Judge Thomas Hardiman was almost nominated to the Supreme Court last year to replace Justice Scalia.  Hardiman, who sits on the U.S. Court of Appeals for the Third Circuit, was feted for his “blue-collar credentials” but was ultimately overlooked for the more privileged Judge Neil Gorsuch.  This time around, Hardiman is once again a shortlister for a Supreme Court appointment.

Vital Statistics

Name: Thomas Michael Hardiman

Age: 52 (53 in five days)

Current Position: Judge on the U.S. Court of Appeals for the Third Circuit (since 2007)

Education: B.A. with Honors from the University of Notre Dame; J.D. from Georgetown University Law Center

Clerkships: None

Prior Experience: Private Practice in Washington D.C. & Pittsburgh 1989-2003; Judge on U.S. District Court for the Western District of Pennsylvania 2003-2007.

Jurisprudence

Hardiman is currently a judge on the U.S. Court of Appeals for the Third Circuit, where he has served since 2007 (and previously served from 2003 to 2007 on the U.S. District Court for the Western District of Pennsylvania).  On the Third Circuit, Hardiman has authored about 600 opinions, including around 30 that sparked a concurrence or dissent. Here are some key opinions that reflect Hardiman’s judicial philosophy on constitutional issues:

First Amendment

 

• B.H. ex rel. Hawk v. Easton Area School District – The Easton Area School District banned students from wearing breast cancer awareness bracelets that stated “I ♥ Boobies.”  In response, students brought suit under the First Amendment and the Third Circuit struck down the ban on a 9-5 vote.  In dissent, Hardiman noted that, in his opinion, it was “objectively reasonable to interpret the bracelets, in the middle school context, as inappropriate sexual innuendo and double entendre.”

• Kelly v. Borough of Carlisle – In a civil rights action, the plaintiff argued that he was unlawfully arrested for filming a police officer during a traffic stop.  Writing for the panel, Hardiman found that, if a First Amendment right to film a police officer existed, it was not clearly established, and that the arresting officer was protected by qualified immunity in the case.
• Lodge No. 5 of Fraternal Order of Police v. Philadelphia – In a First Amendment challenge, Hardiman held that the City of Philadelphia could not bar police officers from making campaign contributions to the PAC of the police union.

Second Amendment

• Drake v. Filko – Under New Jersey law, individuals seeking to carry handguns in public must demonstrate a “justifiable need to carry a handgun.”  A 2-1 vote of the Third Circuit upheld this requirement against a Second Amendment challenge.  In dissent, Hardiman argued that the law violated the Second Amendment, arguing that the Supreme Court’s decisions in DC v. Heller and McDonald v. Chicago extend the right to bear firearms beyond the home.

Right to Privacy

• Florence v. Bd. of Chosen Freeholders – This case involved the challenge to the policy of strip searching all arrestees, regardless of how minor the offenses were.  Hardiman wrote for the panel in upholding the policy, holding that officials may strip-search all arrestees even without suspicion of carrying any contraband.  This ruling was upheld by the U.S. Supreme Court on a 5-4 vote.

LGBT Rights

• Prowel v. Wise Business Forms, Inc. – This case involved a Title VII gender stereotyping claim brought by a homosexual employee who alleged severe and pervasive harassment from coworkers.  In response, the Defendant argued that the employee was attempting to claim discrimination based on sexual orientation, which is not cognizable under Title VII.  Hardiman ruled that the employee’s claim was based, not on discrimination based on sexual orientation, but rather on gender stereotypes, finding “no basis in the statutory or case law to support the notion that an effeminate heterosexual man can bring a gender stereotyping claim while an effeminate homosexual man may not.”

Why Trump Could Choose Hardiman as His Nominee

Hardiman was almost the Supreme Court nominee last year because, in many ways, he was (and remains) a politically sound nominee.  He is from Pittsburgh in the Rust Belt, has a (relatively) less-connected background, and has the support of Judge Maryanne Trump Barry, the President’s sister.  Furthermore, Hardiman has a fairly conservative record on the federal bench, while also having two unanimous confirmations under his belt. Additionally, choosing Hardiman as the nominee may put pressure on Democratic Senator Bob Casey, who may choose to back his home-state nominee.

Why Trump Would Not Choose Hardiman as His Nominee

In his current nominee, Trump is looking for ivy league pedigrees and academic writings.  Hardiman doesn’t bring either to the table. Furthermore, Hardiman’s opinion in Prowel may alienate social conservatives.

Expected Lines of Attack

Hardiman’s judicial record can be mined for opposition.  Opponents may attack Hardiman, for example, for permitting the strip searching of all arrestees, even those charged with minor violations.  They may also raise his dissent in Easton and his opinion in Kelly to suggest that Hardiman would defer to government judgments on First Amendment restrictions.

Additionally, gun control advocates are likely to attack Hardiman as a Second Amendment absolutist, based on his dissent in Drake and his view that Heller and McDonald establish a right to bear firearms outside the home (a right not yet endorsed by the U.S. Supreme Court).

Likelihood of Being Nominated

Despite the ringing endorsement of Judge Barry, Hardiman was not chosen for the Supreme Court last term.  His chances are, if anything, slightly worse this time around. Supreme Court selections are ultimately about chemistry as much as they are about ideology.  In 2009, President Obama chose then 2nd Circuit Judge Sonia Sotomayor based largely on Sotomayor’s strong performance in her personal interview.  Given that Trump has already overlooked Hardiman once, his odds may not be as high as those of fresher faces.