A Supreme Balancing Act

There's the very reasonable chance that a vote in the Senate impeachment trial on Friday dealing with whether or not to call witnesses, which witnesses to call, and whether to move to dismiss the articles against Donald Trump outright could result in a 50-50 tie, with presiding Chief Justice Roberts as the tiebreaker.

Ahead of a tight vote on whether to hear new witnesses in President Donald Trump’s impeachment trial, the Senate is preparing for the possibility that this crucial roll call has an asterisk in the history books: It ends in a tie.

And it's a scenario that would suddenly put a spotlight on Chief Justice John Roberts. 

For weeks, Republicans and Democrats alike have been confident that Roberts would not break a tie vote during Trump’s impeachment trial, citing past precedent, the Constitution and their own gut feelings about how it would play in a polarized nation.

But ahead of Friday's widely anticipated showdown over whether to call new witnesses and with GOP leaders moving to lock down on-the-fence Republicans, the Senate is newly abuzz over the uncertainty of what happens if the chamber deadlocks and what Roberts might do in the event of a stalemate.

“That is a great unknown. There’s no way to know procedurally what he would do. Or if he’ll do” anything, said Sen. James Lankford (R-Okla.).

Some Democrats are beginning to opine that Roberts could save the Senate from itself and force consideration of witnesses if there's a tie. As Sen. Jon Tester (D-Mont.) put it: “If he wants a fair, impartial trial and get the evidence out, I think there’s a fair shot he would vote for witnesses.”
It's a hypothetical that Democratic leaders have privately considered for months, as soon as it became clear the House was going to send impeachment articles over to the Senate, according to Democratic aides. They have sought guidance from the Senate parliamentarian's office on the issue, although so far, that hasn't been forthcoming as it hasn't formally arisen during the Trump trial.

Yet the smart money is still on Roberts staying out of it, or GOP leaders muscling through a 51-49 vote that avoids placing responsibility for the course of the trial on Roberts. Because if the vote is tied, no matter what the chief justice does, it will be hotly debated for years to come.

“It would go down as a historical anomaly and ultimately he would be remembered as declining to break a tie. It’s the safer course in the short term to avoid intervening,” Sen. Richard Blumenthal (D-Conn.) predicted. Breaking a tie “would be a pretty daring and brave thing to do. And I think history would judge him well. But in the short term there would be a lot of blowback.”

In the short term there would be volcanic rage from the right, rage that would certainly call for Trump to remove him from office, or court-packing, or something worse.  Certainly the GOP counter-stroke would involve a flood of witnesses, the Bidens, the whistleblower, Adam Schiff, who knows.

I don't think Roberts has the courage to weather this kind of hatred, hatred that he'll have to live with for decades.  My guess is that he'll decline the deadlock and that witnesses won't be called.

It would be nice if he was willing, but there's no evidence to the contrary that he plans to interfere.