ABC News has learned that Judge Neil Gorsuch has emerged as the leading contender to fill the Supreme Court vacancy, and his nomination is expected as early as next week, according to sources familiar with the selection process.
Gorsuch, 49, is currently a judge on the 10th Circuit Court of Appeals, to which he was nominated by President George W. Bush in 2006 and confirmed by voice vote. He would be the youngest Supreme Court nominee in about 25 years.
I wrote about him a few days ago. He looks like an A+ pick, with Hardiman seemingly solid also but not as much of a known quantity. One point of comparison: Gorsuch is known as a “feeder judge,” meaning that many of his law clerks have gone on to clerk for the conservative justices on the Supreme Court. That’s a sign of the esteem in which he’s held by the Roberts Court; a “feeder judge” usually gets to be a “feeder” because he’s seen as elite and ideologically influential and tends to attract top-flight clerks. (Gorsuch was himself a law clerk for Anthony Kennedy on the Court.) Hardiman is also “known to attract the highest-quality law clerks” but as far as I know he’s not a “feeder judge,” for what it’s worth.
But maybe that’s a point in his favor. As noted last night, Hardiman comes from a blue-collar background and wasn’t fed through the same Ivy League legal pipeline as Gorsuch and the justices currently on the Court. A populist president might find that more appealing than Gorsuch’s Oxford/Harvard background. Hardiman has other advantages too, as Quin Hillyer smartly notes:
Trump’s sister, Judge Maryanne Trump Barry, serves on the same circuit court as Hardiman and reportedly has recommended him quite highly to her brother. Personal connections matter a great deal to Trump…
Trump likes rewarding those who were “nice” or “good” to him. Hardiman hails from Pennsylvania, which was key to Trump’s victory. Gorsuch is from Colorado, which gave a 5 percent plurality to Hillary Clinton.
[O]n substance, Hardiman in his decisions seems to have a particular predisposition to siding with police, and with longer criminal sentences. This plays right into the single biggest law-related issue for Trump, hitting him at an instinctual/emotional level rather than at the level of abstruse constitutional doctrine.
All good points, especially the one about Trump’s sister. His top aides are his kids; of course he’s going to give priority to what his sister tells him. On the other hand, because Hardiman’s philosophy is a bit more enigmatic than Gorsuch’s, there’s greater risk that he’ll be a centrist on the Court, which will have conservatives furious at Trump. A detail from the Pittsburgh Post-Gazette story linked above:
Richard Heppner Jr., who went to Harvard Law, served as one of four law clerks for Judge Hardiman in 2010. The one-year appointment, he said, was a great experience…
Although Judge Hardiman tends toward conservative values, Mr. Heppner said, those don’t color his work on the court.
“I don’t think he really has set ideas about particular hot-button issues that would lead him to pre-judge a case that came before him,” he said.
True, you don’t want a justice “prejudging” cases — but after the psychological scarring Republicans have suffered from William Brennan and David Souter (and, to a lesser extent, Anthony Kennedy), the idea of a Court nominee who doesn’t have “set ideas about particular hot-button issues” makes me nervous. We’ll see. One interesting point raised by a lawyer friend of mine: Nominating Gorsuch might help encourage Kennedy to retire sooner rather than later, which is another point in his favor. As I mentioned before, Gorsuch clerked for Kennedy and has known him for years; if he ends up as the pick, Kennedy may conclude that any doubts he had about Trump’s wisdom in filling Supreme Court vacancies have now been eased and he can step down assured in the knowledge that his successor will be top-notch too.
It’s not worth spending much energy on a “Gorsuch or Hardiman?” debate, though. Presumably whoever isn’t picked this time will be the frontrunner next time, and with three justices aged 78 or older, odds are good that there will be a next time for the Trump administration. That may also be driving Trump to look at Hardiman: With good reason to believe that he’ll have a chance to appoint Gorsuch eventually, why not lead with the “populist” judge? For what it’s worth, though, a Trump advisor told Guy Benson today that it’s not quite true that the choice has narrowed to the two of them — and given how much Trump loves drama, I tend to believe him. What would be Trumpier than lulling people into believing that Gorsuch or Hardiman is the nominee before unveiling Ted Cruz?
Oh, and as for the timing of the announcement next Thursday, there’s sound strategic logic for that. That’s the day that the confirmation hearing for Andy Puzder as Labor secretary will be held. Democrats are going to tear him apart with old soundbites about automation and the capabilities of his workers. A new SCOTUS nominee is a smart way to bury that news.
Update: Now that I think further about it, it could be that Trump has intended to nominate Hardiman for awhile now, partly because of his conservative record, partly because of his working-class background, and partly because of the recommendation of his sister. The point of hyping Gorsuch, the former Kennedy clerk, may be to nudge Kennedy into believing that if he retires soon, his clerk is waiting in the wings to replace him. But the longer Kennedy waits, the more things may change. Trump could end up with another vacancy to fill sooner rather than later.