Seven days before President Trump is expected to announce a nominee to fill the Supreme Court’s vacant seat, pundits are speculating that 3rd Circuit Court of Appeals Judge Thomas Hardiman’s chances of earning the nod are rising.
While different lists of finalists from Trump’s lists are being floated by pundits, Hardiman has long been thought to be a top contender.
Educational diversity
If nominated and confirmed, Hardiman would serve as the only Supreme Court justice without an Ivy League degree on his resume. Hardiman earned his bachelor of arts degree at Notre Dame and then briefly worked as a taxi driver before earning his law degree at Georgetown University in Washington. Hardiman was reportedly the first in his family to graduate from college.
At 51 years old, Hardiman would become the youngest justice serving on the high court.
Immigration politics
Hardiman’s work on behalf of immigrants near the start of his career appears to represent a different approach to illegal immigration than the one President Trump espoused on the campaign trail.
During his Senate confirmation proceedings to serve as a district judge in 2003, Hardiman spoke about becoming fluent in Spanish, studying in Mexico and doing pro bono work for Ayuda, a legal aid clinic in Washington.
“I volunteered at Ayuda, in the office, on a regular basis, and I did everything from fingerprinting and interviewing persons of Hispanic origin who entered the country without inspection and who were seeking work authorization permits,” Hardiman said in 2003. “That is how I started at Ayuda, and then, when I got my law degree and my license to practice here in the District of Columbia, I represented several immigrants who had entered without inspection.”
Hardiman said during the hearing that his first case as a trial lawyer was to help an immigrant from El Salvador achieve political asylum in the United States.
On the campaign trail, Trump expressed a desire to “curb” foreign worker admissions, and as president, he has begun preparing action to thwart certain refugees from entering the U.S. Whether Hardiman’s work history hampers his standing in Trump’s eyes is not clear, but Hardiman could benefit if Judge Maryanne Trump Barry, the president’s sister, puts in a good word for her colleague. The president’s sister serves with Hardiman on the 3rd Circuit.
Hardiman’s record
Hardiman’s record may quash concerns Trump may have about his conservative credentials in certain areas. Hardiman, who moderated a panel at a Federalist Society conference on Justice Antonin Scalia’s legacy, appears to share the late justice’s originalist approach on the issue of gun rights. Hardiman dissented in Drake v. Filko, where the majority ruled that the Second Amendment allowed a New Jersey law to force residents to show a “justifiable need” to carry a handgun in public.
But Hardiman’s record on free speech may give some rock-ribbed conservatives pause. In B.H. v. Easton Area School District, Hardiman dissented in a case in which the majority ruled that a school should not ban 12-year-olds from wearing a bracelet saying, “I ♥ boobies! (KEEP A BREAST).” Hardiman’s dissent argued that the First Amendment does not protect the bracelets.
“In sum, 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,” Hardiman wrote.
“In this close case, the “I ♥ boobies! (KEEP A BREAST)” bracelets would seem to fall into a gray area between speech that is plainly lewd and merely indecorous,” Hardiman continued. “Because I think it objectively reasonable to interpret the bracelets, in the middle school context, as inappropriate sexual innuendo and double entendre, I would reverse the judgment of the district court and vacate the preliminary injunction.”
And on the death penalty, a SCOTUSblog analysis of Hardiman’s work found that he “has generally — but not always — voted in favor of the state and against the inmate.” The death penalty has become a hot-button issue at the high court again in recent months, and the next Supreme Court justice could have a big effect on how the court rules on such cases.
Confirmation chances
Hardiman’s experience in previous Senate confirmation hearings could benefit him if Trump taps him as the Supreme Court nominee. Hardiman sailed through confirmation proceedings by a unanimous 95-0 vote for the 3rd Circuit judgeship five months after President George W. Bush nominated him.
Hardiman, who lives in Pennsylvania, developed a relationship with the late Pennsylvania Sen. Arlen Specter and reportedly registered as a Republican in 1994. According to a Pittsburgh City Paper profile of Hardiman from June 2003, Hardiman “became the Republicans’ go-to guy when politics and litigation collided” in the Keystone State.
Hardiman’s Republican allies in the Senate would help him as he looked to navigate bruising confirmation proceedings. But his association with partisan politics could be weaponized against him as Democrats look for any opening to slow and block the confirmation of Trump’s Supreme Court pick.
