The Rule of the Courts

Adopting a Canadian Style Legislative Override to Reconcile American Judicial Review...

nominee, Judge Merrick Garland, to fill a vacancy on the Court created by Justice Scalia’s sudden death in February 2016. 43 McConnell’s gambit paid off when Donald Trump surprisingly won the 2016 election and nominated the far more conservative Neil Gorsuch that the Senate confirmed by partisan vote. 44 The extremely political nature of the judicial confirmation process was also evident during the heated September 27, 2018 debate on whether Judge Brett Kavanaugh merited Senate confirmation to replace Justice Kennedy on the U.S. Supreme Court after several highly regarded women, including Dr. Christine Blasey Ford, accused Kavanaugh of sexually assaulting them when he was a young student. 45 Kavanaugh was able to gain confirmation based on a partisan vote in the Senate after the Trump White House Counsel, Don McGann, assisted him in presenting himself as the victim of liberal and feminist character assassination in his confirmation hearings. 46 With the benefit of hindsight, it is clear that both parties politicized the Kavanaugh hearings to drive turnout of their supporters for the November 2018 mid-term elections. 47 Indeed, increased turnout helped Republicans solidify their majority in the Senate and Democrats to retake control of the House. 48 After the liberal Justice Ruth Bader Ginsburg died in office at the age of 87, Donald Trump’s third and final nominee in his first term, Judge 43 Lana Ulrich, Tracking the Controversy Over Judge Garland’s Nomination , Nat’l Const. Ctr. (last visited Dec. 5, 2025), https://constitutioncenter.org/blog/tracking-the-controversy- over-judge-garlands-nomination 44 U.S. Senate Roll Call Vote 111, 115th Cong. (Apr. 7, 2017), https://www.senate.gov/ legislative/LIS/roll_call_votes/vote1151/vote_115_1_00111.htm 45 NPR, For Christine Blasey Ford, the fallout of the Kavanaugh hearing is ongoing , (Podcast episode), (Mar. 19, 2024), https://www.npr.org/2024/03/19/1239378828/for christine-blasey-ford-the-fallout-of-the-kavanaugh-hearing-is-ongoing 46 Michael C. Bender & Joe Palazzolo, The Man Behind the Brett Kavanaugh Strategy: Don McGahn , WALL ST. J. (Oct. 4, 2018), https://www.wsj.com/articles/the-man-behind the-brett-kavanaugh-strategy-don-mcgahn-1538594487. 47 Amanda Becker, Women’s Groups Aim to Use Kavanaugh Rage to Boost Voter Turnout , REUTERS (Oct. 8, 2018), https://www.reuters.com/article/legal/womens-groups-aim-to use-kavanaugh-rage-to-boost-voter-turnout-idUSKCN1MH001 48 Enten, Harry, 2018 Midterm Senate Results , CNN (Nov. 2018), https://www.cnn.com/ election/2018/results/senate and Enten, Harry, 2018 Midterm House Results, CNN (Nov. 2018), https://www.cnn.com/election/2018/results/house

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