While reading this fairly generous profile of Rand Paul in the New York Times, a thought occurred to me. Imagine if you will that Rand Paul picks Ted Cruz as his running mate (probably not going to happen, but bear with me). Then President Paul nominates Vice President Cruz to the Supreme Court. Again, assume the filibuster is not used. The vote in the Senate for advice and consent is 50-50. Does the President of the Senate (VP) then cast the tie-breaking vote? Recall, Article II, Section 3 provides, “The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.” And if so, would the Vice President preside over his own confirmation vote, and then effectively vote for himself onto the Court?
This would not be unprecedented. Following the Election of 1800, Vice President Jefferson, serving as President of the Senate, was responsible for counting his own votes (as the Constitution afforded that responsibility). And, he construed some favorable votes in his own favor, which led to the tie with Aaron Burr. So Jefferson helped himself onto the Presidency.
Don’t forget, the incompatibility clause serves as no bar for the Vice President also serving as an Associate Justice.