Patterico's Pontifications

1/30/2017

Donald Trump’s Supreme Court Pick Should Not Be Thomas Hardiman

Filed under: General — Patterico @ 2:00 am

Donald Trump announces his pick for the Supreme Court this week. The top candidates include Judge Bill Pryor of the 11th Circuit, Judge Neil Gorsuch of the 10th Circuit, and Judge Thomas Hardiman of the 3d Circuit. Some news outlets have suggested that Trump may be leaning towards Hardiman, in part because he thinks Hardiman would be easier to confirm, and in part because his sister, Maryanne Trump Barry (another 3d Circuit judge), recommends Hardiman.

Neither is a good reason to pick Hardiman now, and it’s my view that Judge Hardiman is not the best choice to replace Justice Scalia. Thomas Hardiman appears to be a good judge and might make a solid pick down the road. But not now. Not for Scalia’s seat.

By contrast, Pryor and Gorsuch appear to be suitable candidates to follow Scalia — even if they might be a bit tougher to confirm, and may not have the Maryanne Trump Barry seal of approval.

If Trump is ever going to make an aggressive pick, the time is now, when he is still in a honeymoon period. The Democrats are going to demonize anyone Trump chooses anyway, and each of the three front-runners provides ammunition that dishonest Democrats (and in some cases even dishonest conservatives) can use to twist against them. Trump should not be overly concerned with such predictable partisan nonsense.

Nor should conservative supporters of Trump care too much what Trump’s abortion-loving sister, Maryanne Trump Barry, thinks of Hardiman. Some conservatives consider Trump Barry’s endorsement to be the kiss of death, but Ed Whelan, a former Scalia clerk and someone I trust, warns against this reaction. Whelan reminds us that Barry also testified for Samuel Alito, another 3d Circuit judge . . . and while Alito is not quite in the league of Scalia or Thomas, nobody but partisan leftists are upset that he is sitting on the High Court.

But conservatives aren’t just wary of Barry’s opinion. They’re also concerned that Trump might show an outsized deference to his sister’s opinion — especially since Trump palpably has little conception of constitutional law is, or what judges do.

In short, conservatives don’t need just any judge who is going to make Donald Trump’s sister happy. Conservatives need someone who has been battle-tested. Someone who has been confronted with a choice between the correct result and the result approved by our modern-day leftist intelligentsia, multiple times, and has come out on the right side every time.

In my view, Thomas Hardiman does not have enough of a record of solid calls in controversial cases to give judicial conservatives confidence that he can withstand the heat of deciding a nationally debated case that is central to the culture wars. Of the three current front-runners, Bill Pryor and Neil Gorsuch fit that bill more closely.

Hardiman is conservative, no doubt — in a somewhat authoritarian way at times. He is solid on the Second Amendment, where his decisions give the greatest hope to judicial conservatives that he would be willing to stick his neck out for a principle. Hardiman tends to be more authoritarian on the First Amendment and other issues relating to government power.

But most fundamentally, we don’t really know whether he has the backbone to stare down leftist orthodoxy in a tough case. Understand: judging is not a matter of achieving the “right result” but a question of how you get to the result. Whether Hardiman is a consistent enough judicial conservative to replace Antonin Scalia is, in my mind, an open question. I thought John Roberts was a solid pick despite his relatively sparse record, and folks like Ann Coulter disagreed, saying we didn’t have a solid enough basis to know what Roberts would do.

Turned out she was right.

We can’t make that mistake again.

We don’t have to worry about such things if Donald Trump nominates Bill Pryor. Pryor once described Roe v. Wade as “creating out of thin air a constitutional right to murder an unborn child.” He also called Roe the “worst abomination in the history of constitutional law.” Controversial words, to be sure . . . but Donald Trump has shown that someone can win the Presidency saying things nobody thought candidates are allowed to say. Maybe Pryor could be the Donald Trump of judicial candidates — in that limited sense only, I hasten to add.

