Article I of the Constitution invests the vice president with the power to vote in the Senate on the occasion that the chamber’s votes are “equally divided.” The vice president’s power to do so is unchallenged and subject to no qualifications, but Vice President Michael Pence has exercised this power often and has shown a willingness to wield this power in new ways.
In less than two years in office, Mr. Pence has cast tie-breaking votes in the Senate nine times. His first vote came less than a month into the new administration and resulted in the confirmation of Betsy DeVos as the Secretary of Education. This vote represented the first time in the history of the Senate that a vice president invoked his Article I authority to cast a tie-breaking vote in the confirmation of a member of the president’s cabinet. During votes in both January and February of this year, Mr. Pence again cast votes in the Senate to assure the confirmation of Sam Brownback, for an ambassadorship, and Russell Vought, for the Office of Management and Budget.
In the months since, Mr. Pence has outpaced all other vice presidents in casting tie-breaking votes since Alben W. Barkley, President Truman’s first vice president, who broke ties seven times in a 10-month period between September 1949 and June 1950. In more contemporary history, no vice president has voted in the Senate with such frequency. Vice Presidents Joseph Biden Jr. and Dan Quayle cast no tie-breaking votes, while Richard Cheney cast a total of eight votes over eight years in office, and Albert Gore Jr. cast four during his eight years.
This reliance on the vice president’s tie-breaking authority is inappropriate and anti-democratic, especially for cabinet-level positions, given the Republican control of the Senate. The people should interpret this behavior as the executive branch acting against the will of the American public. The fact that the Senate is unable to confirm a nominee is an indication that the people, through their elected senators, do not see the nominee fit. Relying on the vote of the vice president is counter-majoritarian — especially given the fact that Mr. Pence and President Donald Trump lost the popular vote.
Mr. Pence’s willingness to wield this voting power so regularly is one of the many ways in which this administration has been a charging river, eroding the banks of institutional norms at each bend. There is nothing standing in the way of Mr. Pence using his tie-breaking vote in the coming months to ensure that President Trump’s nominee to fill Justice Anthony Kennedy’s seat on the Supreme Court is confirmed, given the fact that Supreme Court nominations only require a simple majority since Senate Republicans invoked the "nuclear option" last Spring. Confirmation votes for Supreme Court justices are unique and wholly unlike the legislative deadlocks that vice presidents of the past have typically broken. A vice president’s tie-breaking vote, whether Democratic or Republican, should never be used in such a manner.
When the vice president breaks a deadlock in the Senate on legislation or a procedural matter, or even the confirmation of Cabinet officials, those lack the permanency of the confirmation of a nominee to the Supreme Court. Procedural votes are non-substantive; legislation can be amended and repealed to reflect the will of the people, and political appointees last only as long as the next administration.
Federal judges are different; they have life-time appointments. Our framers rightly valued the independence of the federal judiciary over accountability, protecting judges from the whims of the president, and insulating them from a reactionary public that dislikes a decision. This bit of constitutional design ensures that our judges decide difficult cases with focus only upon the correct outcome in the eyes of the law. Given the permanence of these appointments, it is of utmost necessity that they be made in a way that unquestionably reflects the will of the people through their senators. After all, the 17th Amendment allowed the people to directly elect their senators, ensuring that in the United States Senate, the people have a voice, not the states.
No vice president has cast a vote in the Senate concerning the confirmation of a justice of the Supreme Court. Other than Mr. Pence, no other vice president has participated in voting for the confirmation of presidential nominees. Our institutions are only as legitimate as the individuals who control them. Although we are a country of laws, and not of men, that axiom leaves out the fact that men (and women) make the laws. Setting this precedent would be disastrous for the strength and the optics of our democracy.
Samuel Morse is a student at the University of Maryland School of Law; his email is firstname.lastname@example.org.