A bombshell retirement at the Supreme Court has all hell breaking loose.
But Joe Biden and the Democrats got some bad news.
And that’s because Joe Biden just ran into one giant Supreme Court problem that he never saw coming.
Reports surfaced that 83-year-old left-wing Supreme Court Justice Stephen Breyer intended to announce his retirement at the conclusion of the court’s current term later this year.
Liberals pressured Breyer to step down now while Chuck Schumer is still majority leader.
Even though the Senate is split 50-50 between Democrats and Republicans, Vice President Kamala Harris’ ability cast the tie-breaking vote gives Democrats control of the chamber.
Democrats fear that if Breyer waited too long the balance of power could shift to Republicans and Mitch McConnell would stage a three-year-long Supreme Court blockade to keep any seat vacant in the hopes the Republican nominee wins the 2024 election.
Now that Breyer will step down in a few months, those worries are now moot.
But according to one Joe Biden ally, the 50-50 Senate is still a problem to confirming a replacement.
Harvard Law Professor Laurence Tribe wrote an article back in 2020 outlining his belief that the Constitution does not allow the vice president to cast a tie-breaking vote on a Supreme Court nominee.
“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,” Tribe wrote.
Tribe wrote that piece in the context of a hypothetical situation of then-Vice President Mike Pence casting a tie-breaking vote to confirm one of Donald Trump’s Supreme Court picks.
Real Clear Politics White House correspondent Philip Wegmann asked Tribe if, in light of Breyer’s retirement and Democrats counting on Kamala Harris to cast a potential tie-breaking vote to confirm Breyer’s successor, Tribe still stood by his 2020 legal analysis.
Tribe reluctantly admitted that he still believed the Constitution forbid the vice president from breaking a deadlock on a Supreme Court nominee and that Kamala Harris could not cast the decisive 51st vote.
“I wrote that piece around 15 months ago and have not thought about the issue since,” Tribe wrote in a statement to 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.”
Famed Harvard Law Professor Alan Dershowitz also agrees that the vice president cannot break a tie vote on a Supreme Court nominee.
“Until recently, the Senate never had to face these questions. Supreme Court nominees needed a supermajority under the Senate’s rules and traditions. A tie vote defeated a nomination,” Dershowitz argued back in 2020. “Partisan decisions by both parties (ending the filibuster and deploying the nuclear option) brought an end to that safeguard. So now all that is required to confirm controversial and divisive Supreme Court nominees is a simple majority. But a tie vote broken by the vice president would weaken even that requirement, encouraging presidents to nominate increasingly divisive justices.”
While it is unlikely this legal analysis will carry the day – Kamala Harris will cast a tie-breaking 51st vote if necessary – Republicans still have some methods to gum up the works of the confirmation process.
The power-sharing agreement Chuck Schumer and Mitch McConnell struck in the evenly divided Senate gives Republicans some tools to slow down the process and focus public attention on an extremist nominee.
Under the rules, the Senate Judiciary Committee needs nine senators, including two from the minority, to vote the nominee out of committee.
A Republican boycott could slow the pace of the confirmation down to a crawl.
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