President Biden has announced current DC Court of Appeals Judge Merrick Garland as the nominee to be the next Attorney General. With the Democrats holding 50 Senate seats and the ability of Vice President Harris to break Senate ties, confirmation of Judge Garland is expected. Confirmation of his replacement on the DC Circuit may raise a constitutional issue.
Most Important Court of Appeals
The DC Circuit is considered the most important federal Court of Appeals, as it hears challenges to many federal agency actions. Appointments to that court often draw more publicity than any court except the US Supreme Court. Also, many will view the nominee to replace Judge Garland as the likely nominee should a Supreme Court vacancy arise during the Biden administration.
Can VP Break Ties in Confirming Judges?
It seems like a long time since the confirmation of current US Supreme Court Justice Barrett, but she has only been on that court for a few months. When she was nominated, Republicans controlled the Senate by two votes. Some speculated two Republican senators might not support the nomination, resulting in a 50-50 Senate split. Laurence Tribe, a prominent Harvard Law professor who has historically supported Democrats, wrote in the Boston Globe that while the Vice President can break ties to confirm cabinet appointees, such as the Attorney General, that process does not work for confirming judges. To see his article, https://www.bostonglobe.com/2020/09/23/opinion/no-hiding-behind-pences-skirt-supreme-court-nomination/
Responses, including some associated with conservative views, argued Tribe is wrong. https://thefederalist.com/2020/09/29/yes-the-vice-president-breaks-a-senate-tie-on-scotus-nominees/; https://lawliberty.org/laurence-tribe-gets-the-vps-vote-wrong/
The appointment to the DC Circuit may provide an opportunity to test if the Senate can confirm a judge in a 50-50 split and a Vice President’s vote. Those supporting the appointment will need to argue that Laurence Tribe, whose Supreme Court appearances include arguing for the Democrat in Bush v. Gore, got it wrong.