Balkinization: Did the Framers Intend the Vice President to Have a Say in Judicial Appointments? Perhaps Not.

Did the Framers Intend the Vice President to Have a Say in Judicial Appointments? Perhaps Not.

Guest Blogger

John Langford

The Constitution’s Appointments Clause provides that the President “shall nominate, and by and with Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court,” as well as other ambassadors, ministers and consuls, and all other “Officers of the United States.”[1] What happens if the Senate can’t agree on a particular nominee?

Typically, the Vice President breaks a tie in the Senate. Article I, section 3, clause 6 of the Constitution specifies that “[t]he Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.” In effect, it means that there should never be such a thing as a divided Senate, unless the Vice President is absent or exercising the Office of President of the United States.[2]

Yet, in Federalist No. 69, Alexander Hamilton explicitly contemplates that when the Senate exercises its Appointments Clause “advice and consent” power, there may well be a divided Senate and that when the Senate is “equally divided,” the appointment fails:

The President is to nominate, and, WITH THE ADVICE AND CONSENT OF THE SENATE, to appoint ambassadors and other public ministers, judges of the Supreme Court, and in general all officers of the United States established by law, and whose appointments are not otherwise provided for by the Constitution. . . . There is evidently a great inferiority in the power of the President, in this particular, to that of the British king; nor is it equal to that of the governor of New York, if we are to interpret the meaning of the constitution of the State by the practice which has obtained under it. The power of appointment [in New York] is . . . lodged in a council, composed of the governor and four members of the Senate, chosen by the Assembly. The governor CLAIMS, and has frequently EXERCISED, the right of nomination, and is ENTITLED to a casting vote in the appointment. If he really has the right of nominating, his authority is in this respect equal to that of the President, and exceeds it in the article of the casting vote. In the national government, if the Senate should be divided, no appointment could be made; in the government of New York, if the council should be divided, the governor can turn the scale, and confirm his own nomination.[3]

At face value, Hamilton seemed to believe (a) that there may be a divided Senate in the appointments context; and (b) that a tie in the Senate defeats a President’s nomination.

Additional support for the tie-means-no-appointment theory lies in Hamilton’s Federalist No. 76. There, Hamilton lays out an extended defense of dividing the appointments power between the President and the Senate. Among other arguments, Hamilton offers the following:

To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.[4]

Tellingly, Hamilton suggests that to subvert the legislative check on the President’s appointment power, the Executive would need “to corrupt or seduce a majority of its members.”[5] One inference to be drawn, again, is that a tie among the Senate’s own members means no appointment.

Hamilton also explains that it would not be easy for the President to buy votes for particular nominees by offering to appoint legislators to prestigious or lucrative new positions in the federal government:

The Constitution has provided some important guards against the danger of executive influence upon the legislative body: it declares that “No senator or representative shall during the time FOR WHICH HE WAS ELECTED, be appointed to any civil office under the United States, which shall have been created, or the emoluments whereof shall have been increased, during such time; and no person, holding any office under the United States, shall be a member of either house during his continuance in office.”[6]

In other words, the Constitution’s prohibition on legislators being simultaneously appointed to new or newly lucrative offices serves as a bulwark against Presidential attempts to seduce or corrupt legislators into consenting to a particular nomination.[7] In contrast, no similar check prevents the President from buying off the Vice President’s vote.

There seems to have been no explicit agreement reached at the Constitutional Convention. In mid-June 1787, the Virginia Plan provided for judges to be appointed by the Senate, while the New Jersey plan provided for judges to be appointed by the Executive.[8] The issue was hotly debated on July 21, 1787.[9] Madison proposed that judges be nominated by the Executive and that such nominations become appointments unless disagreed to by two-thirds of the Senate.[10] Edmund Randolph and Gouveneur Morris supported Madison’s proposal. Charles Pinkney, Elbridge Gerry, and George Mason suggested that the power to appoint judges be placed exclusively with the Senate. Oliver Ellsworth suggested that appointments should be made by the Senate but that the President be permitted to veto such appointments and that a veto could, in turn, be overruled by a two-thirds vote of the Senate. Ultimately, the Framers rejected a provision that specified that the “the Judges shall be nominated by the Executive, and such nomination shall become an appointment if not disagreed to by the [Senate],” in favor of a provision specifying that the Senate would appoint judges.[11]

