Top Biden legal ally Laurence Tribe, a Harvard law professor does not believe VP Kamala Harris can legally cast a tie breaking vote to force through a SCOTUS nominee to replace Stephen Breyer.
Philip Melanchthon Wegmann tweeted:
While it certainly seems that Democrats have the votes they need to confirm Breyer’s replacement, it’s worth remembering that Lawrence Tribe, a favored lawyer in the Biden WH, argued that VPs don’t have power to break a tie on SCOTUS appointments.
Laurence Tribe, who has counseled the Biden White House previously and who argued that Pence couldn’t break a tie to confirm a SCOTUS nominee, tells me he doubts he’d reach “a new conclusion” now even though he wishes “the situation were otherwise.”
Full statement to RCP from @tribelaw who Biden personally requested his White House seek out previously for counsel:
— Philip Melanchthon Wegmann (@PhilipWegmann) January 26, 2022
According to the DailyCaller, legal icon Alan Dershowitz has made the same argument
Her wrote in September of 2020 while discussing the possibility of Pence breaking a tie “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. 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.”
“In my view, the Framers made a mistake by not requiring a supermajority for the confirmation of a justice to a lifelong term. The requirement of a supermajority — whether of two-thirds or three-fifths — would incentivize a president to nominate consensus candidates who require the votes of at least some senators from the opposing party,” he added.