Introduction
Article I of the Constitution vests the Vice President with the power to vote in the Senate in the event of a tie. Textually, this power is not subject to any additional qualifications. However, there are reasons to believe that the Framers intended this tie-breaking power to have certain practical limits, specifically in the context of confirming Article III judges. This essay argues that concerns about the separation of powers, the differences between legislation and the confirmation of presidential nominees, anti-majoritarianism, and the forsaken sixty-vote threshold for Supreme Court nominees all militate toward a prudential limit that restricts the Vice President from casting a tie-breaking vote to confirm a Supreme Court Justice.
I. History of the Vice Presidential Vote and the Roles of the Senate
A. Vice Presidents Past
Given its relatively infrequent use since 1789, there has not been much scholarship devoted to the use of the vice president’s tie-breaking authority. With the exception of Vice Presidents John Adams (twenty-nine votes), John C. Calhoun (thirty-one votes), and George M. Dallas (nineteen votes), the power has been used quite sparingly.1 From 1875 onward, vice presidents have rarely cast tie-breaking votes.2
Historically, the exercise of this authority was not controversial because its use was confined to procedural and legislative matters—matters on which everyone agreed the vice president had the power to cast tie-breaking votes.3 Tensions did arise, however, when the tie-breaking authority was used in non-procedural and non-legislative matters.4 But even in most of these instances, the authority and propriety of the vice president to cast tie-breaking votes was not questioned.
With respect to presidential nominees, from 1975 until recently, sixty votes were needed for the Senate to end a filibuster and move to a vote.5 As a result, such nominations never resulted in a tie which the vice president could break. Prior to 1975 two-thirds of Senators were needed to invoke cloture.6 Thus, until Vice President Mike Pence cast a tie-breaking vote to confirm Secretary of Education Betsy DeVos, no vice president had cast a tie-breaking vote on a presidential nomination since 1862, when Vice President Hamlin voted to postpone cloture on the nomination of a Major-General of Volunteers.7 However, even this was not a substantive vote, and had “no measurable effect” on the ratification of the appointment a month later.8 Prior to that, in 1832, Vice President Calhoun cast a tie-breaking vote that defeated the nomination of Martin Van Buren as Minister to Great Britain.9
Besides a tie-breaking vote from then-Vice President George H.W. Bush on a motion to reconsider a nominee for a district court judgeship (who was eventually confirmed by a vote of forty-eight to forty-six), no tie-breaking vote has touched upon the nomination of an Article III judge.10
The fact that the vice-presidential power to cast tie-breaking votes has been used so sparingly—and virtually never on serious matters—is consistent with the intent of some, albeit a minority, of the Framers of the Constitution. On September 7, 1787, the Constitutional Convention debated the role of the vice president.11 Three of the Framers, Mr. Elbridge Gerry of Massachusetts, Mr. Hugh Williamson of North Carolina, and Colonel George Mason of Virginia voiced their opposition to the proposed role of the vice president as ex-officio President of the Senate for various reasons.12 Mr. Gerry saw this role for the vice president as tantamount to “[putting] the President himself at the head of the Legislature.”13 Mr. Williamson commented that the office of the vice presidency was not even needed, but “for the sake of valuable mode of election.”14
Colonel Mason’s remarks were more nuanced. He said that endowing the vice president with the powers that come from being an ex-officio president of the Senate “[encroaches] on the rights of the Senate; and . . . [mixes] too much the Legislative & Executive, which as well as the Judiciary departments, ought to be kept as separate as possible.”15 Mason also objected to either house of Congress being given the power to make appointments, but simultaneously was averse to vesting “so dangerous a power in the President alone.”16 He suggested that a “privy Council,” consisting of six members chosen by the Senate, provide the advisory role for presidential appointments, except those of ambassadors.17 Although this view was ultimately rejected, it underscores the concern that many Framers had with allowing the vice president to be involved in nominating people to executive and judicial positions and also possibly voting on their nominations.18
B. The Senate Goes Nuclear
Senate Republicans first toyed with the idea of shutting off debate on judicial nominees with only fifty-one votes when Senate Democrats announced plans to filibuster the nominations of Charles W. Pickering, Jr. and Miguel Estrada for federal appellate judgeships.19 In the end, seven Senators from each party, dubbed the Gang of 14, struck a deal to end the Democratic filibusters in exchange for Republicans not invoking the nuclear option.
