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January 25, 2017

And then there were two: Prez Trump's SCOTUS pick now reportedly between Circuit Judges Hardiman and Gorsuch

This CBS News article, headlined "Trump Supreme Court justice pick narrows to two names," it seems that two circuit judges are the men now most likely to be picked by the new Prez to replace Justice Scalia. Here are the details:

The choice to fill the Supreme Court vacancy left by the death of Justice Antonin Scalia is down to two names -- Denver-based U.S. Court of Appeals Judge Neil Gorsuch and U.S. District Court Judge Thomas Hardiman of Pennsylvania, according to two sources close to the selection process.

Gorsuch has a slight edge -- CBS News’ Jan Crawford reported that Gorsuch was the front-runner over the weekend. But as Mr. Trump narrows the field, “many voices” are “making calls” on Hardiman’s behalf, and he cannot be ruled out, one source said. Hardiman has to be considered a serious contender, just on the heels of Gorsuch.

Tuesday’s White House meeting with Senate leaders and members of the Judiciary Committee is designed to be a general discussion to see if any names on Trump’s list of 21 potential high court nominees would present problems. It is not designed to elicit specific endorsements or opposition to any specific nominee. From the White House perspective, it is viewed as a gesture of respect of the Senate advise-and-consent role.

Both Hardiman and Gorsuch are regarded as conservative, but neither is thought by the White House to be unconfirmable. Nor are they nominees who would, the White House believes, elicit a massive Senate Democratic uprising. That is the working theory, but confirmation fights in the modern era have been unpredictable. There is a sense within the White House that 10 Senate Democrats up for re-election in 2018 from pro-Trump states are particularly vulnerable and MAY vote for confirmation -- hence the White House’s desire to move as rapidly as possible to preserve its leverage.

Gorsuch is a former Washington, D.C. lawyer and Supreme Court clerk educated at Harvard and Oxford who is considered a solid conservative. He sailed through his Senate confirmation in 2006, and was even introduced by both the Republican (then-Sen. Wayne Allard) and Democratic (then-Sen. Ken Salazar) senators from his home state of Colorado...

Selecting Hardiman would diversify the high court in one way -- if confirmed, Hardiman would be the only one on the high court without an Ivy League degree. The Massachusetts native became the first person in his family to go to college when he attended the University of Notre Dame. He paid his way through law school at Georgetown by driving a taxi....

Mr. Trump’s team believes Gorsuch is significantly less likely to inflame the left, while also being an acceptable choice to the far right. Gorsuch sided with Hobby Lobby in the Obamacare contraception case and wrote a book about assisted suicide that indicated his pro-life views. Before joining the bench, Gorsuch took few if any controversial positions as a D.C. lawyer in private practice or during his brief stint in the civil division of the Bush Justice Department.

Hardiman ‎is also seen as a solid conservative, but with a slightly more enigmatic record. Hardiman serves on the same court as President Trump’s sister, Maryanne Trump Barry.

Sentencing fans should know that both Judges Gorsuch and Hardiman have a significant history with sentencing appeals given their extended tenures on circuit courts, but Judge Hardiman also has history as a district judge from 2003 to 2007. I always think his kind of professional history is a plus for Supreme Court justices, and it strikes me as especially notable that Judge Hardiman was involved in sentencing federal defendants both before and after Booker made the guidelines advisory.

January 25, 2017 at 11:23 PM | Permalink

Comments

I retain, sorry for the disagreement, my stance Garland was de facto robbed.

If Scalia died in February 2017, these would appear to be pretty good picks for a conservative President to make. SCOTUSBlog has had helpful profiles of leading candidates.

Posted by: Joe | Jan 26, 2017 11:34:12 AM

It may be my own biases showing but I can't help but think the Barry connection is the tipping point. It would be for me if I were in Trump's shoes. She can provide a trusted perspective that no else can to Trump and my understanding is that they do get along brother-sister wise.

