Laurence Tribe, a Harvard Law professor and legal ally of President 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.
News of Justice Stephen Breyer’s intent to retire broke Wednesday, though the 87-year-old has not formally announced the move. The news puts Biden in the position of having to pass a nominee through a 50-50 Senate, raising the question of whether Harris can cast a tie-breaking vote.
Tribe has previously advised the administration on at least one questionable legal move: the extension of a federal eviction moratorium in August.
Tribe previously weighed in on the issue in September of 2020, when he argued “the vice president doesn’t have the power to break a tie” on an appointment. Tribe made the statement as Republicans were gearing up to approve former President Donald Trump’s final SCOTUS nominee, then-judge Amy Coney Barrett.
“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.