Do I praise Pryor for these statements because I am drooling for the chance to overrule Roe v. Wade? Not really. Roe should be overruled — but it seems incredibly unlikely, given the strong language of the Casey decision, that it will ever happen. Conservatives had their chance in 1992, with the Casey decision, and Anthony Kennedy blew it. Pro-lifers are not likely to get that chance again.

No, I praise Pryor for these statements because he’s right, and he had the guts to say it. Roe indeed is a stain on our constitutional history. It is easily among the top five worst decisions in the Court’s history. Bill Pryor called a pig a pig. Good for him.

I became sold on Bill Pryor when I read that he once ended a talk with a prayer, saying: “Please, God. No more Souters.” I think it might be worth quoting the last few sentences of that talk, delivered to a meeting of the Federalist Sodiety when Pryor was the Attorney General of Alabama, because it shines a light (in my view, a very positive light) on his priorities:

My concluding observation is a warning that all is not well with the Court. Each of the decisions I praised today was reached by a five to four majority. We are one vote away from the demise of federalism. And in this term the Rehnquist Court issued two awful rulings that preserved the worst examples of judicial activism: Miranda v. Arizona and Roe v. Wade. The proponents of federal power realize, however, that these results can be changed in our favor with a few appointments to the Supreme Court. Perhaps that means that our real last hope for federalism is the election of Governor George W. Bush as President of the United States who has said his favorite justices are Antonin Scalia and Clarence Thomas. Although the ACLU would argue that it is unconstitutional for me, as a public official, to do this in a government building, let alone at a football game, I will end with my prayer for the next administration: Please God, no more Souters.

Beautiful. You don’t have any question where this guy is going to stand on federalism and respect for the Constitution, do you?

Pryor has been tested as an appellate judge as well. Unlike Hardiman, who has not been confronted with many controversial decisions, Pryor has dealt with some hot-button culture war cases, and Pryor has a solid record in these cases. Pryor wrote a lengthy concurrence in Eternal Word Television Network, Inc. v. Sec’y, U.S. Dep’t of Health & Human Servs., defending the right of a television network not to participate in obtaining contraception for employees (by being forced to deliver a form to its health care plan) when doing so would violate the religious beliefs of the principals. Pryor also approved a voter ID law in Georgia in Common Cause/Georgia v. Billups. These are solid decisions that do not garner applause from the leftists in Big Media or the legal profession’s elite.

Nor is Pryor someone who disregards the law in favor of his religious or political views. In fact, one of the knocks against him among religious conservatives is one of the things I admire about him: his role as state Attorney General in bringing ethics charges against Alabama Supreme Court Justice Roy Moore. Moore had defied a federal court order to remove a large Ten Commandments monument from in front of the state Supreme Court. Moore had clearly acted unethically, and Pryor took the actions he was required to take.

Of course, Pryor’s bold statements and decisions may make him difficult to confirm. The question is whether Trump is willing to spend considerable political capital on a judge whom Democrats will try to Bork an an extremist trying to send us back to the days of back-alley abortions with coat hangers. Nothing galvanizes the radical left like a threat to their ability to ensure the continued killing of millions more babies.

If Pryor isn’t in the cards, we could do worse than Neil Gorsuch — named by ABC News for days as the most likely Trump pick. In many ways, Gorsuch is the ideal successor to Scalia, as he shares many of Scalia’s attributes. He is an engaging and entertaining writer. He is an originalist, which is the only legitimate method of constitutional interpretation — but one that Scalia did much to make respectable. Gorsuch is an ardent textualist, like Scalia, and shares Scalia’s disdain for a reliance on fickle and often misleading legislative history.

Quotes from Gorsuch in this Washington Post profile show Gorsuch’s great respect for Scalia:

“The great project of Justice Scalia’s career was to remind us of the differences between judges and legislators,” Gorsuch told an audience at Case Western Reserve University School of Law in Cleveland.

Legislators “may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future,” Gorsuch said. But “judges should do none of these things in a democratic society.”

Instead, they should use “text, structure and history” to understand what the law is, “not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.”