As for the nominees themselves my impression is that both are a slightly more conservative version of Garland. Am I wrong to think that?

Posted by: Daniel | Jan 26, 2017 11:51:37 AM

It may be my own biases showing but I can't help but think the Barry connection is the tipping point. It would be for me if I were in Trump's shoes. She can provide a trusted perspective that no else can to Trump and my understanding is that they do get along brother-sister wise.

As for the nominees themselves my impression is that both are a slightly more conservative version of Garland. Am I wrong to think that?

Posted by: Daniel | Jan 26, 2017 11:51:38 AM

Sorry for the double post, don't know how that happened...anyway I came back because I just came across this link:

http://www.politico.com/story/2017/01/trump-supreme-court-pick-234202

"Judge Maryanne Trump Barry, who serves with Hardiman on the U.S. Court of Appeals for the 3rd Circuit, has spoken to her brother in favor of elevating him to the high court, according to two people familiar with the conversations.

“Maryanne is high on Hardiman,” said one adviser who has spoken directly with the president about the matter."


So it seems like my intuition on the matter is correct.

Posted by: Daniel | Jan 26, 2017 12:19:54 PM

Sorry for the double post, don't know how that happened...anyway I came back because I just came across this link:

http://www.politico.com/story/2017/01/trump-supreme-court-pick-234202

"Judge Maryanne Trump Barry, who serves with Hardiman on the U.S. Court of Appeals for the 3rd Circuit, has spoken to her brother in favor of elevating him to the high court, according to two people familiar with the conversations.

“Maryanne is high on Hardiman,” said one adviser who has spoken directly with the president about the matter."


So it seems like my intuition on the matter is correct.

Posted by: Daniel | Jan 26, 2017 12:19:54 PM

"a slightly more conservative version"

Probably so. Garland, a Clinton appointee, was based on rankings ideologically around Breyer. Let's go to the SCOTUSBlog profile on Hardiman.

"During his nearly ten years as a federal appeals court judge, Hardiman has weighed in on a variety of hot-button topics important to Republicans, and his votes in these cases have consistently been conservative." He is compared to Alito.

Doesn't sound marginally different to me. YMMV. Neil Gorsuch appears to be somewhat less conservative, but Scalia supporters appear to find him fine. Again, sounds a tad different than someone marginally more conservative than Garland.

Posted by: Joe | Jan 26, 2017 1:20:52 PM

"appears to be somewhat less conservative"

eh ... guess it depends on who you ask

Posted by: Joe | Jan 26, 2017 1:35:29 PM

The candidates are all lawyers. It makes no difference whom Trump nominates. The result will be catastrophic for the nation. Even if someone were to appoint someone not a lawyer, after living in Washington for a short time, he would adapt and assimilate to its big government, rent seeking, Babylonian culture. Gayer than San Fran. Richer than New York. More corrupt and amoral than New Orleans. The Supreme Court must be moved to the middle of the nation, where real American culture resides.

The number of Justices must be changed to an even number, to end 5-4 decision. In an even vote, the lower appellate court decision stands, and becomes the law of the land. In most cases, the lower courts are obeying prior Supreme Court decisions.

The number of Justices should be increased to 500. If they are going to lawlessly legislate from the bench, then give them the size of a legislature. Judicial review is prohibited by Article I Section 1 of the constitution. It gives "All legislative Powers" to a Senate and House of Representatives.

Anyone who has passed 1L should be excluded from consideration. There would be an immediate upgrade in the intelligence and morality of the decision, not to mention the clarity of the decision writing. Lawyers are only loyal to their profession, and not to our nation. Many are active traitors, zealously taking the side of the enemies of the nation, internal and external.

These changes could be enacted in a Judiciary Act.

Posted by: David Behar | Jan 26, 2017 9:07:49 PM

The latest page at SCOTUSBlog on Hardiman seems to tone down the conservative aspect for some reason.

Posted by: Joe | Jan 31, 2017 12:30:50 PM

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