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10/01/2020

More on the Vice President’s Power to Break Ties
Mike Rappaport

Mike Ramsey’s argument (added to by David Weisberg) have largely covered the ground on Larry Tribe’s peculiar argument that the Vice President is not authorized to break ties when the Senate votes whether to confirm a nominee.  But I have two quick points to add.   

First, the language strongly points the other way.  Consider the full language of the clause:

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

The language of the clause gives no indication -- absolutely none – that the Vice President does not get to break ties for appointments. 

But the clause actually speaks to more than votes.  It also makes the Vice President the President of the Senate.  Does Tribe think that the Vice President is not President of the Senate during a debate and vote on confirmations?  What supports that?  Did Adams and Jefferson leave during confirmation votes? 

That also connects with another point that Tribe makes.  He says that when the Senators are tied, the Senate cannot consent to the nomination.  But if the Vice President is the President of the Senate (and thus in some respects part of the Senate), the Vice President can cause the Senate to consent when the Senators are tied.   

Second, Tribe relies upon a quote from Hamilton, which states “In the national government, if the Senate should be divided, no appointment could be made.”  Now, Mike notes, quite appropriately, that Hamilton may have forgotten that the Vice President gets to break ties.  But we need not assume that Hamilton forgot about the Vice President’s role to make sense of his remark.  It is also possible that Vice President might not be present, either because he is away from the capital or otherwise indisposed.