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.