Courts

The Search For A Supreme Court Nominee: Judge Thomas Hardiman Makes The Final Four

Please note the UPDATE -- Judge Hardiman could very well become Justice Hardiman.

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Here’s where we stand on the search for a Supreme Court nominee to succeed Justice Anthony M. Kennedy, according to John Roberts of Fox News (which is about as close as one can get to an official news outlet for the Trump Administration):

Judge Thomas Hardiman (3d Cir.)

Whoa, Judge Thomas Hardiman (3d Cir.)?! We almost forgot that he was in this thing. Although he was the runner-up for the SCOTUS spot that went to Justice Neil M. Gorsuch, Judge Hardiman hasn’t been generating nearly as much buzz this time around.

I continue to adhere to my longstanding prediction that the SCOTUS nominee will be either Judge Brett Kavanaugh (D.C. Cir.) or Judge Raymond Kethledge (6th Cir.), with Judge Amy Coney Barrett (7th Cir.) as the outside shot. But since Judge Hardiman has made it to the final four without generating many headlines, let’s take a look at this “stealth” candidate — who could end up emerging as President Donald Trump’s pick.

It’s impressive that Judge Hardiman has made it this far, especially considering that he doesn’t have the huge fan bases or confirmation machines of the other contenders. There’s a Team Barrett (or #TeamAmy, as they’re known on Twitter), a Team Kavanaugh, a Team Kethledge, a Team Thapar — but as far as I know, there’s no Team Hardiman. (If I’m wrong and if there is in fact a Team Hardiman — a large group of supporters and surrogates working in coordinated fashion to advance the judge’s candidacy, like the groups for the other judges — please drop me a line.)

It’s actually refreshing that Judge Hardiman hasn’t been doing much, if any, lobbying for the spot. But it’s not surprising; he’s not as well networked as the others (with one important exception: Judge Maryanne Trump Barry, Hardiman’s friend and longtime colleague on the Third Circuit, and President Trump’s big sister). Since Hardiman is not a feeder judge, his clerks aren’t as well placed as those for Kavanaugh and Kethledge, and not as well situated to advance his candidacy inside the corridors of power in Washington.

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But make no mistake: Judge Hardiman’s clerks love him just as much as the other judges’ clerks love their bosses. He’s warm and friendly, a wonderfully good and decent person, and a great boss — who inspires fierce loyalty from his clerk family. During the clerkship, over the course of frequent lunches and other activities — Judge Hardiman, an avid runner, enjoys running with his clerks (including in relay marathons) — he builds strong bonds with his clerks.

When Judge Hardiman didn’t get the SCOTUS nomination last time, his clerks were “heartbroken,” as one of them put it to me. The judge sent around a deeply moving letter to all his clerks after he didn’t get the nod, thanking them for their support — and to some, the judge’s eloquent letter only increased the heartbreak.

This time around, perhaps in an act of emotional self-protection (or self-care, as folks like to say these days), Judge Hardiman and his clerks haven’t gotten as excited about or invested in the process as they did last time. Judge Hardiman put his best foot forward in his interview with President Trump, but he didn’t mobilize his clerk-troops in the same way as the other contenders. Why? In his (again refreshing) view, he said something along these lines to his clerks, who asked him if they should put together a Team Hardiman: “If they don’t want me as I am, then it’s not meant to be.”

And yet, despite his lack of a giant confirmation machine, Judge Hardiman has made it to the final round once again. Congratulations, Your Honor.

To be sure, even if he’s in the final four, Judge Hardiman isn’t a frontrunner. Why not? It seems to be mainly about his pedigree. (Some also question his conservatism, but I don’t view that as a serious issue — see generally his most notable rulings over the years, which are solid.)

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Judge Hardiman is a graduate of two of the country’s great universities, Notre Dame for college and Georgetown for law school — but they’re not quite as elite as Yale, where Judge Kavanaugh got his college and law school degrees, and the University of Michigan, Judge Kethledge’s double alma mater.

But wait, you say — what about Judge Amy Coney Barrett? Why is Judge Barrett, a graduate of Rhodes College and Notre Dame Law, also ahead of Judge Hardiman? It’s because she’s a former Supreme Court clerk (to the late, great Justice Antonin Scalia) — and a SCOTUS clerkship washes away all iniquity. Judge Hardiman, in contrast, didn’t clerk at all, not even for a lower-court judge. (The other top contender, Judge Amul Thapar (6th Cir.), clerked on the Sixth Circuit for Judge Nathaniel R. Jones.)

