Biden’s Supreme Court Nominee May Face Approval Hurdles

Biden's Supreme Court Nominee May Face Approval Hurdles

( – Speculation about Supreme Court Justice Breyer’s likely replacement began quickly following the revelation the 83-year-old is set to retire at the end of the current SCOTUS term. Most people assumed Vice President Kamala Harris could cast a tie-breaking vote if Democrats and Republicans end up evenly split in a confirmation battle. However, it may not be the case.

According to an editorial legal scholar, Howard Tribe, wrote in the Boston Globe in September 2020, vice presidents supposedly do not have the power to cast tie-breaking votes when it comes to the nomination of Supreme Court judges. Tribe, an ally of President Joe Biden, wrote the piece in the context of then-President Donald Trump’s nomination of Amy Coney Barrett, a fiercely unpopular figure among Liberals.

Tribe conceded his opinion had not changed when he spoke on the subject this week. The same principles will likely apply when Biden picks Breyer’s successor.

So, if Tribe’s analysis is accurate, what will happen? Either Biden picks a judge who’s moderate enough that at least one Republican senator approves of the choice, or he tries his luck with getting Kamala Harris to break a 50-50 tie despite the legal uncertainty. Suppose he pursues this questionable strategy (no vice president has ever cast the deciding vote in a SCOTUS confirmation battle). In that case, the matter could end up in front of the current Supreme Court bench for legal analysis.

Wouldn’t it be ironic if the decision about whether a vice president gets to be a tiebreaker in the Supreme Court pick fell to the court itself?

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