On September 5, 1787, the third “Committee of Eleven,” which was formed to address tabled issues, abruptly reversed course and proposed that “[t]he President . . . shall nominate and by and with advice and consent of the Senate appoint . . . Judges of the Supreme Court.”[12] The issue was debated again on September 7, 1787, and once again, the delegates were split over whether the appointment power should lie with the Executive or the Senate.[13] Charles Pinkney thought the power should lie solely with the Executive; James Wilson suggested that the power lie with the Executive who would be advised, but not bound by, a Council to be selected by the Senate; Rufus King thought the people would reject the creation of an advisory Council, which would increase the influence of the national government; Gouveneur Morris thought the advice and consent model offered balanced, ensuring that the President would have responsibility for appointments, while the requirement of Senate concurrence would offer security; and Elbridge Gerry continued to argue that the appointment power should lie with the Senate alone.[14] In the end, the Framers stuck with the advice and consent provision suggested by the third Committee of Eleven.

Nevertheless, there are at least two textual clues in the Constitution which suggests that the Framers may not, in fact, have contemplated that a Vice President would or could break a Senate equally divided over a Presidential nominee.

First, the Framers situated the Senate’s “advice and consent” powers in Article II, not Article I. The location of the Senate’s “advice and consent” powers suggests that they were intended as legislative checks on Presidential treaty and appointments powers, not extensions of the Senate’s and Vice President’s Article I voting powers. In other words, Article I’s provision for a Vice Presidential tiebreaking “Vote” might not extend to giving tiebreaking “consent” under Article II.

Second, with respect to the Senate’s other “advice and consent” power—the power to advise and consent to treaties, the Framers did not default to the general rule that the Vice President breaks a tie in the Senate; instead, the Framers explicitly guarded against a closely divided Senate by requiring a two-thirds majority of Senators present to concur in order to consent to a particular treaty.[15] The Framers included no such safeguard for the Senate’s Appointments Clause “advice and consent” power. Perhaps the Framers assumed the default rule would apply whereby tie goes to the Vice President; perhaps, instead, the Framers meant to provide for the possibility of a divided Senate, in which case the nomination would fail.

The issue of a tied Senate on Presidential nominees did not arise for some time after the Constitution’s ratification. As Vice President from 1789–1797, John Adams cast twenty-nine tiebreaking votes;[16] none of those related to the appointment of Presidential nominees.[17] Between 1797 and 1801, Thomas Jefferson cast three tie-breaking votes,[18] and none of those related to the appointment of Presidential nominees.[19] Nor did Vice President Aaron Burr cast any tiebreaking votes on nominees between 1801 and 1805.[20]

Vice Presidents, nevertheless, have since occasionally issued tiebreaking votes on Presidential nominees, but those votes appear to be relatively rare. Between, 1789 and 1915, one scholar purports of have located 13 tiebreaking votes on presidential nominees.[21] A tiebreaking vote on a presidential nominee was cast at least as early as January 25, 1832, when Vice President Calhoun cast the deciding vote rejecting the nomination of Martin Van Buren to be minister to Great Britain.[22] Notably, a tie vote was deliberately arranged so that Calhoun, who bore a grudge against Van Buren, could have the satisfaction of voting down Van Buren’s nomination.[23]

More recently, Vice President George H.W. Bush issued a tiebreaking vote in favor of confirming Judge Daniel Manion to the Seventh Circuit on July 23, 1986.[24] On January 24, 2017, Vice President Pence broke a tie in the Senate to confirm Sam Brownback as Ambassador at Large for International Religious Freedom.[25] And on February 7, 2017, Vice President Pence cast the first ever tiebreaking vote for a Cabinet nomination, confirming President Trump’s nomination of Betsy DeVos to serve as Secretary of Education.[26]

The takeaway is that while Vice Presidents have cast tiebreaking votes on presidential nominees before, it is a rare thing indeed. But it may well have come as a shock to Hamilton and the Framers that a President would be permitted to nominate an individual to the Supreme Court and that the Vice President could, with a Senate divided, issue the deciding vote on confirmation.

