The Rule of the Courts

M. Akram Faizer

Amy Coney Barrett, had her confirmation rushed through by a partisan U.S. Senate two weeks before the 2020 presidential election, thereby solid ifying the current conservative majority on the Court and preventing Trump’s successor, Joe Biden, from nominating Ginsburg’s replacement. 49 Politics explained Joe Biden’s decision to publicly announce, during the 2020 presidential campaign that he would nominate a Black woman should a vacancy arise for him to fill on the Court. 50 Although Biden kept his promise in February 2022, when he nominated Judge Ketanji Brown Jackson to become the first Black women on the Court, it polarized attitudes on the legitimacy of her selection and she won confirmation by a narrow and partisan 53-47 vote in the Senate. 51 Today the American judicial selection process prioritizes politics and ideological orthodoxy over temperament, experience and qualifications. Indeed, because both parties seek to capitalize on vacancies to alter the ideological trajectory of the Court’s jurisprudence, there is a definite preference for youthful, as opposed to experienced candidates. 52 Republican Presidential Administrations today monographically follow the recom mendation of the conservative Federalist Society when filling federal judicial vacancies. 53 This explains why the otherwise maverick Donald Trump strictly followed the Federalist Society’s recommendations in 49 Andrew Desiderio, Senate Confirmation: Amy Coney Barrett to Supreme Court,” Politico, Oct. 26, 2020, https://www.politico.com/news/2020/10/26/senate-confirmation barrett-supreme-court-432520 50 Eugene Kiely, Biden Promise on SCOTUS Nominee Not Unique, FactCheck.org (Feb. 1, 2022), https://www.factcheck.org/2022/02/biden-promise-on-scotus-nominee not-unique/ 51 Andrew Chung & Lawrence Hurley, Biden’s Supreme Court Pick Enters Intensifying U.S. Fight on Race, Reuters (Feb. 25, 2022), https://www.reuters.com/legal/government/ bidens-supreme-court-pick-enters-intensifying-us-fight-race-2022-02-25/. 52 Kristen Bialik and John Gramlich, Younger Supreme Court Appointees Stay on the Bench Longer, but There Are Plenty of Exceptions, PEW RSCH. CTR. (Feb. 8, 2017), https://www.pewresearch.org/short-reads/2017/02/08/younger-supreme-court-appointees stay-on-the-bench-longer-but-there-are-plenty-of-exceptions/ (last visited Dec. 14, 2025). 53 Ilana Keusch, Symbiosis: Republican Presidents and the Federalist Society (Boston Univ. 2024), https://hdl.handle.net/2144/49881

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