Article I of the Constitution vests the Vice President with the power to vote in the Senate in the event of a tie. Textually, this power is not subject to any additional qualifications. However, there are reasons to believe that the Framers intended this tie-breaking power to have certain practical limits, specifically in the context of confirming Article III judges. This essay argues that concerns about the separation of powers, the differences between legislation and the confirmation of presidential nominees, anti-majoritarianism, and the forsaken sixty-vote threshold for Supreme Court nominees all militate toward a prudential limit that restricts the Vice President from casting a tie-breaking vote to confirm a Supreme Court Justice.
Cardozo Law Review de·novo
Morse, Samuel, "The Constitutional Argument Against the Vice President Casting Tie-Breaking Votes on Judicial Nominees" (2018). Cardozo Law Review de•novo. 62.