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Laurence Tribe Gets the VP’s Vote Wrong

Those opposed to putting Amy Barrett on the Supreme Court are making legal arguments to thwart her confirmation that are so unsound that they show the need for more justices like her. Exhibit A is an essay by Harvard Law Professor Laurence Tribe, arguing that if the Senate is tied 50-50, Vice President Pence cannot as a matter of constitutional law cast the decisive vote. The nomination is so closely contested that if his view were accurate, it could be the difference between confirmation and rejection.

Tribe is the most famous constitutional law professor of his generation, educating thousands of students at Harvard Law School on how to interpret the Constitution. But if this article is an indication of what he has taught, a constitution construed by his acolytes will go down the memory hole, to be replaced by a fundamental law that is shaped to meet the demands of the left-liberal moment. The influence of law professors like him on generations of law students shows why it is all the more necessary to confirm justices to the Supreme Court who will help create a legal culture in which the Constitution is read according to its text as originally understood.

The most relevant text in this case is obvious and clear: “The Vice President . . . shall be the President of the Senate but shall have no Vote, unless they be equally divided.” Professor Tribe never actually quotes this language, no doubt because it is hard to deny what any reasonable reader would believe it means: The Vice President has the authority to break ties whenever the Senate is equally divided.

Against this clear language, Tribe’s first argument relies on Federalist 69 where Alexander Hamilton contended that the Constitution gave the President less power than the British monarch and the governors of some states. Hamilton noted that the New York Governor’s appointment power was greater than the President’s because the Governor has a casting vote if the council that votes to confirm a candidate is divided, but the President has no such vote under the Constitution: “In the national government, if the Senate should be divided, no appointment could be made; in the government of New York, if the council should be divided, the governor can turn the scale, and confirm his own nomination.”

The key language proffered by Tribe is: “if the Senate should be equally divided, no appointment can be made.” But this language does not directly contradict the Vice President’s power clearly outlined in Article I. Without the Vice President’s vote, it is true that if the Senate is equally divided no appointment can be made. A 50-50 vote defeats a nomination. To be sure, in the situation of the New York State Constitution, the Governor would always be expected to vote for his nominee, so that situation of equipoise may not arise. But one must remember that at the time the Constitution was written the President and Vice President did not run as a ticket. The Vice President was the candidate with the second most electoral votes. Indeed, the Vice President was as likely to be an opponent of the President as he was to be an ally. This was the case with Vice President Thomas Jefferson during the presidency of John Adams. Thus, it was not at all clear a Vice President would intervene on behalf of the President.

In any event, even if Hamilton assumed that the Vice President could not break ties in cases of appointments, a single sentence from one of the Founders, no matter how illustrious, cannot overcome the plain meaning of the text. Even if one believed in original intent, one person does not show the collective intent of the Convention and, as Chief Justice John Marshall observed of a legal interpretive rule at the time, the spirit of the document is to be “collected chiefly from the words.”

Tribe then relies on the drafting history of the Appointments Clause. He notes that “the Framers first considered a provision that ‘Judges shall be nominated by the Executive, and such nomination shall become an appointment if not disagreed to by the [Senate].’” He then points out that the language that appeared in the Constitution as enacted is different from this initial language: “[t]he President . . . shall nominate and by and with the advice and consent of the Senate appoint . . . Judges of the Supreme Court.”

The kind of result-oriented spin that Tribe tries to give to our Constitution is precisely what sound originalism will thwart.

Tribe argues that this reformulation shows that the Vice President cannot vote on Supreme Court appointments, because the only difference this change in language would make is that nominations would fail on a tie vote, since the first version required the Senate to affirmatively disagree with the President to kill a nomination. But this claim is not right. In the first version, if the Senate did not vote at all after a reasonable time, as sometimes the Senate does not do, the nomination would appear to be approved, but it would fail under the actual language of the Constitution, which requires affirmative consent. Indeed, if we are engaging in speculation, the probable reason the language was changed was that the first version was less clear and would have led to questions about what exactly would happen when the Senate did not vote at all after a reasonable time. But the larger problem with Tribe’s analysis is that his speculation on the reasons for a drafting change in another clause provides no legal justification for departing from the clear meaning of the constitutional provision that grants the Vice President a casting vote when the Senate is divided. Certainly, nothing in the Appointments Clause as enacted undermines that meaning.