On November 21, 2013, in response to three blocked nominations for the D.C. Circuit Court of Appeals, Senate Democrats changed the rules of the Senate and deployed the nuclear option20 so that judicial nominees, cabinet secretaries, and other presidentially-nominated positions could advance to confirmation votes with a simple majority vote for cloture, rather than the sixty-vote supermajority that had been commonplace since 1975.21 This rule change did not affect nominees to the Supreme Court, but many saw the change as a Pandora’s box.22
Relying on the precedent set by Senate Democrats, Senate Republicans predictably applied the new rule to the nomination of Supreme Court Justices in April 2017 for the nomination of now-Justice Neil Gorsuch.23 But even then, the vice president did not cast a tie-breaking vote because three Senate Democrats joined Senate Republicans to confirm Justice Gorsuch with fifty-four votes.24 However, the nuclear fallout produced the grotesque democratic disfigurement—far from historic practice and what the Framers imagined—that we see today, where the vice president is able to vote to confirm cabinet nominees and ambassadors, and could theoretically cast the tie-breaking vote for lower court and Supreme Court nominees.
C. The Vice President Today
Current Vice President Michael Pence has exercised his Article I authority in numerous novel ways. As of the publication of this essay, Vice President Pence has cast tie-breaking votes in the Senate on nine separate occasions.25 In his first vote, he broke the tie to confirm Betsy DeVos as the Secretary of Education26 amidst serious questions about her qualifications and fitness for the position.27 This was the first time a vice president had ever invoked their Article I authority to confirm a member of a President’s cabinet.28
Vice President Pence also cast tie-breaking votes to confirm one of President Trump’s nominees for an ambassadorship,29 as well as a nominee for a position in the Office of Management and Budget.30 Not since Vice President Alben W. Barkley, from 1949 until 1952, has a vice president cast so many tie-breaking votes in the Senate in such a relatively short period of time,31 and Barkley did so for much less consequential matters.
The resurgence of the vice-presidential vote is likely an outgrowth of partisanship in the Senate, but this resurgence raises a host of concerns that merit evaluation. The possibility of vice presidents wielding this power more frequently in connection with the Senate’s executive business requires an evaluation of the proper exercise of this constitutional power.
D. The Three Roles of the Senate
In Federalist No. 68, Alexander Hamilton briefly touched upon the issue of the vice president’s power to vote in the Senate. One justification Hamilton gives for the power is that, “to secure at all times the possibility of a definite resolution of the body, it is necessary that the [vice president] should have only a casting vote.”32
The Constitution entrusts two distinct responsibilities to the Senate, namely legislative and executive business.33 The Senate’s legislative business involves passing resolutions, and its executive business includes votes on presidential nominees and treaties. By discussing resolution of the body, and not executive business, Federalist No. 68 can logically be read to suggest that the vice-presidential power to cast tie-breaking votes was intended to extend only to the Senate’s legislative duties and not its executive duties, and thus not to confirmations of presidential nominees.34 This is consistent with the Framer’s fears that, through the vice president, the Executive branch could cast the deciding vote on its own nominees. Further, the separation-of-powers concern with the vice president casting tie-breaking votes in executive matters is intensified when it comes to judicial nominations because the independence of the judiciary is involved.
Historically, when the Senate was equally divided on a judicial nomination, the vice president did not cast a deciding vote, and the nominee was rejected. On May 22, 1832, the vice president was presiding in the Senate.35 In executive proceedings that same day, the Senate considered the nomination of James G. Bryce as judge of the United States for West Florida, and although the forty-four Senators present were equally divided on the question, Vice President Calhoun did not cast a decisive vote for the President’s nominee.36 Perhaps Vice President Calhoun wanted the nomination to fail, as he did the Van Buren nomination,37 yet this is apparently the only instance where the Senate was equally divided on a judicial nomination. Notably, the matter was resolved without the vice president voting, against the grant of judicial power, because the nominee did not have enough votes to be confirmed.