Like Pryor (and Scalia), Gorsuch has stood foursquare for religious freedoms in the face of the assault on those freedoms by the Affordable Care Act. Again, this is the type of thing that upsets the left, as does his unequivocal statement in his book that “all human beings are intrinsically valuable and the intentional taking of human life by private persons is always wrong.” This seems like a fairly straightforward statement, but it is a dog whistle to the left suggesting that he would not vote their way on abortion cases.

Of course, if the left is correct about that, that just means that Gorsuch is, again, an appropriate successor to Antonin Scalia.

Where Gorsuch differs from Scalia, it is often for the better.

He appears to be less combative, which would deprive us all of entertainment value, but which might make for better relations on the Court and a better chance of pulling centrists along towards a conservative opinion.

Gorsuch also differs from Scalia for the better in his views on the Chevron doctrine: the principle that says courts will defer to executive agency interpretations of law when they are reasonable. For most of his career, Scalia tended to apply the Chevron docrtine with few questions, often showing a disturbing deference to executive agency interpretations of laws (though he seemed to hint at a slight change of heart in more recent cases). Gorsuch, by contrast, has been a fierce critic of Chevron — which is, in my opinion, a good thing, as the executive has too much power these days. Allowing the administrative state to serve as all three branches of government without genuine scrutiny from the courts is not what the Founding Fathers had in mind, and Gorsuch seems to understand this.

As I noted, ABC News has been reporting for days that they are hearing Gorsuch is the top contender for the spot. I hope they’re right. My personal choice would be Senator Mike Lee. But as an opponent of Trump’s during the election, Lee is not realistic — and Donald Trump is the President. Gorsuch “looks the part” which is also important to Trump.

But more importantly, by every metric I can assess, Gorsuch seems like the real deal. If we’re looking for a true successor to Antonin Scalia, it’s not Thomas Hardiman. But we could do a lot worse than Neil Gorsuch.

[Cross-posted at RedState. Also cross-posted at The Jury Talks Back. I’ll be commenting at the Jury link and not here, in accordance with my new policy.]

39 Responses to “Donald Trump’s Supreme Court Pick Should Not Be Thomas Hardiman”

  1. Meghan’s coward daddy would personally filibuster Mr. Pryor

    happyfeet (28a91b)

  2. I don’t want Roe v. Wade overturned. If not for Roe v. Wade, Hillary’s margin over Trump would have been 30 million instead of two million. We would have a perpetual Progressive President and Congress.

    And if only Griswold v. Connecticutt had been decided in 1945 instead of 1965, for the best of both worlds.

    nk (dbc370)

  3. pervy justice John Roberts is all about giving the government the freedom to force women to make the unwanted babies

    but he’s also a huge obamacare tax fee tax fee mandate mandate mandate freedom-hating douchebag

    how can we reconcile these divergent views

    happyfeet (28a91b)

  4. this Gorsuch person’s an elitist harvardtrash poopybutt (undergrad and law school both), whereas Mr. Pryor and Mr. Hardiman both went to for reals universities where they lived argued debated and studied with real americans about American legal concepts, American jurisprudence and other American stuff like that

    happyfeet (28a91b)

  5. I was going to say that but then I noticed that you were already commenting on this thread and I counted on you doing it and you did not let me down.

    nk (dbc370)

  6. i rise

    happyfeet (28a91b)

  7. “If Trump is ever going to make an aggressive pick, the time is now, when he is still in a honeymoon period.”

    “Honeymoon”??? Every word Trump says calls paid protesters out in 30 cities, and has Democrat Senators on the news crying bitter tears.

    No matter who Trump appoints, he starts off wtih 48 votes against, guaranteed. So, the question is, who will McCain, Rubio, and Lindsey support? Because those three now hold an absolute veto power over any pick Trump makes, and i think he knows it. That’s just the sad reality of the situation.

