Supreme Court Update: And Then There Were Three Four
They're all distinguished conservative jurists, although not the most diverse group.
Left to right: Judge Neil Gorsuch (10th Cir.), Judge Thomas Hardiman (3d Cir.), and Judge William Pryor (11th Cir.).
Given how millions of women (and men) turned out around the country to protest President Donald Trump, I thought it would have been a nice touch for President Trump to make history by appointing a fourth woman to the U.S. Supreme Court, making for a 5-4 gender split for the first time in history. Alas, it looks like that’s not happening.[1]
Over the weekend, Jan Crawford appeared on CBS This Morning and identified three SCOTUS frontrunners: Judge Neil Gorsuch of the Tenth Circuit, Judge Thomas Hardiman of the Third Circuit, and Judge William Pryor of the Eleventh Circuit. They are all distinguished, highly regarded, currently sitting federal appellate judges. But as three straight white males, they aren’t a terribly diverse bunch.
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This afternoon, Politico also reported that it’s down to the same trio:
President Donald Trump has narrowed his first Supreme Court nomination to three finalists, with 10th Circuit judge Neil Gorsuch and 3rd Circuit judge Thomas Hardiman emerging as front-runners while 11th Circuit Judge Bill Pryor remains in the running but fading, according to people familiar with the search process.
Trump interviewed at least those three finalists in New York during the transition, according to a person familiar with the search. Trump himself said Tuesday he would make a selection for the court’s empty seat next week and summoned top Senate leaders to the White House to discuss his impending choice to replace Justice Antonin Scalia, who died nearly a year ago.
We broke the news of Judge Pryor meeting with Trump. It now seems that Pryor wasn’t the only one.
Judge Raymond M. Kethledge (6th Cir.) (photo by SPDuffy527 via Wikimedia)
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UPDATE (9:26 p.m.): In articles posted after this story went up, Jess Bravin of the Wall Street Journal and Robert Barnes of the Washington Post report that Judge Raymond Kethledge of the Sixth Circuit is also in the running. I have amended the headline of this story and appended additional discussion of Judge Kethledge at the end.
Why is Judge Pryor “fading”? One might have expected it to be the anticipated opposition of liberals. Judge Pryor has called Roe v. Wade the “worst abomination in the history of constitutional law,” while Senate Minority Leader Chuck Schumer has pledged to block any nominee who’s outside the “mainstream” (by which he means opposed to Roe — even though that decision has come under lots of criticism over the years, from Justice Ruth Bader Ginsburg among others).
But no, it’s not the left that’s causing trouble for Judge Pryor. It’s the conservatives, as Eliana Johnson and Shane Goldmacher of Politico explain:
Pryor is currently the subject of raging debate on an off-the-record group email list 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 transgender people 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, chief counsel and policy director of the Judicial Crisis Network, a conservative legal organization.
What a world we live in. I like this wry understatement from John Malcolm of the Heritage Foundation: “Bill Pryor has been getting attacked from the right. Which is strange to me.”
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(I wouldn’t be surprised if Judge Pryor, a SCOTUS feeder judge who has long been viewed as a possible nominee to the Court, considered the impact to his SCOTUS chances of voting with the majority in Glenn v. Brumby. He probably thought it would be positive, a case he could cite for the proposition that he’ll vote the “liberal” way if the law calls for it. But he might have miscalculated.)
Politico confirms what I’ve been hearing about Jeff Sessions, the incoming attorney general, “pushing hard” for Pryor. But Sessions’s political capital is not unlimited, and he might be spending some of it on the battle over solicitor general (still unresolved, at least as far as I know).
One could write a great deal about all the finalists, and excellent profiles of them abound. Here’s my very quick handicapping of the race.
It sounds like Judge Pryor is out. He would generate a fight with the left, possibly a threatened or actual filibuster. As Ian Millhiser writes over at Think Progress, “If Trump chooses Judge William Pryor, his nomination would be viewed as a declaration of war by many Democrats on and off Capitol Hill.” And if conservatives aren’t going to be uniformly thrilled over and galvanized by the Pryor nomination, thanks to Glenn v. Brumby, is putting him up worth the trouble?