The Constitution also entrusts to both the Senate and the House the responsibility to determine the rules of their proceedings.38 This is neither legislative nor executive business, but that which does not “relate to measures of legislation by Congress or to reciprocal or common business of the two Houses, or . . . to any particular proceeding of the Senate . . . .”39 In this non-substantive Senate business, Senator Bacon proposed that the vice president, “not being a member of this body, has not the right to vote . . . .”40
These three different roles demonstrate that in each capacity, the Senate is effectively doing something different, and these differences govern whether or not the vice president should be permitted to exercise the tie-breaking authority. The only generality one may draw is that vice presidential participation is always proper in legislative and procedural matters. In executive business, and business that is neither executive, legislative, nor procedural, there is no consensus on the propriety of the vice president casting a tie-breaking vote.
II. Legislative Votes and Confirmation Votes
The legislative and executive functions of the Senate differ in many important ways. The most relevant distinction is the permanence and irreversible nature of presidential nominations, especially with respect to Article III judges.41 While the independence of the federal judiciary is a key concern, the other distinctions are worth highlighting.
A. Legislation in the Senate
In its legislative function, the Senate may vote to pass a bill that is small and relatively inconsequential, or massively significant and contentious. When the Senate is evenly divided on a legislative vote, the vice president may properly break the tie to ensure a definite resolution.42 In such cases, assuming the president signs the bill into law, it will become the law of the United States. However, such a law can be changed by many means. Laws can be amended, sometimes radically changing how they function.43 Laws, and even constitutional amendments, can also be completely repealed.44 Finally, the Supreme Court can declare a law or part of a law unconstitutional, as the Court has done on many occasions.45
The legislative process is final, until it is not. Myriad constitutional mechanisms exist for laws to be changed, and while many laws are permanent and sacrosanct for all intents and purposes, the fact is that those laws could very well cease to exist. Our democratic system ensures that our government is responsive to the will of the people. It would be quite a juxtaposition to have certain laws that could not be amended or repealed through the democratic process.
This all demonstrates how legislative enactments, even those that have become functionally permanent, lack the permanence of other Senate actions. If the vice president takes part in a legislative or procedural vote, that is circumstantial evidence that, at the very least, the vote is somewhat controversial. The controversial nature indicates that at some time in the future, in one way or another, there is a distinct possibility that the legislation the vice president voted on will change in character or be repealed when the political winds shift.46 Thus, when a vice president casts the tie-breaking vote on a legislative matter, the effect of that vote is less permanent than when the vice president casts a tie-breaking vote to confirm presidential nominations.
B. Non-Judicial Confirmation Votes
There is nothing, at least in this day and age, less controversial about important pieces of legislation than there is about presidential nominations. But there is an important distinction: the Senate cannot alter a presidential nomination after it has fulfilled its constitutional advise and consent role. With respect to appointments to the Executive Branch, the Senate cannot (and should not be able to) remove executive officers after confirming them.47 Only the president can do so.48
Perhaps for this reason, and the Framers’ concern about the vice president casting the decisive vote on an executive nomination, there are only three historic examples of the vice president casting such votes. In 1925, Vice President Charles G. Dawes almost cast the tie-breaking vote to confirm President Calvin Coolidge’s nominee for attorney general. There was no objection to the idea that he may be needed to participate in the vote, but as fate would have it, Dawes was napping at the nearby Willard Hotel, and in the time it took for Dawes to make his way to the Capitol, one Democratic senator switched his vote and the nomination was rejected.49 As noted, Vice President Calhoun also defeated the nomination of Van Buren to be the Minister to Great Britain. And finally, Vice President George Clinton voted to confirm John Armstrong as the Minister to Spain in 1806.50
This scant, largely distant history of the vice president casting tie-breaking votes on presidential nominees for executive offices indicates that vice presidents may have perceived a prudential limit on their power to cast such votes, but it is by no means conclusive.
