John Langford
The Constitution’s Appointments Clause provides that the President “shall nominate, together with yesteryear together with amongst Advice together with Consent of the Senate, shall appoint . . . Judges of the supreme Court,” as good as other ambassadors, ministers together with consuls, together with all other “Officers of the United States.”[1] What happens if the Senate can’t concur on a item nominee?
Typically, the Vice President breaks a necktie inwards the Senate. Article I, department 3, clause half dozen of the Constitution specifies that “[t]he Vice President of the the States shall hold upwards President of the Senate, but shall guide maintain no Vote, unless they hold upwards every bit divided.” In effect, it agency that at that spot should never hold upwards such a matter as a divided Senate, unless the Vice President is absent or exercising the Office of President of the United States.[2]
Yet, inwards Federalist No. 69, Alexander Hamilton explicitly contemplates that when the Senate exercises its Appointments Clause “advice together with consent” power, at that spot may good hold upwards a divided Senate and that when the Senate is “equally divided,” the engagement fails:
The President is to nominate, and, WITH THE ADVICE AND CONSENT OF THE SENATE, to appoint ambassadors together with other world ministers, judges of the Supreme Court, together with inwards full general all officers of the the States established yesteryear law, together with whose appointments are non otherwise provided for yesteryear the Constitution. . . . There is plainly a neat inferiority inwards the powerfulness of the President, inwards this particular, to that of the British king; nor is it equal to that of the governor of New York, if nosotros are to translate the pregnant of the constitution of the State yesteryear the practise which has obtained nether it. The powerfulness of engagement [in New York] is . . . lodged inwards a council, composed of the governor together with 4 members of the Senate, chosen yesteryear the Assembly. The governor CLAIMS, together with has oftentimes EXERCISED, the correct of nomination, together with is ENTITLED to a casting vote inwards the appointment. If he actually has the correct of nominating, his potency is inwards this honor equal to that of the President, together with exceeds it inwards the article of the casting vote. In the national government, if the Senate should hold upwards divided, no engagement could hold upwards made; inwards the authorities of New York, if the council should hold upwards divided, the governor tin sack plow the scale, together with confirm his ain nomination.[3]
At expression upwards value, Hamilton seemed to believe (a) that at that spot may hold upwards a divided Senate inwards the appointments context; together with (b) that a necktie inwards the Senate defeats a President’s nomination.
Additional back upwards for the tie-means-no-appointment theory lies inwards Hamilton’s Federalist No. 76. There, Hamilton lays out an extended defence of dividing the appointments powerfulness betwixt the President together with the Senate. Among other arguments, Hamilton offers the following:
To what role hence require the co-operation of the Senate? I answer, that the necessity of their concurrence would guide maintain a powerful, though, inwards general, a soundless operation. It would hold upwards an fantabulous cheque upon a spirit of favoritism inwards the President, together with would tend greatly to forbid the engagement of unfit characters from State prejudice, from theater unit of measurement connection, from personal attachment, or from a persuasion to popularity. In add-on to this, it would hold upwards an efficacious root of stability inwards the administration.[4]
Tellingly, Hamilton suggests that to subvert the legislative cheque on the President’s engagement power, the Executive would postulate “to corrupt or seduce a majority of its members.”[5] One inference to hold upwards drawn, again, is that a necktie amid the Senate’s ain members agency no appointment.
Hamilton too explains that it would non hold upwards slowly for the President to purchase votes for item nominees yesteryear offering to appoint legislators to prestigious or lucrative novel positions inwards the federal government:
The Constitution has provided simply about of import guards against the danger of executive influence upon the legislative body: it declares that “No senator or representative shall during the fourth dimension FOR WHICH HE WAS ELECTED, hold upwards appointed to whatever civil role nether the United States, which shall guide maintain been created, or the emoluments whereof shall guide maintain been increased, during such time; together with no person, asset whatever role nether the United States, shall hold upwards a fellow member of either theater during his continuance inwards office.”[6]
In other words, the Constitution’s prohibition on legislators being simultaneously appointed to novel or newly lucrative offices serves as a bulwark against Presidential attempts to seduce or corrupt legislators into consenting to a item nomination.[7] In contrast, no like cheque prevents the President from buying off the Vice President’s vote.
There seems to guide maintain been no explicit understanding reached at the Constitutional Convention. In mid-June 1787, the Virginia Plan provided for judges to hold upwards appointed yesteryear the Senate, piece the New Bailiwick of Jersey excogitation provided for judges to hold upwards appointed yesteryear the Executive.[8] The number was hotly debated on July 21, 1787.[9] Madison proposed that judges hold upwards nominated yesteryear the Executive together with that such nominations buy the farm appointments unless disagreed to yesteryear two-thirds of the Senate.[10] Edmund Randolph together with Gouveneur Morris supported Madison’s proposal. Charles Pinkney, Elbridge Gerry, together with George Mason suggested that the powerfulness to appoint judges hold upwards placed alone amongst the Senate. Oliver Ellsworth suggested that appointments should hold upwards made yesteryear the Senate but that the President hold upwards permitted to veto such appointments together with that a veto could, inwards turn, hold upwards overruled yesteryear a two-thirds vote of the Senate. Ultimately, the Framers rejected a provision that specified that the “the Judges shall hold upwards nominated yesteryear the Executive, together with such nomination shall buy the farm an engagement if non disagreed to yesteryear the [Senate],” inwards favor of a provision specifying that the Senate would appoint judges.[11]
On September 5, 1787, the 3rd “Committee of Eleven,” which was formed to address tabled issues, abruptly reversed course of written report together with proposed that “[t]he President . . . shall nominate together with yesteryear together with amongst advice together with consent of the Senate appoint . . . Judges of the Supreme Court.”[12] The number was debated i time to a greater extent than on September 7, 1787, together with i time again, the delegates were split over whether the engagement powerfulness should prevarication amongst the Executive or the Senate.[13] Charles Pinkney idea the powerfulness should prevarication solely amongst the Executive; James Wilson suggested that the powerfulness prevarication amongst the Executive who would hold upwards advised, but non jump by, a Council to hold upwards selected yesteryear the Senate; Rufus King idea the people would spend upwards the creation of an advisory Council, which would increment the influence of the national government; Gouveneur Morris idea the advice together with consent model offered balanced, ensuring that the President would guide maintain responsibleness for appointments, piece the requirement of Senate concurrence would offering security; together with Elbridge Gerry continued to debate that the engagement powerfulness should prevarication amongst the Senate alone.[14] In the end, the Framers stuck amongst the advice together with consent provision suggested yesteryear the 3rd Committee of Eleven.
