started out talking of “nominations,” then focused on “judicial nominations.” Why the shift in emphasis? Does the president make other nominations? Yes, he does. Have any of them been subject to a tie-breaking vote in the past? Yes, they have.
In 1806, Vice President George Clinton, a former New York governor, cast a tie-breaking vote to confirm his friend John Armstrong as minister to Spain. His action was not considered out of the ordinary.
In 1832, the Senate deadlocked on Andrew Jackson’s nomination of Martin van Buren as minister to Great Britain, and the vice president, John C. Calhoun, cast the tie-breaking vote to resolve the issue. (Calhoun actually voted against Van Buren, because Calhoun and Jackson had by then become political enemies.) The political impact was significant—Van Buren took Calhoun’s place on the ticket that year and was elected vice president himself—but no one questioned the legitimacy of the vote.
There have been other vice-presidential votes on nominations since then. Hannibal Hamlin, Lincoln’s first vice president, used his tiebreaker to delay the nomination of a major general during the Civil War. As Tribe acknowledges, but dismisses, George H.W. Bush broke a tie on a procedural vote related to the nomination of Judge Daniel Manion in 1986. Pence broke a tie on the nomination of Betsy DeVos for secretary of education in 2017, as well. The vote produced plenty of political commentaries, but no constitutional challenge.
The Differences Between Legislation and Nominations
There is nothing in the Constitution that draws a distinction between the vice president’s role in legislation and nominations, but it is at least fair to say that they are different things. This difference makes up much of Tribe’s argument.
“When it comes to legislation,” he writes, “the vice president’s tie-breaking power affects only half of the lawmaking process: the vice president can break a tie in the Senate, but has zero say in the House of Representatives. Breaking a tie on judicial appointments, though, would give the vice president power over the entire appointments process since it is only the Senate that weighs in on such matters.”
That would be a reason to make such a distinction, perhaps, but there is no evidence that any of the Founders actually did make that distinction. And even Tribe’s “evidence,” that one out-of-context sentence from Federalist 69, does not draw a distinction between judicial nominations and other nominations. The process is the same for all nominations. The Constitution even lumps them all together, saying that the president “shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States.”
If the vice president can break a tie on a diplomatic nomination or a military nomination or a cabinet nomination, then he can do so on a judicial nomination. As far as the Constitution is concerned, the procedure is identical. To believe that they are all outside his purview, we would have to believe that these violations were well known since 1806, but that no one raised the slightest complaint against them until 2018.
Even if you accept the strained reading that creates a constitutional ambiguity, it is one that was long ago resolved. The process is what James Madison called “liquidation.” It holds that when the meaning of a constitutional term is unclear from the text but everyone has interpreted and acted upon it in the same way for a long time, the definition they gave it through their actions becomes permanent.
This is not an obscure or purely conservative idea. Justice Elena Kagan touched on it earlier this year in her opinion in Chiafalo v. Washington. “Long settled and established practice,” she wrote, “may have great weight in a proper interpretation of constitutional provisions.”
That is surely the case here. Vice presidents have been casting tie-breaking votes since 1789. They have cast them on nominations since 1806. The attempt to draw this new distinction is creative, but it is just wishful thinking.
If the vote on Ginsburg’s successor is tied, Pence will break the tie in accordance with the Constitution, no matter what the Resistance or the faculty of Harvard Law School has to say about it.