C. Judicial Confirmations in the Senate
The concerns over vice presidents casting votes on nominations to the executive branch are magnified with respect to votes on nominations to the judicial branch. Unlike ambassadors, cabinet secretaries, agency heads, and other high-level executive nominees, Article III judges exercise purely judicial power, and cannot be removed by the president.51 They can be impeached, but impeachment is justified only in rare circumstances.52
Most of the executive positions that require presidential nominations53 last only until the next lost election, so the political process still provides a check on these appointments. While these appointments may be permanent for the entirety of a presidential administration,54 they do not enjoy the job security of Article III judges.
In contrast, the independence of judges is the cornerstone of our judicial system. In Federalist No. 78, Hamilton wrote extensively on the importance of, and justification for, having judges who could not be removed from office except in instances of, presumably, bad behavior. Independent judges, Hamilton wrote, are “[an] excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.”55
When designing a judicial system, it must be placed somewhere on a spectrum between complete independence and strict accountability.56 Too far to the accountability side, and the judges will look like representatives imbued with judicial authority. Too far to the independence side and judges can make decisions wildly out of touch with society’s beliefs. The Framers of the Constitution erred on the side of independence and qualified judicial tenure only on “Good Behaviour.”57 This ensures that only the most egregious violations of judicial power and abuses of office are punished by removal.58 Impeachment has historically been limited to ethical violations and criminal conduct.59 Those exercises of judicial power that are questionable and disfavored are permitted to stand because the institutional interests in independence outweigh many individual imprudent acts of judges.60 To impeach and remove an Article III judge on scant evidence of bad behavior would be a serious violation of the separation of powers.
For good reason, neither the people nor the president can remove Article III judges from office. The Framers gave the Senate an advice and consent role in the nomination of Article III judges, and the Seventeenth Amendment61 enabled the people, rather than the state legislators, to elect their Senators. It follows that the advice and consent role gives the people, through their elected Senators, a voice in the nomination of federal judges and other presidential nominees.
If the Vice President were to cast the tie-breaking vote to confirm a Supreme Court Justice, or even a controversial district court judge, that decision would—barring unforeseeable circumstances—be final. Statistically, that judge would likely serve until their death.62 Since all Article III judges now need only a simple majority to be confirmed,63 the need for the vice president’s vote would signify that less than a majority of the country, speaking through its Senators, wish to confer upon the nominated individual the functionally uncheckable power of the federal judiciary.64
Unlike legislation, the act of confirming a judicial nominee in the Senate cannot and indeed should not be altered.65 This permanence requires that nominees for federal judgeships must gain, at the very least, the support of a majority of Senators, to give effect to the purpose of the Seventeenth Amendment.66 Ideally, federal judges should need a two-thirds majority to be confirmed in the Senate, but reality dictates a lower threshold. If the vice president were to be the deciding vote for the confirmation of an Article III judge, that judge would lack the legitimacy that the judicial system requires as an institution. The questions of legitimacy increases in importance for federal appellate judges, especially the justices of the Supreme Court.67
When the Senate fulfills its advice and consent role, and the result for all functional purposes is permanent, irrevocable, and of great consequence for the entire country, the vice president should not exercise the Article I authority to break a tie vote. Allowing the vice president to break a tie serves the interest of a definite resolution,68 but if the Senate deadlocks, that judicial nomination would fail and that would also be a definite resolution without the need for the vice president to vote. Based on prudential concerns, evidence that vice-presidential participation in specific, non-resolution matters was not envisioned by the Framers of the Constitution, and in the interest of maintaining the legitimacy of the judicial system, doubts about a judicial nominee should be resolved against the conferral of uncheckable judicial authority.
III. Inter-Branch Conflicts
A. The President’s Agent
Under the electoral system created by the Framers, the vice presidency was to be filled by the individual who received the second most votes in the Electoral College.69 Under that system, rather than act as an agent of the president, the vice president acted as the President’s direct opposition, creating a microcosm of the country’s political divisions in the White House, for better or worse.
The election of 1800 revealed problems with such a system when both Aaron Burr and Thomas Jefferson received the same number of votes.70 Four years later, Congress adopted the Twelfth Amendment,71 which created the system we have today where the president and vice president run on the same ticket.
