When Donald Trump released his first list of potential Supreme Court nominees last May, Neil Gorsuch’s name was not on it. The inner circle of Trump’s advisers were aware of Gorsuch’s lofty reputation as a judge. Still, they kept him off the list because they hadn’t fully studied his judicial record, his years as a private lawyer, and his personal life. Once they did, he impressed them, in the words of a Trump researcher, as “almost too perfect.”
But the candidate’s advisers—Steve Bannon, lawyer Donald McGahn, and Federalist Society executive vice president Leonard Leo—weren’t ready to single him out. Instead, in September, they expanded the list from 11 to 21 candidates. And a main reason was to put Gorsuch’s name on it. But by adding 10 more names, it didn’t create a stir or look like favoritism.
The list, which had been Trump’s idea, was soon pared to six people, five men and one woman (appeals court judge Diane Sykes). Then it shrank to four men who were personally interviewed by Trump. One of them, district court judge Amul Thapar of Kentucky, had been put on the list by Senate majority leader Mitch McConnell.
On January 14, with the list down to three, Trump interviewed Gorsuch for 45 minutes at his office in Trump Tower. It went well, but Gorsuch wasn’t as dazzling as Thomas Hardiman, another appeals court judge, was in his interview. Hardiman was prepared. He came in with a binder.
Hardiman had the advantage of sitting on the Third Circuit court with Trump’s sister, Maryanne Trump Barry. She spoke highly of him. “She likes him,” Trump told aides.
The final candidate interviewed by Trump was still another appeals court judge, William Pryor. He had the support of many conservatives, including Jeff Sessions, Trump’s nominee for attorney general. Sessions had nice things to say about Pryor, who succeeded him as Alabama attorney general when Sessions was elected to the Senate in 1996. But he said all those on the list were worthy.
The three finalists were all the right age to serve 20 years and probably more on the Supreme Court—an important consideration. Gorsuch is 49, Hardiman 51, Pryor 54. So age didn’t favor one over another. But ease of gaining Senate confirmation did. Hardiman was considered the most confirmable, Gorsuch second, Pryor third.
Pryor was viewed by Trump and his advisers as the most conservative and certainly the most outspoken, having called Roe v. Wade an “abomination.” Gorsuch was next, Hardiman slightly less conservative. But the assessment of their conservatism was subjective. It depended in part on the cases on which they had written opinions.
It came down to Gorsuch and Hardiman. I think Gorsuch was assisted by which vacancy he would be filling. The empty seat had belonged to Justice Antonin Scalia, who died a year ago. And Trump had said during the campaign that he would appoint a Scalia-like replacement.
Gorsuch best fits the Scalia model. Like Scalia, he is a great writer, though his opinions are less biting than Scalia’s. He knew Scalia and went fly fishing with him in Colorado, Gorsuch’s home state. That event has been memorialized in a now-famous picture of the two wading in a river. Also, three of Gorsuch’s law clerks went on to clerk for Scalia. In short, his connection to Scalia gave Gorsuch a powerful assist.
At last week’s East Room ceremony at the White House in which he introduced Gorsuch, Trump said the “image and genius” of Scalia were “in my mind throughout the decision-making process.” Scalia’s widow, Maureen, was in the audience. “Please stand up,” he said to her. “Thank you, Maureen.”
Following Trump, Gorsuch sounded like Scalia. “In our legal order it is for Congress and not the courts to write new laws,” he said. “It is the role of judges to apply, not alter, the work of the people’s representatives. A judge who likes every outcome he reaches is very likely a bad judge”—here he was interrupted by laughter—”stretching for results he prefers rather than those the law demands.”
To repeat the numbers on the winnowing of candidates, it went from 21, to 6, 4, 3, 2, and finally 1. When Trump saw Sykes’s name on the list of six, he recalled the opposition of radio talk show host Charlie Sykes to him in the Wisconsin primary, which he lost. Trump thought, wrongly, that he was the judge’s husband. They were married and had two children before divorcing in 1999.
Leonard Leo, who was responsible for making the selection process orderly and thorough, insists none of the final three had allies inside the selection proc-ess who lobbied for his nomination. But they did have supporters. Leo, by the way, was largely responsible for the lists. He did not advise Trump on whom to choose. He says Trump always intended to make the final list public.
Hardiman’s biggest supporter was former Pennsylvania senator Rick Santorum. A Trump aide described Hardiman as “Santorum without the edge.” Trump read Santorum’s book Blue Collar Conservatives and agreed with its thesis that Republicans needed to appeal to neglected working-class conservatives.
Just before the Indiana primary on May 3, Trump called Santorum and asked for his endorsement. Santorum had earlier dropped out of the presidential race. He said no. After Trump locked up the GOP nomination by winning Indiana, he called Santorum again, just after Ted Cruz quit the race.
This time, Santorum had a proposition. He would endorse Trump if he released the list of those he was considering for the High Court. And he wanted his friend Hardiman’s name on the list. Trump agreed. He put out the list with Hardiman on it sooner than expected and promised to pick his nominee from it. Santorum examined the list, didn’t find any nonconservatives, and endorsed Trump.
They talked once more when Santorum came to Trump Tower just before Christmas. Trump told aides at the meeting that Santorum had been for Cruz. He hadn’t been. Santorum urged Trump to pick Hardiman. He argued that Trump had done nothing for Pennsylvania—Hardiman lives in the Pittsburgh area—in choosing people for his new administration. But the state had delivered the presidency to Trump, Santorum said. Trump was noncommittal. He hadn’t yet met Gorsuch.
Hardiman may have a second shot at the Supreme Court. Justice Anthony Kennedy, a Reagan nominee, is rumored to be ready to retire this summer. Hardiman is already vetted and considered to be confirmable. “That will be a tougher confirmation,” Leo says. “No one is off the table.”
Guiding the nomination process wasn’t Leo’s last act. He went on a leave of absence from the Federalist Society last week to run the confirmation effort. It was ready to go, with $10 million raised for TV ads, once Gorsuch was tapped.
In 2006, Gorsuch wrote a book entitled The Future of Assisted Suicide and Euthanasia. It is scholarly work and not polemical, but his opposition to euthanasia is clear. Suspecting Democrats might try to use the book against Gorsuch, a 20-page defense of the book was prepared in time for his nomination. A “memo for social conservatives” was also put together.
Rarely has such an organized campaign for a court nominee been unleashed so quickly. One of the aims of its organizers was to give Trump a process with which he would be comfortable. They gave him that. And when Gorsuch is sworn in as the ninth justice of the Supreme Court, he will no doubt be thrilled.
Fred Barnes is executive editor of The Weekly Standard.
