Hey, as long as we want the best person for the job

At long last, S. Ct. Justice Breyer has seen the elephant in the abysmal polling on the future of the U.S. Senate after November 2022, and announced his retirement effective June. The Democratic party leadership is floating some black female candidates, because that's the important thing, with a Ketanji Brown Jackson reportedly heading the list. She tends to get reversed even by bipartisan higher D.C. Circuit courts, but I suppose that's because no one's properly setting her up for success.


Grim said...

I'd wager it'll be Kamala, to get her off the ledger so they can put a proper replacement for Joe in the mix. The only thing that might stop that is that, well, turns out they need Manchin and Sinema again.

E Hines said...

I'd wager it'll be Kamala, to get her off the ledger....

That offers an interesting image: Harris casting the tie-breaking vote in favor of her own nomination. To a position to which she's long aspired.

Former President Howard Taft went to Chief Justice of the Supreme Court. Potentially former-to-be Vice President Kamala Harris would compare unfavorably.

Eric Hines

Elise said...

There is a Sept 2020 article by Laurence Tribe, arguing that, with regard to Trump's appointment to the Supreme Court:

The vice president doesn’t have the power to break a tie on the appointment.

I skimmed the article and his argument seems a little forced to me but I gather Tribe is a big deal to Democrats. So, if this argument is accepted by the Democrats, the nomination process gets a lot more interesting. The President will have to pick someone who is acceptable to at least one Republican.

If this argument isn't accepted by the Democrats but is insisted on by the Republicans, I guess it would be decided by the Supreme Court, which would be saying "yea" or "nay" to one of its own potential members.

May you live in interesting times.

Via: https://twitter.com/PhilipWegmann/status/1486400274612826113?cxt=HHwWgsC5pZXL4KApAAAA

E Hines said...

I disagree with Tribe in all my awesomeness as a layman.

First, his argument that a Vice President casting the tie-breaking vote for a Supreme Court Justice has never been done before and so cannot do it is irrelevant, and it's bad logic even legally. Our Constitution had never been done before, not only by us, but by anyone, ever. By Tribe's logic our Constitution is illegitimate. Aside from that, never been done before--precedent--is not sacrosanct; precedents get tweaked, overturned, overridden, rescinded frequently. This argument can be dismissed out of hand.

Second, since Tribe wants to cite our Constitution, here's the sum and total of what our Constitution says about Vice Presidents casting tie-breaking votes: The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided. That's in Article I, Section 3. Nothing in there about the Senate being equally divided on bills. No reference anywhere else in our Constitution about the Senate being equally divided on anything in particular or except for.... [U]nless they be equally divided is pretty all inclusive--inclusive enough to for the Vice President to break the equal division on Supreme Court Justices. Even Tribe's reference to Art II, Section 2's advice and consent role of the Senate (keep that term in mind; I'll come back to it) does not limit the Vice President's role.

Third, go back to that President of the Senate role of the Vice President and the Senate's advice and consent role. The advice and consent is of and by the Senate, not of or by Senators. As President of the Senate, the Vice President, even though not a Senator, is a member of the Senate. She gets the tie-breaking vote in her Senate membership capacity as President of that body.

Fourth, Tribe's argument, from his Boston Globe article that the Vice President casting the tie-breaker in this sort of circumstance would break the Framers' careful constitutional structure, would seem to be the case. However, there's nothing in our Constitution that prevents a VP from doing so. From the Framers: oops. And no one--not Tribe, not the Senate or the Senators, not Congress, not any court or Court--can fix that oops. Only us citizens, collectively get to do that.

Eric Hines

Christopher B said...

Professor Jacobson @ LegalInsurrection doesn't think much of the argument either though he does quote Tribe referencing Federalist 69 where Hamilton refers to the colonial New York practice of the Governor breaking appointment ties, and seems to indicate that the Framers meant the VP tie-breaker role did not include ties for appointments.

I doubt greatly that Harris is going to give up the position of being one brain bleed away from being POTUS as well as permanently giving up any Presidential ambitions before 2024. If she vacates the position that puts the Cocaine Turtle in the driver's seat for selecting the next VP since there's no tie-breaker any more, and I can't see the Democrats really liking that idea. They'd have enough trouble getting the House to agree on a replacement.

Elise said...

As I said, Tribe's argument seems forced to me and was made to put pressure on Senators or shame them or just to vent some spleen. However, Tribe is considered a big deal on the Left so it will be interesting to see if the Democrats try to crawfish out of accepting his analysis if the Republicans decide to push it - and if so, how.

As for who is going to be the nominee, I'm in the Condoleeza Rice camp.

J Melcher said...

Elise says: " I'm in the Condoleeza Rice camp."

Me too. That would be a statesman-like fork to hoist politician opponents upon. Either support the Democratic President's nominee, 'betraying' the GOP; or oppose a Black Woman with serious credentials gained in the administration of a prior president from the GOP. (Racist, sexist, and intransigent. )

I suspect SUSAN Rice is the more likely nominee.

Christopher B said...

Biden already opposed the first black woman nominated to be a USSC Justice.

Of course, according to him, if she didn't vote for him she isn't black.

Elise said...

Somewhat off topic: I was wondering why no one was talking about Lani Guinier and discovered she'd died on January 7 of this year from complications of Alzheimers. She was so not my cup of tea but I was sorry to hear of her illness and surprised her illness and death were not bigger stories.

Texan99 said...

I remembered the name and the association with quotas, but I had to look her up to remind that she "became nationally known when President Clinton nominated her to lead the Justice Department's Civil Rights Division in 1993." Back then it was controversial to equate Civil Rights with quotas; now any other view qualifies you as a domestic terrorist. But RIP, Ms. Guinier.