Over 150 years later, the Twenty-Fifth Amendment formally provided that the vice president would assume the presidency if the president was unable to discharge the duties of the office.72 However, neither the Twelfth nor the Twenty-Fifth Amendments changed the text of the Constitution regarding the vice president’s role as President of the Senate or his tie-breaking authority. Although the vice presidency evolved through both Amendments, there is no formal indication that either Amendment altered the vice president’s constitutional powers.
Historically, the vice presidency has been mocked for its lack of importance. It has been referred to as “simply standby equipment,”73 it has been passed up on more than one occasion,74 and vice presidents have taken on executive tasks that “were not deemed worthy of the president’s calendar”75 but still required an executive presence.
But this attitude toward the vice presidency has largely changed in the modern era. Vice presidents today represent the interests of the president for whom they serve by giving speeches, campaigning, attending ceremonies, and visiting foreign countries.76 Their relationships, know-how, and experiences are at the president’s disposal, and oftentimes vice presidents are chosen to address a presidential candidate’s specific electoral weaknesses.77 For all practical matters, the contemporary vice presidency is an extension of the presidency, and the modern vice president acts primarily as an agent of the president.
B. The Separation of Powers Problem
The office of the vice presidency is provided for in Article II of the Constitution,78 which makes the office part of the Executive Branch. Indeed, he or she is but a heartbeat away from the Presidency itself.79 There has, however, been some debate over whether the vice presidency is indeed a position in the Executive Branch, or whether the role is primarily legislative since the only constitutional power granted to the vice president is found in Article I.80
When vice presidents cast a tie-breaking vote on a legislative or procedural matter in the Senate, the operative effect is that the Executive Branch resolves an issue that arose in the Senate. Vice presidents do not participate in the debate, or the study of the issue at hand, they merely weigh the issue on its face and casts the deciding vote. This ensures for the “definite resolution of the body” that Hamilton imagined in Federalist No. 68.81
In the case of presidential nominations, the vice president, as an executive branch official, may play a role in the choice of who to nominate to fill vacancies in the federal judiciary. This is also true for the nomination of cabinet members and other political appointees.82
This dual role that the vice president may play distorts the separation of powers between the branches of government. If, for example, the president outsourced the selection of a judicial nominee to the vice president, then the vice president broke a tie to confirm that nominee, it would be a mockery of the advice and consent process. Yet there are no procedural mechanisms to stop this from happening, only prudential limitations.
Some executive business is so important, and of such great consequence, that the Framers created a check on the executive power by giving the Senate an advisory role in the nomination of some positions.83 If a nomination is unable to garner the support of a majority of Senators, that is a signal that the Senate does not consent to the nominee. The vice president should not tip the scales in such an event and circumvent the important check the Framers placed on executive power.
Conclusion
Allowing the vice president to cast a tie-breaking vote in order to confirm a judicial nominee would not run afoul of the Constitution per se but would violate underlying values. It would infringe on the separation of powers, the notion of advice and consent, and the idea of majority rule. For judicial nominations, where the president must seek the advice and consent of the Senate, there is reason to believe that the vice president’s Article I authority ought not be invoked when a majority of the Senate does not consent to the nominee.
We should not embrace with open arms all that our Constitution does not explicitly prohibit as it pertains to governmental authority. To respect the Constitution is not to just respect its letter, but to respect the values that it embodies. Our Constitution does not prohibit journalists from being investigated by the government, but the values of the First Amendment clearly counsel against such action. Nor does our Constitution explicitly prohibit the President using the Department of Justice to target political opponents for prosecution under the guise of law enforcement, but our understanding of our system of government strongly mitigates against such action.
The vice president’s Article I authority to break ties in the Senate should be limited to the Senate’s legislative business and should not extend to the Senate’s executive business as it concerns federal judicial nominees, and especially nominees to the Supreme Court. The crown jewel of our constitutional system—our independent judiciary—requires utmost legitimacy. To allow a nominee to ascend to the federal bench in the face of such opposition in the Senate would rob our judiciary of that requisite legitimacy.