President Donald Trump is set to announce his nominee for Anthony Kennedy’s seat on the Supreme Court Monday evening at 9 pm, and by many accounts, a frontrunner for the position is Third Circuit Court of Appeals judge Thomas Hardiman.
Widely viewed as the runner-up to replace Antonin Scalia last year, Hardiman, 53, has been a Trump favorite for a while, but has picked up steam in recent days. Senate Majority Leader Mitch McConnell recommended Hardiman, along with Sixth Circuit judge Raymond Kethledge, to Trump, saying that the two would face fewer obstacles to confirmation than Amy Coney Barrett or Brett Kavanaugh, two other finalists. A report by New York Times’s Maggie Haberman suggested that Trump spent Monday morning “seeking input” from various sources about Hardiman and Kavanaugh; the other rumored finalists, Barrett and Raymond Kethledge, “were not the focus of Mr. Trump’s morning discussions, according to those familiar with the discussions.”
Hardiman has a long and solidly conservative record as a federal judge, both in his current post and in his prior role on a district court. His past nominations have been approved without controversy. He was twice appointed by George W. Bush, and the Senate confirmed him 95-0 for his court of appeals job, with 18 current Democratic senators including Chuck Schumer, Patty Murray, and Bernie Sanders voting yes.
If appointed and confirmed this time around, he will be the only Supreme Court justice to not have attended Harvard or Yale for law school. He went to Georgetown Law Center, which bizarre as it may seem adds a bit of diversity of background to the Court. He was the first in his family to go to college, turning down a Harvard scholarship to attend Notre Dame, paying his way by working as a taxi driver. Hardiman also comes highly recommended by an important person in Trump’s orbit: his sister, Judge Maryanne Trump Barry, a colleague of Hardiman’s on the Third Circuit.
The prospect that Hardiman will vote to overturn Roe v. Wade, and thus that his replacement of Kennedy will end the constitutional right to abortion in America, hangs over a possible confirmation battle. Pro-abortion rights Republican senators, notably Susan Collins and Lisa Murkowski, will be under considerable pressure both from their co-partisans (to back the pick) and by abortion rights groups, who are sure to oppose him vigorously.
The fact that Trump (acting on the advice of the Federalist Society’s Leonard Leo) is considering him strongly suggests that Hardiman is anti-Roe, although Leo told ABC’s George Stephanopoulos that Hardiman is “a little bit less known by conservatives” and his “record … a little bit lighter” than Barrett or Kavanaugh.
But besides being on Trump’s shortlist, Hardiman has not left many clues as to his views on abortion and hasn’t ruled on it during his time on the Third Circuit. That’s helped stoke conservative worries that Hardiman would be a “stealth nominee,” in the mold of former justice David Souter, a Republican choice without a sufficient background record who could become a moderate or even liberal if picked for the Court.
How Hardiman ruled as an appellate judge
As SCOTUSblog’s Amy Howe and Vox’s Dara Lind have noted, Hardiman’s rulings in his 10 years on the appeals court bench are reliably conservative, and particularly so on matters of crime and punishment. He has repeatedly ruled against death row inmates, joined an opinion upholding Delaware's protocol for lethal injections, ruled that strip-searching jail inmates is acceptable under the Fourth Amendment, and concluded that the First Amendment doesn't give citizens the right to videotape police officers, a position which, if applied nationally, could make it much harder to hold officers accountable for police brutality.
He is a consistent supporter of gun rights, writing a dissenting opinion arguing the Court should have struck down on Second Amendment grounds a New Jersey law limiting handgun carry permits to people showing a “justifiable need” to carry handguns in public. He also sided with two plaintiffs challenging a federal law banning felons and some misdemeanants from owning guns; he did not argue that the whole law was unconstitutional, but contended that because the two plaintiffs were only convicted of nonviolent misdemeanors (corrupting a minor and carrying a handgun without a permit, respectively), a ban that applies to them overly burdens Second Amendment rights.
Adam Winkler, a law professor at UCLA and expert on Second Amendment issues, has described Hardiman as a “Second Amendment extremist” who would vote to strike down gun control laws in states like California and New York if put on the Supreme Court.
He has a mixed record on the First Amendment, but it's mixed in a way that should be amenable to conservatives. He sided with an anti-abortion protester who was convicted of violating the terms of a permit and interfering with agency function after he refused orders from park rangers to leave a sidewalk in front of the Liberty Bell Center. And he dissented to side with a mother and son who had been barred from reading from the Bible in a kindergarten "show and tell" session, arguing that barring religious texts infringed on free speech and religious liberty rights.