    Tom Servo (4f4685)

  8. I can see the police unions opposing Hardiman, too, because he said that every person arrested should be strip searched, and there’s a lot of people the police arrest that you just don’t want to see naked. Really, you don’t.

    nk (dbc370)

  9. Pryor would be a better fit for achieving the Bannon Administration’s political objective of constantly whipping the proles during the first hundred days.He would generate the greatest amount of spittle from the progressives as well as the strongest defense from conservatives.

    Rick Ballard (1c0700)

  10. Don’t forget fideloflake , he voted for the senate version of visa revision?

    narciso (d1f714)

  11. Flake (maverick’s proxy) graham. Usual suspect and sasse seems to have gotten the pax, spouting off before evudence

    narciso (d1f714)

  12. @TomServo:when he is still in a honeymoon period.

    I thought this funny too. A lot of us are still in this mode where Trump is a normal president and has the usual media relationship.

    Not that any Republican “honeymoon”, in my lifetime, has ever been else but lukewarm and short. Obama’s went 8 years.

    Gabriel Hanna (e10de5)

  13. Flake, McCain – AZ; Rubio – FL, Graham – SC
    Someone in a thread mentioned the issue of caregivers/caretakers filling out ballots for elderly. Could this be the fruit (at the primary level at least)?

    urbanleftbehind (5eecdb)

  14. Flake billed himself as a tea party candidate, he was more like the mute henchman of Sosa, since you think scarface is indicative of anything

    narciso (d1f714)

  15. I call him fideloflake among other things because he wee a staunch opponent of radio and TV marti

    narciso (d1f714)

  16. Flake was always in doubt due to his religion and signs from his House tenure.

    Much of the 2014 Senate class – Gardner, Tillis, Lankford are more stealth. The 2010 combined senate and gubernatorial class still had its share of RINOs and this is why midwestern governors could not be the natural heir this past election despite their varied left-right spectrum.

    urbanleftbehind (5eecdb)

  17. Re goldmacher’s view on prior he doesn’t cite one named source.

    narciso (d1f714)

  18. Goldmacher slobbered over Hillary’s performance in the sept debatr

    narciso (d1f714)

  19. Diane Sykes was on the short list for a long time.
    Can you imagine the freak-out by the Left if a a week and a half following their “TRUMP HATES WOMEN!” march, he nominated a woman.

    Cruz Supporter (102c9a)

  20. There are, at most, two votes on the Court for overturning Roe/Casey. Alito is the only one I would bet heavily on. I think that Thomas would rather fight more current battles. Casey said the issue was settled law, in 1992. Twenty-five years puts several layers of concrete down.

    I am MUCH more concerned about the limits of federal power, the 2nd Amendment, and economic liberty than I am about Roe — a bad decision but a lasting one. I have long suggested a constitutional amendment that established a strictly limited abortion right (adult women, first trimester) with states having some leeway on the edges. While neither extreme would be very interested, the middle 60% are rather tired of the argument and might want to end it.

    Kevin M (25bbee)

  21. John Roberts is all about giving the government the freedom to force women to make the unwanted babies

    John Roberts will never rock any boat. He would protect the Court and go with stare decisis here.

    Kevin M (25bbee)

  22. Gorsuch, by contrast, has been a fierce critic of Chevron — which is, in my opinion, a good thing, as the executive has too much power these days. Allowing the administrative state to serve as all three branches of government without genuine scrutiny from the courts is not what the Founding Fathers had in mind, and Gorsuch seems to understand this.

    The real mistake was not Chevron, but Chadha.

    Kevin M (25bbee)

  23. You left out the “how” of Trump getting his pick, whoever it is, through the Senate. Will the Dems filibuster? If they do, will the GOP stick together to end the filibuster for SCOTUS appointment?

    Hatch, Graham, Collins, Murkowski, and especially, the guy you did find acceptable as a GOP nomination for president, John McCain.

    What are Trump’s options? If the Dems won’t filibuster Gorsuch, Trump could nominate him. But, the Dems seem to be signaling that they will obstruct, in every way they can, any nominee who they can paint as right-wing. I’m guessing that Gorsuch will fall into that category. If Trump nominates him anyway, will McCain and his fellow travelers do what is necessary and ok the end of SCOTUS filibusters? I hope so, but I am skeptical.