UPDATE: For additional arguments that the Vice President may not issue a tie-breaking vote on judicial nominees, see Samuel Morse’s thoughtful essay on Cardozo Law Review website. Samuel Morse, The Constitutional Argument Against the Vice President Casting Tie-Breaking Votes on Judicial Nominees, Cardozo L. Rev.: De Novo (Sep. 27, 2018), http://cardozolawreview.com/the-constitutional-argument-against-the-vice-president-casting-tie-breaking-votes-on-judicial-nominees/. I was unaware of Mr. Morse’s recent essay when I wrote and published this post and sincerely apologize for failing to locate and acknowledge his work prior to publication.

John Langford is a Staff Attorney at Yale Law School's Media Freedom and Information Access Clinic. You can reach him by e-mail at john.langford at yale.edu

[1] U.S. Const., art. II, § 2.

[2] See U.S. Const., art. I, § 3, cl. 7.

[3] The Federalist No. 69 (emphasis added).

[4] The Federalist No. 76.

[5] The Federalist No. 76 (emphasis added).

[6] Id.

[7] U.S. Const. art. I, § 6, cl. 2.

[8] See 1 The Records of the Federal Convention of 1787, at 230, 244 (Max Farrand ed., 1911) (June 13 & 15, 1787).

[9] See 2 The Records of the Federal Convention of 1787, at 80–83 (Max Farrand ed., 1911) (July 21, 1787).

[10] Id. at 80.

[11] 2 The Records of the Federal Convention of 1787, at 71 (Max Farrand ed., 1911) (July 21, 1787).

[12] 2 The Records of the Federal Convention of 1787, at 498 (Max Farrand ed., 1911) (Sep. 4, 1787).

[13] 2 The Records of the Federal Convention of 1787, at 538–39 (Max Farrand ed., 1911) (Sep. 7, 1787).

[14] Id.

[15] U.S. Const. art. II, § 2, cl. 2.

[16] See Senate Historical Office, Occasions When Vice Presidents Have Voted to Break Tie Votes in the Senate 9, U.S. Senate (Feb. 2, 2018), https://www.senate.gov/artandhistory/history/resources/pdf/VPTies.pdf.

[17] I compared every vote listed in the Senate Historical Office’s catalogue of tiebreaking votes against the Senate Journal.

[18] See Senate Historical Office, Occasions When Vice Presidents Have Voted to Break Tie Votes in the Senate 9, U.S. Senate (Feb. 2, 2018), https://www.senate.gov/artandhistory/history/resources/pdf/VPTies.pdf.

[19] I compared every vote listed in the Senate Historical Office’s catalogue of tiebreaking votes against the Senate Journal.

[20] 11 Annals of Cong. 147–50 (1802).

[21] Henry Barrett Learned, Casting Votes of the Vice-Presidents, 1789–1915, 20 Am. Hist. Rev. 571, 571 (1915).

[22] 4 Sen. Exec. J. 203 (1832).

[23] Felix A. Nigro, The Van Buren Confirmation Before the Senate, 14 W. Pol. Q. 148, 149, 152 (1961).

[24] See Senators Confirm Manion as U.S. Judge On a Tie Vote: Bush Vote Unneeded by Nominee, L.A. Times (July 23, 1986), http://articles.latimes.com/1986-07-23/news/mn-21812_1_tie-vote.

[25] Mitch Smith, After Long Wait in Kansas Gov. Sam Brownback Gets Ambassadorship, N.Y. Times (Jan. 24, 2018), https://www.nytimes.com/2018/01/24/us/sam-brownback-kansas-ambassador.html.

[26] See Senate Historical Office, Occasions When Vice Presidents Have Voted to Break Tie Votes in the Senate 9, U.S. Senate (Feb. 2, 2018), https://www.senate.gov/artandhistory/history/resources/pdf/VPTies.pdf; U.S. Senate, Tie Votes, https://www.senate.gov/pagelayout/reference/four_column_table/Tie_Votes.htm (last visited Oct. 4, 2018); Emma Brown, With Historic Tiebreaker from Pence, DeVos Confirmed as Education Secretary, Wash. Post (Feb. 7, 2017), https://www.washingtonpost.com/local/education/senate-to-vote-today-on-confirmation-of-betsy-devos/2017/02/06/fd4b7e9c-ec85-11e6-9662-6eedf1627882_story.html?utm_term=.d3d32c4bd150.

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