Two news outlets are reporting that Third Circuit Judge Thomas Hardiman is being actively considered by President-elect Donald Trump for nomination to the Supreme Court. I tend to think he is a longshot, only because his record seems less rigidly conservative and less aggressively ideological than those of the other leading candidates I’ve seen. But I hope I’m wrong about that, and it’s exciting to see a Third Circuit judge getting the attention that he — and the court as a whole — deserve.
Josh Gerstein of Politico reported today that Trump’s transition team has identified Hardiman as one of “about eight” who are leading contenders for the nomination.
This echoes comments by CBS chief legal correspondent Jan Crawford on Face the Nation on December 25:
CRAWFORD: Well, you know, Trump released a list before the election of — of potential nominees that he would consider. And my sources say he is sticking to that list. They have narrowed it down to just a handful of highly qualified, very respective — respected appellate court judges. I mean these are conservative legal rock stars. I mean this is not going to be a battle over qualifications. This will be a battle over ideology.
DICKERSON: Any top names — not to play this ridiculous game, but I’ll start it there (ph).
CRAWFORD: Yes. Yes. Yes, I mean I think — no, no, no, because this is ongoing right now. This is something, to Major’s point, they are going to move quickly on this. They’re — they’re narrowing their focus on a handful, like I said, of appellate court judges. Bill Pryor from the Atlanta based Federal Appeals Court. Thomas Hardiman, a judge on the Philadelphia based Appeals Court. Steve Colloton, from out in Iowa upon the U.S. Court of Appeals, the Eighth Circuit. A judge, Diane Sykes, on the Seventh Circuit. And Joan Larsen, on the Michigan Supreme Court. But, again, all highly qualified. You — you can’t argue with their credentials.
As I’ve written here and been quoted saying in a recent Hardiman media profile, I agree that Hardiman is a respected, qualified “conservative legal rock star.”
Gerstein’s Politico article includes brief descriptions of each of the eight nominees named. For Hardiman, he writes:
Thomas Hardiman, 51
Judge, 3rd Circuit Court of Appeals
Hardiman spent about three years as a federal judge in Pittsburgh before being nominated to the 3rd Circuit in 2006. He’s one of the lesser-known judges still believed to be in active consideration for Trump’s first Supreme Court pick.
A 2007 ruling Hardiman wrote upheld the constitutionality strip searches of jail prisoners regardless of how minor an offense they were accused of. The Supreme Court later endorsed his decision, 5-4.
While Hardiman has backed First Amendment rights in the context of political donations, he took a narrower view in a 2010 suit over an arrest for videotaping a police officer during a traffic stop, holding that there was no clearly established First Amendment right to record such an event.
Hardiman won favor with gun rights advocates for a 2013 dissent that said New Jersey was violating the Second Amendment to the Constitution by requiring those seeking to carry a handgun to demonstrate a “justifiable need” for such a permit.
Trump may be able to get some special insights into Hardiman, since the president-elect’s sister, Judge Maryanne Trump Barry, serves on the same appeals court. Hardiman graduated from Notre Dame and went to law school at Georgetown. His fans have noted that he drove a taxi to support himself while earning his law degree.
As an aside, Hardiman’s fellow short-lister Joan Larsen was my wife’s con law professor at Michigan. Suffice to say she wasn’t my wife’s all-time favorite law professor.
A hat tip to Howard Bashman’s How Appealing for both reports.