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With the retirement of Stephen Breyer from the Supreme Court, and Biden's promise to nominate a Black woman to fill the vacancy, some of the most far-fetched speculation about the nominee has involved Kamala Harris. The Senate is currently evenly split with Kamala Harris's vote breaking the tie.

If, in this hypothetical, Biden actually nominated her, and the Senate was tied when voting to confirm her, would she be able to cast the tie-breaking vote to put herself on the bench?

Does a judicial nominee's power to do this not infringe upon the separation of powers? Or, if it does not, how is the Senate providing ‘advice and consent’ when a judicial nominee is ultimately the one who gives their consent when the Senate can't agree without the VP?

A similar question arises when there's an Electoral College tie, and the Senate is tied, which would allow the incumbent VP to vote themselves back into power if they're standing for re-election.

Does the Constitution permit such a flagrant power grab?

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    How is this different from a situation in which a senator from a majority faction votes to confirm themselves, after getting nominated? It's not a power grab because their vote is one of majority votes and they need to be nominated first anyway.
    – grovkin
    Commented Feb 1, 2022 at 4:20
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    This is more about conflicts of interest, not separation of powers, and there's little in the constitution about COI (although VPOTUS doesn't preside when POTUS is being impeached). And POTUS can avoid this simply by not nominating VPOTUS or a senator.
    – Barmar
    Commented Feb 1, 2022 at 15:55
  • @Barmar Isn’t the separation of the powers all about preventing conflicts of interest though? Commented Feb 6, 2022 at 14:29
  • @Tolga I don't think so. Suppose we just had Congress, with no Presidential veto or judicial review. The requirement for all the congressmen to agree on legislation would prevent individual conflicts of interest from overwhelming the decisions.
    – Barmar
    Commented Feb 6, 2022 at 14:44
  • @Barmar Yes, but that is a government with only a legislative branch, so there is no need for it to be separate from another branch. Any government which wishes to operate with three different branches requires a separation of powers to avoid a conflict of interest. Commented Feb 6, 2022 at 15:28

2 Answers 2

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The US Constitution Art. 1 §3 cl. 4 says

The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

No clause of the Constitution limits how a person can vote in the Senate (or the House). Congress has not enacted any legislation that addresses this question, and nothing in the Constitution empowers Congress to limit the right to vote.

Art 1 §5 cl. 2 says

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

That is, the Senate can set up rules for how it will conduct business. The Senate is not empowered to exclude a member's right to vote, they with a supermajority they can expel a member (or convict and remove a vice-president, given an impeachment from the House). It should also be remembered that the VP is not a member of the Senate, the VP has a limited right to vote which is granted by the Constitution, and which cannot be taken away except by constitutional amendment. Harris would therefore be empowered to vote for herself, under the tie-breaker clause.

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    To be nit-picky... The Senate cannot impeach the VP, only the house can (an impeachment is like an indictment for Treason, Bribery, or other high Crimes and Misdemeanors). Once a VP (or other officer) is impeached, then the Senate holds a trial and it can vote to remove the offender from office and to possibly bar the offender from ever holding office again.
    – Flydog57
    Commented Feb 1, 2022 at 22:38
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Separation of powers is a guideline, or perhaps it might better be called a design goal, of the US federal government, not an unbreachable rule. Strictly speaking, confirmation of executive appointments by the Senate is a violation of the separation of powers. Read The Federalist for a detailed explanation of the complex way in which powers of the three main departments are separated in some matters and intermixed in others, and of the reasons why the thee authors, all key members of the convention that drafted the Constitution, thought this wise.

Specifically in No 51 of The Federalist, it is stated:

In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. Were this principle rigorously adhered to, it would require that all the appointments for the supreme executive, legislative, and judiciary magistracies should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another. Perhaps such a plan of constructing the several departments would be less difficult in practice than it may in contemplation appear. Some difficulties, however, and some additional expense would attend the execution of it. Some deviations, therefore, from the principle must be admitted. In the constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle: first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them. [Emphasis added.]

The Wikipedia article about this essay states:

Federalist No. 51 addresses means by which appropriate checks and balances can be created in government and also advocates a separation of powers within the national government. The idea of checks and balances is a crucial part of the modern U.S. system of government.

As to the specific questions:

  1. In the unlikely event that a US President nominated the sitting vice-President to the US Supreme Court (it has never been done), if the senate split 50-50 on confirming such a nomination, the VP could indeed vote to confirm that nomination, although for political reasons, the VP might abstain (and a tie vote loses in the Senate).

  2. If no one person has 270 electoral votes for VP, the senate chooses from among the top two electoral vote getters for VP. If the senate split equally between those two, the then-sitting VP could vote to break the tie.

    If and only if such a VP was one of the top 2 (presumably if running for reelection), then such a VP could vote for himself or herself. I would not call a vote to choose a person as VP who was nominated, was one of the top-2 electoral vote getters, and was the recipient of the votes of 50 senators a "power grab". Someone must be chosen to be the new VP. If 51 Senators cannot agree, then the sitting VP must break the tie.

    In any case, that is how the Constitution, as currently amended, now reads. It could be changed, the process for electing the VP was changed once, by the 12th amendment. Whether it should be changed, to handle this case which has never yet occurred, is a matter of politics, not law.

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