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Friday, January 31, 2020

The Chief Justice on Tie Votes in an Impeachment Trial

I found the Chief Justice's answer to the parliamentary inquiry interesting. He said that (despite the precedents set by Chief Justice Chase) there was no general authority for him to break tie votes in an impeachment trial. He then said that it would be inappropriate for him to break ties because he is unelected (unlike the Vice President) and not accountable for his vote. Personally, I think he was wrong in disclaiming that authority instead of using the convention followed by the Speaker of the House of Commons. Alas.

Since there was no tie vote to break, I'm somewhat puzzled about why the question was asked now (rather than, say, earlier in the trial). I certainly hope that there is no need to revisit this question anytime soon, because that would mean another President was being impeached.


Posted by Gerard Magliocca on January 31, 2020 at 08:35 PM | Permalink


He wasn't presiding over the House of Commons.

It seems at best an open question -- the debate over the issue makes that rather clear -- if he had the power to break ties. A couple votes back in the day doesn't settle it. What a "presiding officer" is doesn't. What is prudent here is very well open to debate.

The appropriate path is for the Senate to clearly pass a rule on the question. The Constitution gives the Senate the power to set rules of proceedings. Roberts was correct not to decide the matter on his own say-so.

Posted by: Joe | Feb 1, 2020 3:01:03 PM

Posted by: El roam | Feb 1, 2020 8:31:37 AM

Posted by: El roam | Feb 1, 2020 8:16:54 AM

Important, just worth to note, the more specific reasons, stated by him, I quote concerning the irrelevancy for him, of the historical precedent:

" One concerned a motion to adjourn, the other concerned a motion to close deliberations. I do not regard those isolated episodes 150 years ago as sufficient to support a general authority to break ties,"

And concerning let's say, sort of separation of powers, I quote:

" If the members of this body, elected by the people and accountable to them, divide equally on a motion, the normal rule is that the motion fails. I think it would be inappropriate for me, an unelected official from a different branch of government, to assert the power to change that result so that the motion would succeed."

End of quotation:

This is reasonable approach by all means ( although can be challenged ) this is because, he had to vote, as legislator, withing legislative body, for a potential rule, in form of law, binding everyone ( Bolton for example, is totally external actor, but, he could be bound to come and testify of course). So, the judge, is ultimate legislator typically, yet, not legislator per se. Here what was needed from him, is to vote directly as legislator should. This can't be done, without special or extraordinary reasoning.

One may read and watch here:



Posted by: El roam | Feb 1, 2020 7:46:06 AM

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