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November 19, 2021


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We have a precedent on this matter, the confirmation of Gerald Ford as Vice President. At that time, Congress interpreted the constitutional language as holding separate votes.


apologies, I missed your mention of the Ford vote. I do think it would be wrong to change it in order to force a confirmation but then, I believe it would be wrong to withhold a vote on this office for purely partisan reasons. On the other hand, I have no problem withholding a vote on a Supreme Court nominee late in a president's term as McConnell did in 2020 (nine months before Obama's term ended) or as Schumer said he would, in a July 2007 speech to the ACS, eighteen months before bush's term ended.

Steve L.

The Ford vote is a pretty weak precedent. The vote totals were overwhelming, so there was no need to consider whether the procedure was the right one. It would have been an extreme super-majority either way. In any case (1) the Ford procedure is not binding on subsequent congresses; and (2) the validity of a vote in joint session would likely be non-justiciable.

Steve L.

UPDATE:  Sorry, I forgot about the Rockefeller confirmation. Same circumstances apply.


The contention is a bit dubious that "both" means "joint"

confirmation by a majority vote of both [of the] Houses of Congress

the "Houses of Congress" = the House and the Senate

confirmation by a majority vote of both [the House and the Senate]

You contend it means:

confirmation by a majority vote of both of the Houses of Congress in joint session


I think it is difficult to argue that a joint vote is required because jointly the two chambers do not vote on anything at all.


Given that he obtained the majority vote of both swing states, he won.

That must mean the two states voted as one?

Eric Bulloch

You think this one is tough. Try this?

Did a state have a right voluntarily to withdraw from the Union prior to the Civil War? Of course, this issue was decided by force of arms in the Civil War and confirmed by a Supreme Court opinion in 1869 but ante-bellum it was much debated.

Michael L Rosin

As Congress crafted the 25th amendment there were all sorts of proposals on how to fill a VP vacancy. (1) Have the last set of presidential electors convene to choose a VP. (2) Have elections to pick a new set of electors, just to pick a VP. (3) Frank Church even proposed having the President nominate between two and five VP candidates "by and with the advice and consent of the Senate" from which the House would immediately choose one by ballot. (1964/01/15, CR 814) No one suggested the votes of the two chambers ever be aggregated. (BTW, who would formulate the rules to count the aggregated vote?) If a 50-50 Senate split is resolved by the House vote, why not let a 49-51 Senate vote be overcome by the House vote? A tied Senate vote in the absence of a VP has always been understood to be a failed vote.
In 1866 Congress dealt with the problem of a bicameral legislature not agreeing on how to fill a vacancy. In this case it was a legislature failing to fill a US Senate seat. Per the Act of 1866/07/25, 14 Stat. 243, IF the two chambers could not agree, THEN they would meet in "joint assembly" and "proceed to choose by a viva voce vote of each member present a person for senator, and the person who receives a majority of all the votes of the joint assembly, a majority of all the members of both houses being present and voting, shall be declared duly elected." If that failed they would meet again the next day, and the next, and the next.
When Congress intended a vote by joint ballot of a bocameral legislature, it said so.



Yours seems to be the final answer.

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