He wrote an opinion striking down a Philadelphia charter provision barring donations from police officers to the police union’s PAC. While pro-union, the implication of this ruling is that he’s sympathetic to First Amendment challenges to campaign finance regulation, like Citizens United.
On the other side, he sided against the NAACP in a case where it tried to place an ad criticizing mass incarceration in the Philadelphia airport, writing, “I view the City’s restriction a reasonable attempt to avoid controversy at the airport.” He dissented in a case involving a middle school that banned breast cancer awareness bracelets reading, "I ♥ boobies! (KEEP A BREAST)"; the Court ruled that the middle schoolers had a First Amendment right to wear the bracelets, whereas Hardiman wrote in dissent that "the Majority’s approach vindicates any speech cloaked in a political or social message even if a reasonable observer could deem it lewd, vulgar, indecent, or plainly offensive."
Some GOP activists are still concerned
But despite rulings like those, Hardiman has prompted concern among a number of conservative activists who worry he could be a moderate or liberal in disguise, starting in 2017 when he was floated as a contender for Scalia’s seat:
They better be prepared to lose even more of their base if they make a David Souter 2.0 pick like Hardiman because of Trump's liberal sister https://t.co/Maillzsrhi— Jeff B/DDHQ (@EsotericCD) January 29, 2017
Why do I get the feeling Hardiman is going to be a Roberts or Souter instead of an Alito or Scalia? https://t.co/pb4p8E9Ojd— Erick Erickson (@EWErickson) January 29, 2017
For one thing, there’s Hardiman’s reported backer, Maryanne Trump Barry. Barry has fairly strong Republican bona fides. She was first appointed to a district court by Ronald Reagan, and then picked for the Third Circuit by Bill Clinton as an attempt to balance out some Democrats he was appointing. Matthew Stiegler, who runs the Third Circuit–focused blog CA3, has described her as a “moderate-conservative Republican centrist.”
But a lot of conservative activists hate Barry, mostly for a 2000 ruling she made overturning New Jersey’s ban on so-called “partial-birth” abortions. Barry argued that the ban was unconstitutionally vague, potentially encompassing many other types of abortion clearly protected under Roe. The decision also came down shortly after Stenberg v. Carhart, a Supreme Court case striking down a nearly identical Nebraska law. For that reason, even Samuel Alito, then on the Third Circuit, concurred in Barry’s judgment.
That said, because Barry argued in her opinion that the ban was arbitrary for its focus on cases where fetuses are partially outside the uterus, many anti-abortion advocates attacked her for, in the words of Ramesh Ponnuru, “beginning to rationalize a constitutional right to commit and procure infanticide.” It makes sense that anyone Barry endorses might, from the perspective of someone who thinks of her as an infanticide apologist, be suspect by extension.
The influential pseudonymous conservative blogger Allahpundit, in an otherwise quite positive piece on Trump's shortlist, flagged as concerning this quote from a Pittsburgh Post-Gazette profile of Hardiman:
Richard Heppner Jr., who went to Harvard Law, served as one of four law clerks for Judge Hardiman in 2010. The one-year appointment, he said, was a great experience.
“Every day, there was thoughtful, careful attention to the law and arguments,” he said.
The judge, he continued, was conscientious and strove to get the law right, while adhering to the Constitution and precedent.
Although Judge Hardiman tends toward conservative values, Mr. Heppner said, those don’t color his work on the court.
“I don’t think he really has set ideas about particular hot-button issues that would lead him to pre-judge a case that came before him,” he said.
“True, you don’t want a justice ‘prejudging’ cases,” Allahpundit wrote. “But after the psychological scarring Republicans have suffered from William Brennan and David Souter (and, to a lesser extent, Anthony Kennedy), the idea of a Court nominee who doesn’t have ‘set ideas about particular hot-button issues’ makes me nervous.”
There are a handful of Hardiman decisions, flagged by SCOTUSblog’s Howe, that defy conservative orthodoxy by siding with claims of discrimination from marginalized groups. He wrote an opinion allowing a gender stereotyping claim from a self-described "effeminate" gay man, concluding that he was "harassed because he did not conform to [his employer’s] vision of how a man should look, speak, and act.”
He ruled in favor of African-American firefighters challenging a fire department’s residency requirement, on the grounds that it was a form of discrimination against black firefighters not living in the overwhelmingly white area served by the fire department. He noted that while only 3.4 percent of the population covered by the department is black, 0.62 percent of the firefighting force is, concluding, "minority workforce representation that low suggests discrimination."
