We knew about William Pryor and we knew about Neil Gorsuch — and we thought we knew about Diane Sykes, who just wrote a big Second Amendment decision for the Seventh Circuit and who comes from a state (Wisconsin) that Trump would very much like to hold in 2020. The surprise in this Politico piece is that Sykes isn’t the third finalist. It’s Tom Hardiman, a federal judge from the Third Circuit whose profile looks a lot like Gorsuch’s. He’s young (just 51), he comes from a purple state (Pennsylvania), and he spent his career before becoming a judge in private practice, which meant he had virtually no paper trail when he was confirmed as a federal district judge via voice vote in the Senate in 2003. (Gorsuch spent a year at the DOJ before being elevated to the federal bench.) Four years later, Hardiman was made an appellate judge by a Senate vote of 95-0. Like Gorsuch, he shouldn’t face the same degree of fire in confirmation that Pryor would. But then, neither should Sykes. So why Hardiman over her?
Here’s SCOTUSblog’s long profile of Hardiman’s Third Circuit opinions, which covers enough of a range of topics to leave you with no distinct impression of him apart from a general conservative bent. The appeal of Hardiman to Trump, I think, might be biographical: He was apparently the first person in his family to graduate from college and drove a taxi to help pay his way through law school. He’s based in western PA and has some bipartisan cred in that his wife’s family is Democratic and influential in the state. That is to say, Hardiman is a success story that comes straight from Trump’s base — blue-collar, Pennsylvanian, ties to both sides of the political aisle. Even his law-school alma mater of Georgetown, while prestigious, would be a break from the Ivy League stranglehold on Supreme Court appointments. If there’s such a thing as a “populist” pick for the Court, Hardiman might be as close as you can get.
But what about Pryor? It seemed for months like he was the prohibitive frontrunner to replace Scalia, especially given his “in” with Trump via Jeff Sessions. Sure, Pryor’s confirmation battle would have been brutal, but in the end the GOP can always nuke the filibuster to push him through — which they may prefer to do early, thus clearing the way for future SCOTUS nominations. Pushing Pryor out now would be a way of picking a fight to do that. So why is he fading? Politico has the scoop:
As Gorsuch’s fortunes have risen, Pryor’s prospects have dimmed. A 2006 George W. Bush appointee, Pryor is currently the subject of raging debate on an off-the-record list-serv that includes many in the conservative legal and political communities, including many Republican Senate staffers, thanks to his decision to join the majority in Glenn v. Brumby, a 2011 opinion that protected transgenders from workplace discrimination.
“I think everybody on this list probably has something I’m not going to agree with. I think that decision with Pryor probably would be the one that would fall into that category,” said Carrie Severino, the chief counsel and policy director of the Judicial Crisis Network, a conservative legal organization.
John Malcolm, who oversees a legal center inside the Heritage Foundation, acknowledged that, “Bill Pryor has been getting attacked from the right. Which is strange to me.”
Here’s the controversial opinion in Glenn v. Brumby, which Pryor didn’t write but did join. The Eleventh Circuit held that discriminating against transgender people at work violates the Equal Protection Clause because it’s a form of sex discrimination, namely, punishing someone for failing to conform to stereotypes of appearance and behavior associated with their biological gender. Is that disqualifying for Pryor? Before you answer, note that SCOTUSblog’s profile of Hardiman cites an interesting opinion of his own along these lines:
In other cases, Hardiman has been harder to pigeonhole. He wrote for the court in allowing a gender-stereotyping claim by a gay man who described himself as “effeminate” to go forward, reversing the district court’s grant of summary judgment in favor of the company where the man worked, and which ultimately fired him. Hardiman explained that the plaintiff was “harassed because he did not conform to” the company’s “vision of how a man should look, speak, and act – rather than harassment based solely on his sexual orientation.” Hardiman agreed with the company that “every case of sexual orientation discrimination cannot translate into a triable case of gender stereotyping discrimination.” But at the same time, he observed, the company “cannot persuasively argue that because Prowel is homosexual, he is precluded from bringing a gender stereotyping claim.”
It’d be amusing if Pryor is passed over for Hardiman and then Hardiman’s opinion on gender stereotyping and discrimination blows up on the right.
For what it’s worth, Gorsuch looks like the strongest pick of the three to me although I don’t think there are any Souters among them. Now we wait for Trump’s decision. He said this morning that an announcement will come next week. Exit question: Could the real reason behind Pryor’s fade from contention be that McConnell knows he doesn’t have the votes to nuke the filibuster? If just three Republicans refuse to sign on to that, suddenly the entire strategy changes. Trump will need to go with a nominee who can get to 60, which may explain the sudden interest in Gorsuch and, especially, Hardiman.