This is going to sound ridiculous — and I’m aware of the ridiculousness, so cut me some slack — but Judge Hardiman makes me think of a kid from modest circumstances who made mistakes in his youth that haunt him decades later. But instead of picking up a drug habit or committing a crime, Hardiman committed the “crimes” of… not going to the highest-ranked school he got into, and not clerking when he had the chance. And sadly, in the unhealthily status-obsessed world of legal elites, these are “crimes” of a sort.

Judge Hardiman grew up in a working-class, Irish Catholic family outside Boston. His family had a cab business, and as we now all know, he drove a cab during high school and college to help pay his way through school.

Hardiman was an excellent student at Waltham High School, and when he applied to colleges, he got into Harvard. For a poor blue-collar kid from the Boston outskirts, Harvard was a dream come true in many ways. But this was also before the days of great financial aid, and Hardiman also got into Notre Dame — with a full scholarship. For an Irish-Catholic kid from Boston, a full ride to Notre Dame was also a dream come true — and that’s the path he took, not wanting to burden himself and his family with debt. (Judge Hardiman actually has his framed Harvard acceptance letter hanging in chambers — which some might view as douchey or gauche, but which I see as poignant, in light of the judge’s background.)

Hardiman did well in college and went straight through to law school at Georgetown, which along with Notre Dame is one of the nation’s preeminent Catholic universities. He excelled yet again, making it onto the Georgetown Law Journal and racking up strong grades.

Georgetown was back then, as it still is today, a top — aka “T14” — law school. (The U.S. News rankings launched in 1987.) As a top student from a top law school, Hardiman could have clerked — but he didn’t.

Why not? Because he didn’t understand the importance of clerking as a credential — not surprising for a working-class kid from Boston — and because he needed to make money. He went directly into Biglaw, starting work in the D.C. office of Skadden.

From there, his professional and personal lives blossomed. He met his future wife, Lori Hardiman (née Zappala), and she brought him back to Pittsburgh, where her family lives. He enjoyed a thriving career in private practice, eventually making partner at Reed Smith, one of the city’s preeminent law firms. In 2003, President George W. Bush appointed him to the trial court (the U.S. District Court for the Western District of Pennsylvania), and in 2007, he was elevated to the Third Circuit appeals court, by a resounding vote of 95-0.

And now here he is, a finalist yet again for a seat on the U.S. Supreme Court. As a poor blue-collar kid from outside Boston — who might have wound up driving a cab, if he hadn’t been the first person in his family to graduate from college — Thomas Hardiman can’t believe how far he has come.

Even if his youthful “mistakes” end up costing him the SCOTUS nomination, Tom Hardiman can live with that. He will return to Pittsburgh — to his wife, their three kids, and his loyal law clerks — a happy man.

UPDATE (7/8/2018, 12:06 p.m.): Happy Birthday, Judge Hardiman! He turns 53 today. And a Supreme Court nomination might very well be his birthday present:

See also reports this Sunday afternoon from the New York Times and the Washington Post, noting that Judge Hardiman’s candidacy appears to be in the ascendancy.

UPDATE (7/9/2018, 3:10 p.m.): One neighbor and childhood friend of Tom Hardiman contacted us to say that reports of his modest background have been greatly exaggerated: “He was bright and ambitious, even as a child, and possessed many terrific qualities. But he was not ‘poor,’ not by a long shot.” According to this source, the Hardimans owned a liquor store as well as a cab company, and they lived in a new home in a nice part of town.

I think it’s fair to say, though, that even if Hardiman did not grow up “poor,” he did come from a “working-class” or “blue-collar” background — and he did not come from a family that fully appreciated the importance of status markers like a Harvard degree and a federal clerkship.

UPDATE (7/9/2018, 5:20 p.m.): The Hardiman family was well-off enough to take out an ad in the high school yearbook featuring a young Tom Hardiman in a tuxedo with an unidentified young woman (presumably going to prom), according to the Boston Globe (via How Appealing).

Earlier:

DBL square headshotDavid Lat is editor at large and founding editor of Above the Law, as well as 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.

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