The Rule of the Courts

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

nominating reflexively conservative judges to the federal courts during his first term in office. 54 The Democratic response to these nominees has been recalcitrant opposition, which led the Senate to end the Senate rule allowing for the filibuster on confirmation votes for Supreme Court nominees. 55 Democratic Presidential Administrations, by contrast, tend to nominate federal judges based on a mix of political goals, professional qualifications, diversity priorities and regional preferences. 56 Key ideological litmus tests for Democratic Presidential Administrations are support for constitutional rights to abortion and racial affirmative action. 57 So, for example, President Obama prioritized nominating the first Hispanic American, Sonia Sotomayor, to be his first U.S. Supreme Court nominee after she was vetted on the issue of abortion rights and race-consciousness in higher education admis sions. 58 Similarly, Joe Biden nominated Ketanji Brown Jackson to be the first Black American woman on the Supreme after she had been vetted on the same issues. 59 54 John Gramlich, How Trump Compares with Other Recent Presidents in Appointing Federal Judges , Pew Research Center (Jan. 13, 2021), https://www.pewresearch.org/fact tank/2021/01/13/how-trump-compares-with-other-recent-presidents-in-appointing-federal -judges/ 55 Senate Votes to Change Filibuster Rules for Supreme Court Nominees, C-SPAN (Apr. 6, 2017), https://www.c-span.org/video/?426083-1/senate-votes-change-filibuster-rules supreme-court-nominees (last visited Dec. 14, 2025). 56 John Gramlich, How Trump Compares with Other Recent Presidents in Appointing Federal Judges , Pew Research Center (Jan. 13, 2021), https://www.pewresearch.org/fact tank/2021/01/13/how-trump-compares-with-other-recent-presidents-in-appointing-federal -judges/ 57 See e.g. Michael J. Gerhardt, The Federal Appointments Process: A Constitutional and Historical Analysis (2d ed. 2018). 58 What They’re Saying About Judge Sotomayor , THE WHITE HOUSE ARCHIVES (May 26, 2009), https://obamawhitehouse.archives.gov/the_press_office/What-Theyre-Saying About-Judge-Sotomayor-6-19-09 (last visited Dec. 14, 2025). whitehouse.gov 59 Sonia Sotomayor Sworn In as First Hispanic Justice of the Supreme Court, History (Aug. 8, 2009), https://www.history.com/this-day-in-history/August-8/sonia-sotomayor sworn-in-first-hispanic-justice-of-the-supreme-court and Congressional Research Service, Ketanji Brown Jackson: Supreme Court Nomination and Confirmation, CRS Report R47050 (Apr. 7, 2022), https://www.congress.gov/crs_external_products/R/PDF/R47050/ R47050.1.pdf

112