Finally, Tribe also ignores practice: Vice Presidents have cast votes on appointments for almost 200 years without, to my knowledge, anyone raising these concerns. It is true that the early votes were on executive branch appointments, not judicial appointments, but that difference is irrelevant to his principal arguments. Tribe tries to conceal the fact that his analysis would apply to executive as well as judicial appointments by putting ellipses in his quotation of the Appointments Clause rather than quoting it in full. The Appointments Clause, however, does not just concern justices of the Supreme Court, but “Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States.” Thus, the practice of Vice-Presidents casting votes on executive appointments would be relevant to judicial appointments as well, even if the Clause on the Vice President’s voting were ambiguous and needed to be liquidated by practice.

The first instance of a Vice-President using a casting vote on appointments was in fact a famous and consequential incident in American history. Vice President John C. Calhoun voted against the appointment of Martin Van Buren to be Ambassador to the United Kingdom. To be sure, that vote was strictly speaking unnecessary, because the vote would have been otherwise tied on the motion for confirmation and would have thus defeated the nomination. But the vote had great symbolic significance. Van Buren’s many opponents in the Senate, including Daniel Webster, arranged the vote to be a tie so that Calhoun could cast his vote to make the rejection more emphatic and politically damaging. And Calhoun was a main rival of Van Buren to succeed Andrew Jackson. Calhoun was delighted with the prospect: Van Buren’s defeat at his hands “will kill him, sir, kill him dead. He will never kick, sir, never kick.”

Calhoun was wrong in his prediction. The raw politics and ambition behind Van Buren’s defeat actually increased sympathy for the “little magician.” He replaced Calhoun as Vice President for the 1832 election and became Jackson’s successor. But Calhoun’s act was so politically important and controversial that it is hard to believe that constitutional doubts would not have been raised about the authority of this casting vote on an appointment had anyone entertained them.

The kind of result-oriented spin that Tribe tries to give to our Constitution is precisely what sound originalism will thwart. And that is the kind of jurisprudence a Justice Barrett will almost certainly provide.

Reader Discussion

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on October 08, 2020 at 11:16:27 am

Succinct essay disposing of Tribe's grasping stretch of logic.

But the essay does not mention the obvious authority refuting Tribe: the fact that Article I Section 3 makes no exception to the Vice President's blanket authority to break a tie vote in the Senate. Nor dose it distinguish between Senate votes on legislation and Senate votes on nominations, including judicial nominations. The Founders were smart men, most of them lawyers, who knew how to write unambiguously, how to delegate specific limited powers, how to make exceptions to powers granted, and how to reserve specific powers for a specified constitutional authority. They did all of this and did so clearly in drafting our constitution. They did none of it in Article I Section 3.

Conservatives must face the reality that for the post-constitutional Democrat Party, of which Tribe is a leading ideological light (a Bukharin of his day and political station,) the constitution is long-dead, and they killed it. Yet they fear a resurrection, that the constitution might yet be raised from the dead by 5 originalists. Hence, as a Lazarus-preventative, Tribe and the rest of the mainstream-Left legal academy, acting on behalf of the Democrats, will forever put forth desperate, grasping rationalization and illogic in opposition to the public meaning of the constitution as it is written.

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paladin
on October 11, 2020 at 12:48:49 pm

Paladin, let us not forget that when it comes to personhood, it is, in fact, “a clash of absolutes”, but not due to Professor Tribes’s illogical denial of The Law Of Noncontradiction. One can know through both Faith and reason, that a human person can only conceive a human person, and thus every son or daughter of a human person, can only absolutely be, in essence, a human person.