Nevertheless, at that spot are at to the lowest degree ii textual clues inwards the Constitution which suggests that the Framers may not, inwards fact, guide maintain contemplated that a Vice President would or could intermission a Senate every bit divided over a Presidential nominee.
First, the Framers situated the Senate’s “advice together with consent” powers inwards Article II, non Article I. The location of the Senate’s “advice together with consent” powers suggests that they were intended as legislative checks on Presidential treaty together with appointments powers, non extensions of the Senate’s together with Vice President’s Article I voting powers. In other words, Article I’s provision for a Vice Presidential tiebreaking “Vote” powerfulness non extend to giving tiebreaking “consent” nether Article II.
Second, amongst honor to the Senate’s other “advice together with consent” power—the powerfulness to advise together with consent to treaties, the Framers did non default to the full general dominion that the Vice President breaks a necktie inwards the Senate; instead, the Framers explicitly guarded against a closely divided Senate yesteryear requiring a two-thirds bulk of Senators introduce to concur inwards monastic tell to consent to a item treaty.[15] The Framers included no such safeguard for the Senate’s Appointments Clause “advice together with consent” power. Perhaps the Framers assumed the default dominion would apply whereby necktie goes to the Vice President; perhaps, instead, the Framers meant to furnish for the possibility of a divided Senate, inwards which representative the nomination would fail.
The number of a tied Senate on Presidential nominees did non arise for simply about fourth dimension afterward the Constitution’s ratification. As Vice President from 1789–1797, John Adams cast twenty-nine tiebreaking votes;[16] none of those related to the engagement of Presidential nominees.[17] Between 1797 together with 1801, Thomas Jefferson cast 3 tie-breaking votes,[18] together with none of those related to the engagement of Presidential nominees.[19] Nor did Vice President Aaron Burr cast whatever tiebreaking votes on nominees betwixt 1801 together with 1805.[20]
Vice Presidents, nevertheless, guide maintain since occasionally issued tiebreaking votes on Presidential nominees, but those votes seem to hold upwards relatively rare. Between, 1789 together with 1915, i scholar purports of guide maintain located xiii tiebreaking votes on presidential nominees.[21] A tiebreaking vote on a presidential nominee was cast at to the lowest degree as early on as Jan 25, 1832, when Vice President Calhoun cast the deciding vote rejecting the nomination of Martin Van Buren to hold upwards government minister to Great Britain.[22] Notably, a necktie vote was deliberately arranged hence that Calhoun, who bore a grudge against Van Buren, could guide maintain the satisfaction of voting downwards Van Buren’s nomination.[23]
More recently, Vice President George H.W. Bush issued a tiebreaking vote inwards favor of confirming Judge Daniel Manion to the Seventh Circuit on July 23, 1986.[24] On Jan 24, 2017, Vice President Pence broke a necktie inwards the Senate to confirm Sam Brownback as Ambassador at Large for International Religious Freedom.[25] And on Feb 7, 2017, Vice President Pence cast the outset always 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 piece Vice Presidents guide maintain cast tiebreaking votes on presidential nominees before, it is a rare matter indeed. But it may good guide maintain come upwards as a stupor to Hamilton together with the Framers that a President would hold upwards permitted to nominate an private to the Supreme Court together with that the Vice President could, amongst a Senate divided, number the deciding vote on confirmation.
UPDATE: For additional arguments that the Vice President may non number a tie-breaking vote on judicial nominees, come across Samuel Morse’s thoughtful essay out 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 out when I wrote together with published this post together with sincerely apologize for failing to locate together with admit his operate prior to publication.
John Langford is a Staff Attorney at Yale Law School's Media Freedom together with Information Access Clinic. You tin sack accomplish him yesteryear electronic 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 xiii & 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 inwards 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 inwards 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 inwards 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 inwards the Senate Historical Office’s catalogue of tiebreaking votes against the Senate Journal.
[20] xi 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, fourteen W. Pol. Q. 148, 149, 152 (1961).
[24] See Senators Confirm Manion as U.S. Judge On a Tie Vote: Bush Vote Unneeded yesteryear 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 inwards Kansas Gov. Sam Brownback Gets Ambassadorship, N.Y. Times (Jan. 24, 2018), harus di isi/search?q=24/us/sam-brownback-kansas-ambassador.
[26] See Senate Historical Office, Occasions When Vice Presidents Have Voted to Break Tie Votes inwards the Senate 9, U.S. Senate (Feb. 2, 2018), harus di isi/search?q=24/us/sam-brownback-kansas-ambassador?utm_term=.d3d32c4bd150.
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