President Trump reportedly has chosen a final candidate but has asked the staff to make several videos of the finalists in order to conceal the eventual choice that will be revealed to the public on Monday evening. An interesting name on the list caught my attention, Judge Thomas Hardiman of the U.S. Court of Appeals for the 3rd Circuit.
Thomas Hardiman came in a close second last time when he went up against Neil Gorsuch for the replacement of Anthony Scalia. Hardiman was said to have been prepared for the final interview with President Trump at Trump tower in New York, but it was the connection that Neil Gorsuch had with Antonin Scalia that reportedly got him the job as a Supreme Court Judge.
This time, Thomas Hardiman has come up again as a finalist in Trump’s list. The man was placed on the list of Supreme Court nominees originally as a favor to Rick Santorum, who agreed to endorse the President after the May 3rd Indiana primary in exchange for a favor to consider nominating his friend — Hardiman — to the Supreme Court.
President Trump reportedly liked the judge and was very impressed with him, but again, he had not yet met with Gorsuch. Also note that President Trump had also reportedly chosen Gorsuch before he narrowed the list down and after he expanded his list to 21 people, which was done in order to include Gorsuch into the running but without appearing to show that he was favored by the President or his staff.
Could we be looking at a similar situation here with Hardiman? Or will Trump come from complete left field with his pick from someone outside the final four?
— John Roberts (@johnrobertsFox) July 6, 2018
Secondly if the judge is nominated and confirmed, this will be a great victory for second amendment advocates.
Why do I say that? The Washington Post wrote a hit piece yesterday attacking the judge as a second amendment “extremist” who would work to eliminate most of the gun regulations in the United States.
In the wake of mass shootings that have divided the country on the issue of gun control, President Trump is considering nominating to the Supreme Court an appellate judge who has argued that Americans have a constitutional right not only to keep guns at home — as the high court has ruled — but also to carry them in public.
U.S. Appeals Court Judge Thomas M. Hardiman has also written that convicted criminals, including some felons, should be able to recover their right to own and carry guns, as long as their crimes were not violent.
Constitutional-law scholars and advocates on both sides of the gun debate say that Hardiman — who sits on the U.S. Court of Appeals for the Philadelphia-based 3rd Circuit and maintains chambers in Pittsburgh — holds a more expansive view of the Second Amendment than the Supreme Court has articulated to date. His nomination and confirmation would push the court to the right, they say, making it more likely that justices would agree to hear cases challenging gun laws — and perhaps to strike them down.
Adam Winkler, a law professor at the University of California at Los Angeles who has written extensively about gun laws, said that if Hardiman’s views were law, gun restrictions in states such as California, New York and New Jersey would be struck down, potentially leading to a vast expansion in legal gun ownership.
“He believes the government has very little leeway in regulating guns. He thinks the only types of gun-control laws that are constitutionally permissible are ones that existed at the founding,” said Winkler, author of “Gunfight: The Battle Over the Right to Bear Arms in America.” He described Hardiman as a “Second Amendment extremist.”
Hardiman has said he is fulfilling his duty as a federal judge to apply the Constitution, regardless of his policy preferences or principles. “No matter how laudable the end, the Supreme Court has long made clear that the Constitution disables the government from employing certain means to prevent, deter or detect violent crime,” he wrote in a 2013 dissent.
They also argue that it was Justice Anthony Kennedy who was the main reason for the very limited gun rulings over the past ten years and that with his swing vote gone on these cases, the Supreme Court will move decidedly to the right.
Many court watchers believe that Justice Anthony M. Kennedy’s presence on the court had something to do with that silence and that an avowed Second Amendment defender such as Hardiman — or Judge Brett M. Kavanaugh, who has also expressed an expansive view of gun rights and is reportedly among Trump’s top picks for the job — could have a profound effect on the court’s handling of gun-related cases.
Two other judges among Trump’s reported top picks to replace the retiring Kennedy — Amy Coney Barrett and Raymond Kethledge — have thinner records on the Second Amendment, making their positions more difficult to analyze. Conservative radio host Hugh Hewitt, writing in The Washington Post, called Kethledge “exemplary” on gun rights, citing his concurrence with an opinion that described the right to bear arms as “fundamental.”
Experts also believe that Kennedy may have moderated the Supreme Court’s key decision on guns, District of Columbia v. Heller, in which the court struck down the District’s ban on handguns. Scalia, writing for the majority, wrote that Americans have a right to have guns at home and for self-defense but also that “long-standing” gun regulations, such as those prohibiting felons from owning guns, are constitutional.
Sanford Levinson, a constitutional-law professor at the University of Texas, said that while it is impossible to know for sure, he and court watchers from across the political spectrum believe that Scalia included explicit approval of some gun regulation in the opinion to persuade Kennedy, the perennial swing voter, to join the opinion.
He also was on the three judge panel that reversed a lower court judge’s ruling against the Little Sisters of the Poor.
In April 2018, Hardiman was part of a three-judge panel that ruled in favor of the Little Sisters of the Poor in their effort to intervene in litigation challenging regulations issued under the Affordable Care Act. The act contains what is sometimes called the “birth control mandate,” which requires employers to provide their female employees with health insurance that includes access to certain forms of birth control. In 2013, the Obama administration issued regulations to accommodate religious nonprofits, like the Little Sisters, that objected to the mandate for religious reasons, but the Little Sisters challenged the accommodation, arguing that it too would entangle them in efforts to provide birth control. In 2016, the Supreme Court heard oral argument in a group of cases on this question, but (after Scalia’s death) sent the cases back to the lower courts with instructions for the parties to try to work out a deal that would both respect the nonprofits’ religious beliefs and ensure that the women involved still have access to birth control.
In 2017, in response to an order from the president, the Department of Health and Human Services issued interim rules that created both a “religious exemption” and a “moral exemption,” but Pennsylvania challenged the rules, and the Little Sisters sought to enter the case. A federal district court rejected the group’s request, but on appeal Hardiman was part of the three-judge panel that reversed. In his opinion for the panel, Hardiman reasoned that the Little Sisters had a “concrete” interest in ensuring that the religious exemption survives because the commonwealth’s lawsuit could erase the protection that they enjoy under the interim rules.
However… this little nugget dropped:
In a Friday op-ed article for Deseret News, a prominent newspaper in Hatch’s home state of Utah, the longtime Republican lawmaker wrote a defense of the coming nominee amid a highly polarized and evenly split Senate.
“Too much is at stake to allow politics to corrupt the Supreme Court confirmation process,” Hatch wrote. “That’s why in the coming weeks, I will lift heaven and earth to see the president’s nominee across the finish line.”
The op-ed was notable for one reason: Hatch referred to the nominee using the pronouns “her” and “she.”
“Just as he did with Neil Gorsuch, the president has promised to nominate an impartial judge, a wise and seasoned jurist committed to upholding the Constitution at all costs,” Hatch wrote. “But no matter the nominee’s background or credentials, progressives will do everything they can to paint her as a closet partisan, if not an outright extremist.”