Wherever there exists a denial of the fact that the definition of human person is “human individual”, and thus every human individual Has Been Created By God, and brought into being, at the moment of conception, equal in Dignity, while being complementary as a beloved son or daughter, there you will find an error in Substantive and thus Procedural Due Process Law.

https://www.nationalreview.com/news/sen-chris-coons-amy-coney-barrett-has-extreme-disqualifying-views-confirmation-push-constitutes-court-packing/

Woe to all of us, when affirming the self-evident Truth that a human person can only conceive a human person, a son or daughter, who, not being a place or thing, can only absolutely be a wholly human individual, is considered to be extreme.

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Nancy
on October 08, 2020 at 13:01:24 pm

McGinnis gets this right. Had followed these discussions at Orig Blog and elsewhere. Amazing - the power of the ellipse, isn;t it? Tribe would appear to believe that the "absence" of text, albeit a contrived absence, is more powerful than the text itself.

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gabe
on October 08, 2020 at 13:51:32 pm

Amazing is the power of first principles and the destruction that occurs when we deny these first principles.
God, The Most Holy And Undivided Blessed Trinity, Through The Unity Of The Holy Ghost, Is The Author Of Love, Of Life, And Of Marriage, And Thus The Author Of Our Unalienable Right To Life, To Liberty, And To The Pursuit Of Happiness. Whenever we have denied this self-evident Truth, we have suffered both individually and as a Nation, because “when God Is Denied, human Dignity disappears”.

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Nancy
on October 08, 2020 at 13:58:51 pm

Nancy:

It would appear that modern theory loses God in the ever present and ever popular "ellipses" - how convenient for the "humanists, n'est ce pas?

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gabe
on October 08, 2020 at 15:24:46 pm

True, but then again, even a humanist can become “Surprised By Joy”, if they but repent and orient themselves to The Power And Glory Of Life-affirming and Life-sustaining Salvational Love, God’s Gift Of Grace And Mercy, Through The Unity Of The Holy Ghost, As Love, which is always rightly ordered to the inherent personal and relational Dignity Of the persons existing in a relationship of Love, can make all things new again.

“No one can come to My Father, except Through Me.”

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Nancy
on October 10, 2020 at 19:28:15 pm

Absence of evidence can sometimes, but not always, be useful in demonstrating the evidence of absence.

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R2L
on October 11, 2020 at 14:51:31 pm

Tribe hits the nail on the head, whether intentionally or not, on the absurdity of originalism. It is like religious fundamentalism which demands unquestioning loyalty to the scriptures. The problem is that the scriptures can and do contradict each other.

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Curious
on October 08, 2020 at 16:57:59 pm

Ok, give it up for McGinnis. I find this argument pretty compelling.

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nobody.really
on October 08, 2020 at 22:07:36 pm

It’s sad to see Larry Tribe these days. He’s like a major league pitcher who could once throw 100-mph fastballs on the corners, and today is throwing slow curves in the dirt. He’s lost it and doesn’t have the good sense to step back from public life before he totally trashes his reputation.

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Douglas Levene
on October 09, 2020 at 07:27:37 am

Prayers for Amy Coney Barrett and her beautiful family.

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Nancy
on October 10, 2020 at 03:09:00 am

There was a time when Harvard Law professors looked with horror on novel views, and novel constructions of the Constitution. They had not the ambition to be the authors of any new plan of interpreting the theory of the Constitution, or of enlarging or narrowing its powers by ingenious subtleties.

The Senate Manual references the United States Constitution (see Senate Manual, Senate Document 113–1, section 1711.10 p.1201) when dealing with this power. "The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided." Senate rules neither expand or qualify this power. The power is given to the President of the Senate [the Vice President] to break ties, and also to keep the representation among the States equally. The President of the Senate is a national office, not a state office.

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Michael Connors

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

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