Judge Gorsuch and Judge Hardiman are harder to oppose. They are generally conservative, and regulars at events of the Federalist Society, but with less baggage than Judge Pryor. Compare Millhiser’s comments about Pryor with his assessments of Gorsuch and Hardiman. If the left wants to fight them, there’s just not much ammunition.
Yes, Judge Gorsuch has some sympathy for claims of religious freedom, as reflected in his votes in the Hobby Lobby and Little Sisters of the Poor cases. Sure, Judge Hardiman takes an originalist approach to the Second Amendment. But that won’t get liberal interest groups galvanized like Judge Pryor’s comments on Roe.
Another plus for Judge Gorsuch and Judge Hardiman over Judge Pryor: age. Judge Pryor is 54, nearing the 55-year-old mark that some consider to be SCOTUS cutoff territory (although others say it’s 60). Judge Hardiman is just 51, and Judge Gorsuch is even younger, at 49 (turning 50 this August).
Here’s a final factor in favor of Judge Gorsuch and Judge Hardiman over Judge Pryor, the former frontrunner: they’re both tall (and Pryor is, well, not). Appearances shouldn’t be relevant to picking a Supreme Court nominee, but as I’ve previously observed, “Donald Trump is not your ordinary president. And as we know from his catty comments about people’s looks while on the campaign trail, as well as his willingness to consider Mitt Romney for secretary of state because he ‘looked the part,’ the Donald places a priority on appearance.” (Also, Judge Neil “Silver Fox” Gorsuch is very handsome; vote for him in Cristian Farias’s online poll.)
Who has the edge as between Judge Gorsuch and Judge Hardiman? That’s tough to tell based just on their records, and it will probably come down to how much they connected personally with the Donald.[2]
Speaking of connections, they both have them, in abundance. Leonard Leo — executive vice president of the Federalist Society, which President Trump has thanked publicly and repeatedly for its input on his judicial picks — is a huge fan of both jurists. Judge Gorsuch, a top SCOTUS feeder judge, has former clerks littered throughout the upper echelons of the Republican legal establishment. Judge Hardiman is said to be close with Judge Maryanne Trump Barry, his longtime colleague on the Third Circuit and Donald Trump’s big sister.
UPDATE (1/27/2017, 1:05 p.m.): For more on Judge Barry’s possible role in promoting Hardiman, see this Politico piece, Trump’s sister weighs in on Supreme Court pick.
In my view, the choice between Judge Gorsuch and Judge Hardiman comes down to how Establishment and elitist the president wants to be. Both judges have stellar credentials, but Judge Gorsuch’s shine just a little more brightly. That could be a plus or a minus, depending on whether President Trump acts like the elite he actually is — the Ivy League-educated, billionaire son of a centimillionaire — or whether he wants to play the populist.
Judge Gorsuch comes from and currently lives in Colorado, well outside the “Acela corridor,” but he has spent much of his life and career within its confines. He went to Columbia for college, studied at Oxford as a Marshall Scholar, and graduated from Harvard Law School. After clerking for not one but two Supreme Court justices, Justice Anthony M. Kennedy and Justice Byron White, he spent a decade in D.C. at Kellogg Huber, one of the most elite (and high-paying) law firms around. He then worked at the Justice Department from 2005 to 2006, which is when he was confirmed to the Tenth Circuit (by voice vote; compare that to Judge Pryor’s 54-45 margin).
Colorado might seem like a nice, rugged, “non-elite” state, but note that Neil Gorsuch comes from one of its most distinguished and high-powered families. His mother, Anne Gorsuch, served in the Colorado House of Representatives before Ronald Reagan nominated her to lead the Environmental Protection Agency (the first woman to hold the post).
Judge Hardiman’s résumé lacks the perfection of Judge Gorsuch’s, but Judge Hardiman is more of the “real deal” as a self-made success, with a better claim to being a non-swamp-creature non-elite. While Judge Gorsuch graduated from two Ivy League schools (like pretty much every other current member of the Court), Judge Hardiman went to Notre Dame for college and Georgetown for law school. Yes, Notre Dame and Georgetown are both highly ranked institutions; GULC is a so-called “T14” law school. But note that when he entered Notre Dame, Thomas Hardiman was the first person in his family to go to college, and when he went to Georgetown Law, he drove a cab to make ends meet. Although not at Clarence Thomas or Sonia Sotomayor levels, this is the kind of story that plays very well during the confirmation process.