    Anon Y. Mous (9e4c83)

  24. Donald J. Trump
    @realDonaldTrump

    I have made my decision on who I will nominate for The United States Supreme Court. It will be announced live on Tuesday at 8:00 P.M. (W.H.)

    5:43 AM – 30 Jan 2017

    That means he wants to deliver a prime time address justifying his choice.

    Who said Trump wasn’t really (in a way) good at politics? You’d almost never believe he had never been elected sheriff.

    If it is Pryor, McCain might not vote to overturn the filibuster rule, but for Gorsuch he might. There isn’t one judge on the list who won’t be filubustered, but theer s possibility maybe some Democrats could be prevailed upon to vote for cloture.

    when he is still in a honeymoon period

    That’s gone, and it never really was there anyway. I think people thought naminga Supreme Court nominee would put an end to the honeymoon, but Trump did it faster.

    Sammy Finkelman (8a673f)

  25. when he is still in a honeymoon period

    The whole “He’s not my president” thing was about making sure there was no honeymoon. Face it the Democrat Party contains no democrats.

    Kevin M (25bbee)

  26. Kevin @25 You’re right, although they didn’t entirely succeed.

    Sammy Finkelman (8a673f)

  27. Ideologues will bark and beg but gleefully chew on whatever bone he throws them.

    DCSCA (797bc0)

  28. Mr. Trump rocks the boats like a thoroughbred stallion what was specially trained in boat-rocking knowledge

    happyfeet (28a91b)

  29. If Leonard Leo is ok with Hardiman, then its going to be Hardiman.

    As has been pointed out by many, Trump really doesn’t have a “dog in this fight.” He’s not a conservative, he’s not a strict constructionalist — he doesn’t really have any true appreciation for the impact of the pick. His sister’s opinion is going to me a lot, and if Leonard Leo is ok with Hardiman, then Trump can say “The head of the Federalist Society thinks he’s a great choice, so who’s complaining?”

    Leo, a New Yorker and long-time leader of the Federalist Society work in promoting the careers of conservative federal judges, got inside Trump’s inner circle and transition team via Rudy. My information is that the 21 judge list Trump put out last year was assembled in large party by Leo.

    This is not a constituency that is forefront in Trump’s thinking, and if Leonard Leo is happy that’s good enough for Trump.

    shipwreckedcrew (e90d7c)

  30. Roll out the cots and make them do it – not just sabotage the vote by threatening to talk it to death.

    crazy (d3b449)

  31. The whole “He’s not my president” thing was about making sure there was no honeymoon. Face it the Democrat Party contains no democrats.

    Kevin M

    In a democracy the one who got the most votes would have won. The dems ran a very poor candidate… one of the worst ever, but she was more popular than Trump. Trump really has absolutely no mandate except as a reflection of how frustrated and desperate Americans are that he became electable. There’s both a strength and a weakness to President Camacho’s path to the White House.

    But hopefully we get a few judges and Justices that are worth the damage Trump will do to the conservative movement. Hopefully it nets out better than even. But remember that Obama failed to unify the country, and as a result, his opposing party is announcing the new Justice. That’s a clear warning to partisan Republicans what’s going to happen. Trump has an opportunity to continue proving his critics wrong (first on his electability, but hopefully next on something more substantial). I’ve been pleased with several of Trump’s actions, and I want to give him credit where it’s due and expect I will be able to on this.

    But the partisanship is his worst enemy (and our nation’s worst enemy). There are a lot of democrats and republicans who want essentially the same thing, perhaps differing on priorities a bit, but completely hopeless to get anything worthwhile from either political party. A balanced budget government that minimally intrudes into our personal affairs, where we get to worship or live how we please… this is something most of us want, and no one with the ego to get into power will accommodate.

