President Joe Biden’s administration would push for Vice President Kamala Harris to cast a tie-breaking vote for his eventual Supreme Court nominee should it be necessary, White House press secretary Jen Psaki indicated Tuesday.
Reporters have pressed the White House for more than a week on whether it is constitutional for a vice president to make a tie-breaking vote in the Senate for a SCOTUS nominee. Legal scholars on both sides of the aisle, including close allies of Biden’s, have argued that the vice president cannot cast such a vote. Psaki indicated that the White House believes otherwise during a Tuesday press briefing.
“Last week I know you said you’d look for an answer on whether the vice president could break a tie on the Supreme Court vote. Have you guys come to a determination on that?” a reporter asked.
“The vice president has been the tie breaking vote for a number of judicial appointments or nominees in the past, but our intention is of course to get broad support for an eminently qualified nominee,” Psaki responded.
Psaki did not supply any examples of such votes during the briefing, and the White House did not immediately respond to a request for examples from the Daily Caller.
The White House’s apparent belief that Harris could cast such a vote is at odds with arguments from Harvard Law professor and Biden ally Laurence Tribe. Tribe argued in 2020 that then-Vice President Mike Pence could not cast a tie-breaking vote to approve Justice Amy Coney Barrett’s nomination.
“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 in the Boston Globe at the time.
Tribe reiterated Wednesday that he stands by the statement even with Biden as president.
“I wrote that piece around 15 months ago and have not thought about the issue since,” he said in a statement to RealClearPolitics reporter Philip Wegmann. “I doubt that I would reach a new conclusion upon re-examining the matter even though, given the current political circumstances, I obviously wish the situation were otherwise.”
Biden plans to announce a nominee to fill Justice Stephen Breyer’s seat by the end of February. He has also vowed that the nominee will be a black woman.