After law school, Hardiman worked for Skadden Arps in D.C. before moving to Pittsburgh, where he worked for Titus & McConomy and then Reed Smith. He was appointed by President Bush to the U.S. District Court for the Western District of Pennsylvania in 2003, confirmed by voice vote — so aside from adding educational diversity to the Court as a non-Ivy Leaguer, he would also bring some experience as a trial judge. (Justice Sotomayor is the only other member of the Court with experience as a trial judge.) Hardiman served as a district judge for more than three years before his elevation to the Third Circuit in 2007, on a 95-0 confirmation vote.
Judge Gorsuch and Judge Hardiman would both excel at their hearings. There wouldn’t be much to go after them for, allowing them to be their smart, charming, and gracious selves. I have spoken with numerous sources who know both of them — former clerks, clerks to other judges on their courts, lawyers who have appeared before them — and I’ve heard nothing but good things. They are both described as sharp, well-prepared, and fair-minded, and Judge Gorsuch in particular is known for being a fantastic writer.
The presidency of Donald J. Trump, a very non-traditional politician, carries significant risk. DJT doesn’t much stock in past government experience, and some of his Cabinet picks seem to lack relevant knowledge and experience. So it’s nice to know that when it comes to the Supreme Court, Trump is selecting smart and seasoned jurists. They might be a tad too conservative for some, but there’s no denying that Trump’s SCOTUS picks could be, from a progressive’s point of view, so much worse.
[1] It seems that Judge Diane Sykes of the Seventh Circuit, who I’m a big fan of, is no longer in the running. It’s not clear whether her age (59) disqualified her, whether the Trump Administration is holding her for a possible RBG vacancy, or whether some other factor is at play.
[2] Don’t underestimate the importance of a SCOTUS hopeful’s in-person interview with POTUS. Then-Judge Stephen Breyer interviewed with President Bill Clinton for the seat that ultimately went to Justice Ginsburg, but did poorly because he was still in bad shape after a bicycle accident. Judge J. Harvie Wilkinson might be on the Court today if he hadn’t disagreed with President George W. Bush about the best form of exercise. Beyond a certain point, once potential nominees have checked certain boxes on paper, selecting someone for SCOTUS is a president’s very personal prerogative.
UPDATE (9:36 p.m.): Many of the comments about Judge Gorsuch and Judge Hardiman apply to Judge Kethledge as well. Having just turned 50, he’s a little younger than Judge Pryor, and he would be tough to oppose, with very little in his background for Democrats to seize upon. He was confirmed to the Sixth Circuit in 2008 by voice vote. He is highly respected by the bar and has a tremendous, well-rounded résumé: University of Michigan (for college and law school), a Supreme Court clerkship (with Justice Kennedy), private practice at the Honigman law firm (one of Michigan’s top firms), and in-house experience (at Ford Motor). He falls in between Judge Gorsuch and Judge Hardiman on the Establishment/elite spectrum: he didn’t go to an Ivy League law school, but the University of Michigan is also T14, and he clerked for SCOTUS (and is now, like Judge Gorsuch and Judge Pryor, a feeder judge).
UPDATE (1/25/2017, 11:46 a.m.): Michael Shear and Adam Liptak of the New York Times identify Judge Gorsuch, Judge Hardiman, and Judge Pryor as the leading contenders, adding that “Judge Gorsuch and Judge Pryor appear to be the most likely choices… [with] conservative records that are certain to become the focus of intense scrutiny and debate.”
Trump’s down to three in Supreme Court search [Politico]
A closer look at Trump’s potential Supreme Court nominees [Politico]
A look at the coming Supreme Court battles [CBS News]
Donald Trump Narrows List of Supreme Court Nominees [Wall Street Journal]
Trump close to naming nominee for Supreme Court [Washington Post]
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David Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.