    Dustin (ba94b2)

  32. if popular vote mattered the whole campaign would have been orchestrated differently and Mr. Trump would have spent a lot more money (but probably still not as much as stinkypig)

    millions of presently disenfranchised non-voting pikachus in california and illinois and seattle and boulder would’ve voted for Mr. Trump cause of freedom and prosperity

    and it would be so good

    it would be so good

    happyfeet (28a91b)

  33. if popular vote mattered the whole campaign would have been orchestrated differently and Mr. Trump would have spent a lot more money (but probably still not as much as stinkypig)

    LOL at this reflexive thin skinned Trump fan stuff. Millions more voted for Hillary and she was terrible. No what-ifs in your imagination can change that Trump really was rejected by the people, and then won because we’re not a democracy. Of course the same people who say it’s a good thing this is how it is working would be saying this process is horrible if they thought it would work out the other way.

    Donald wrote on Twitter: “The electoral college is a disaster for a democracy.” a few years back when he was a birther. Of course he was right. The problem is not that we have urban areas overrepresented in numbers. It’s that this nation is simply too large, and a federal government this powerful cannot represent this many people because power has become far, far too separated from the citizen. Now, two sleazeballs run a media campaign.

    Flyover Republicans really think their vote should count more than a guy in New York City’s vote, but this is just because the status quo helps their political party. It’s completely ad hoc.

    But that’s not my point. My point is that if someone who is democratic does not believe Trump is legitimate, because they believe the winner of the most votes has more legitimacy than the loser, that’s a totally reasonable and logical point of view.

    Dustin (ba94b2)

  34. I love him no matter what you say

    happyfeet (28a91b)

  35. The United States is a federal republic and a constitutional representative democracy. One of the purposes of a constitutional republic to protect the rights of minorities from the tyranny of the majority.

    The “federal” part is one of three basic types of organization of power — unitary, confederal, and federal. Most nations are unitary in nature (local government with a powerful national government). There are no confederacies that I know of at this time (the U.S., under the Articles of Confederation was one; Germany and Switzerland have also had confederate systems in the past). Federal systems are common among large nations where several levels of government are needed. Australia, Canada, and Brazil are federal as well. Federations do not always work, such as in the case of the United Arab Republic.

    The “republic” implies that we have a strong head of state (the President) and elected officials representing the people.
    The “constitutional” part means that we have a constitution, which is pretty obvious, considering this site. Finally, the “representative democracy” part means that the people elect representatives to take care of legislative matters. Originally, the only part of the government that fit this description was the House of Representatives. Today, the Senate does, too, and so does the Electoral College.

    The mere fact that a nation has a constitution, is a federation, or is a republic, does not imply that minorities are fairly treated. It is the content of that constitution, and the values of that federation and/or republic that protects the rights of minorities.

    Note that a pure democracy, in the true sense of the word, does not protect the minority — majority rules.

    elissa (ceae36)

  36. There may well be changes made to its operation and process, but as long as we have actual states that comprise “The United States” there is, and will continue to be, a valid need for the function and safeguards provided by the electoral college. It will not be eliminated and replaced by a pure democracy in my/our lifetimes no matter how some might shortsightedly wish it so

    elissa (ceae36)

  37. I’m so grateful that President Mr Donald is going to be nominating the next Supreme Court justice. And as an added bonus, maybe a couple more to follow.

    Just think how nasty that nasty woman’s choices would have been.
    I thank God that she could only manage to win 20 states.

    America really dodged a bullet!

    Cruz Supporter (102c9a)

  38. “31. But hopefully we get a few judges and Justices that are worth the damage Trump will do to the conservative movement.”

    If you haven’t noticed, the conservative movement is pining for the fjords. Sad but true.

    Leftist Hillary got 62 million votes. How many of her voters would have voted for a conservative?

    fred-2 (ce04f3)

  39. #38 fred-2, some of our passionate conservative friends are not exactly Reagan’s “half a loaf of bread is better than no loaf of bread” kinds of people.
    Sad, but true.

    Cruz Supporter (102c9a)


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