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.
Asked about his past position on Wednesday, Tribe was regretful, but didn’t back down.
White House press secretary Jen Psaki declined to comment Wednesday on anything relating to Breyer’s potential departure until the justice has formally announced his retirement.