- Supreme Court Justice Anthony Kennedy announced his retirement last month.
- Now President Donald Trump has another vacancy to fill.
- 3rd Circuit Court Judge Thomas Hardiman was the runner-up to Supreme Court Justice Neil Gorsuch the last time Trump had a vacancy to plug.
- Hardiman is picking up late momentum.
As mere hours remain before President Donald Trump is set to announce his selection to replace Justice Anthony Kennedy on the Supreme Court Monday night, a late addition to his short-list of contenders seems to be picking up steam.
That candidate is 3rd Circuit Court Judge Thomas Hardiman, who came in a close second to Justice Neil Gorsuch the last time Trump was filling a Supreme Court vacancy.
The New York Times reportedSunday that Hardiman, a late addition to Trump’s final four, has been the subject of fresh interest by the president, according to people close to the selection process. Trump “has peppered associates with questions” about the judge, The Times reported.
Meanwhile, The Washington Post reported that week that Trump was talking more about both Hardiman and fellow short-lister from the 7th Circuit Court, Judge Amy Coney Barrett, as he felt DC Circuit Court Judge Brett Kavanaugh, another finalist, was the choice being pushed upon him.
Add to that Senate Majority Leader Mitch McConnell’s recommendation that he pick either Hardiman or 6th Circuit Court Judge Raymond Kethledge, the last of the four finalists, because they would have easier confirmations than Barrett or Kavanaugh, as The Times reported, and Hardiman is picking up late momentum.
Hardiman, 52, was voted onto the appeals court in 2007 by a 95-0 tally. Both Senate Minority Leader Chuck Schumer and Democratic Sen. Dianne Feinstein of California, the ranking member of the Senate Judiciary Committee, voted to approve him.
Hardiman also has the backing of Trump’s closest judicial source: his sister.
Maryanne Trump Barry, a fellow 3rd Circuit judge, holds a high opinion of Hardiman. As an adviser who spoke with the president told Politico last year, “Maryanne is high on Hardiman.”
Those who know the conservative judge say there’s another trait that could be attractive to Trump.
“I don’t know that I can think of anybody that seemed as down-to-earth as he is,” Carter Phillips, a Washington, DC, lawyer who has argued before the Supreme Court more than any other attorney in private practice, told Business Insider last year.
Phillips said he has argued a pair of cases in front of Hardiman, been a part of a few panels with the Pittsburgh-based judge, and had a handful of Hardiman’s former clerks work at his law firm, Sidley Austin.
Hardiman, at 37, was nominated by President George W. Bush to serve on the US District Court for the Western District of Pennsylvania. He was nominated to the appeals court four years later.
As SCOTUSblog noted, Hardiman has reflected originalist opinions on Second Amendment cases. On abortion-related issues, Hardiman has not weighed in directly.
Those who spoke with Business Insider about Hardiman said he would likely fall somewhere between Justice Samuel Alito and Chief Justice John Roberts ideologically.
‘There’s no question about his conservative bona fides’
Former US District Judge Robert Cindrich, who hired Hardiman to join his Pittsburgh firm when Hardiman moved to the city, said he “tries to be humanistic” and “tries to solve problems” in a way similar to Roberts.
“That might be somewhere where he might fit,” Cindrich told Business Insider last year. “For sure he’s a conservative. In his philosophies, he is a Republican, There’s no question about his conservative bona fides. He was active in the Republican Party when he came to Pittsburgh – very successful at that, by the way – so you would have to say he’d be of the conservative mould. How far, it’s very hard for me to say.”
“Whether he is as strict an originalist as Justice Scalia, I can’t say,” he said. “But whether he would pay heed to the word of the Constitution, I know he will. There’s no question.”
But Cindrich, a Democrat, also said he considered Hardiman to be “sufficiently forward-thinking and thoughtful.”
Echoing Phillips’ assessment, Cindrich said Hardiman is the consummate “people person.”
“[It’s] one of the reasons he was so successful as a district judge,” Cindrich said. “He wasn’t there very long. They picked him out as a star, which he was, and got him to [that] circuit court appointment.”
Phillips said Hardiman’s clerks say they “love him.”
“But they also say he’s open-minded, likes to talk through the issues, stays engaged with them after they complete their clerkship,” he said. “From my perspective, he’ll likely be pro-business, and he’ll be a lot like Justice Scalia in terms of his overall approach to the cases. I think he’ll probably be good for most of my clients.”
Like Cindrich, Phillips said he expects Hardiman would fall somewhere between Alito and Roberts ideologically and that he would be surprised if the judge ended up closer to the more moderate Justice Anthony Kennedy.
“At least based on everything I’ve read on him – which I won’t say is that much, I won’t start reading a judge’s opinions until I have a nominee in hand – everything I’ve heard about him and read about him suggests he will be a solid conservative,” Phillips said. “The same way I knew that Merrick Garland was going to be a solid liberal if his nomination hadn’t stalled.”
Phillips said it was “probably not an unfair comparison” to make that Hardiman would be for the right what Garland, the DC Circuit Court of Appeals judge who was nominated by President Barack Obama for Scalia’s vacancy, was for the left.
The White House did not respond to a request for comment from Business Insider on Hardiman’s chances.
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