He’s also ruled in favor of a Honduran asylum seeker fleeing gang violence, a decision that has earned him the enmity of the pro-Trump white supremacist site VDARE.
Finally, the Judicial Common Space score, an influential measure of judicial ideology, places Hardiman somewhere to the left of John Roberts and only slightly to the right of Kennedy: that is, right in the middle of the Court.
Why the Hardiman = Souter arguments don’t make a ton of sense
Cards on the table: I don’t think conservatives have much to worry about with Hardiman. Basically all the evidence marshaled against him is weak.
Take the Judicial Common Space score graphed above. The score attempts to infer the ideology of appellate judges from their appointing president and their two home-state senators, relying on the tradition of “senatorial courtesy” in which the Senate refuses to confirm nominees opposed by senators from their home state (and in which the White House usually consults those senators before making an appointment).
Hardiman’s home-state senators were Arlen Specter (then a moderate Republican, soon to become a moderate Democrat) and Bob Casey (an anti-abortion but otherwise liberal Democrat). So it’s unsurprising that given their scores, he’d wind up appearing pretty moderate. But the score doesn’t rely at all on how Hardiman actually voted as a judge. That limits its effectiveness as a metric.
The Maryanne Trump Barry issue is pure Kremlinological speculation. Whatever you think about her abortion jurisprudence, the idea that she’s pushing Hardiman as part of a secret, shadowy plot to spring a pro-abortion rights justice on her brother seems very far-fetched, especially compared with the more sensible inference that she worked with him for years and respects him as a colleague, and so thinks he’s worthy of a promotion.
As National Review’s Ed Whelan — a leading judicial conservative and Hardiman supporter — notes, Barry testified to the Senate in support of the nomination of her colleague Alito, who proved to be a consistent social conservative once confirmed. “If you are alarmed,” Whelan writes, “I suppose that you also would have been suspicious of this fellow named Antonin Scalia, whom President Carter’s liberal White House counsel, Lloyd Cutler, testified in favor of at his Supreme Court confirmation hearing in 1986.”
And the handful of liberal rulings by Hardiman are easily outweighed by the bulk of his judicial record, which leans strongly conservative and is, if anything, more accepting of government censorship of indecent or politically charged materials than Scalia was. Surely his rejection of the right to film cops and backing of strip searches and the death penalty outweighs a single pro-asylee ruling when judging his law-and-order bona fides.
Obviously, one can’t predict with absolute precision how a circuit court judge will rule on the Supreme Court. The jobs are different; a Supreme Court judge is less obliged to follow precedents she doesn’t like, for instance. And any judge is guaranteed to face issues on the Supreme Court that he didn’t encounter at the appellate level. But based on what we know about Hardiman, he seems like a reliable, law-and-order conservative in the mold of Alito, not a liberal in sheep’s clothing.
Conservative doubts about Hardiman are really doubts about Trump
Underlying all of these concerns is a worry that Donald Trump himself is not very personally committed to social conservative issues like abortion and religious liberty. He identified as pro-abortion rights for years before flip-flopping to run for president as a Republican, he is on his third marriage and had several affairs over the years, he faces numerous credible accusations of sexual assault, and he is by all accounts not personally very religious.
All of this caused the social conservative movement consternation during the primaries and into the general election, but the deal, such as it was, was that they’d go along with his candidacy so long as he appointed judges they liked. That was why Trump released a list of potential Supreme Court candidates as early as May 2016, to reassure judicial conservatives that he would have their back.
Picking Gorsuch, a very vocal and reliable social conservative, did a lot to rebuild trust among that faction. Indeed, “But Gorsuch” is a cliché in right-leaning circles at this point, where Trump’s Supreme Court nomination record has become an all-purpose rationale to excuse his wrongdoing in other areas.
By the same token, though, Gorsuch is one of the few bright areas of Trump’s record for social conservatives, and selecting Hardiman could counteract the progress the Gorsuch pick made in shoring up the group. It would be one thing if Trump had nominated another Gorsuch-like judge who was on the record on issues of importance to social conservatives; that would prove that he was taking their concerns seriously and wanted to honor the deal. But if he went with Hardiman, he would be picking a judge who is conservative on law and order issues that everyone knows Trump is conservative about too, and who is a bit of a cipher on social issues.
With a president who social conservatives trusted more, like George W. Bush, that might not be a problem. But when they already have doubts about Trump’s commitment, a pick like Hardiman without an anti-abortion paper trail is not reassuring.