down to three in Supreme Court search

Reply Tue 24 Jan, 2017 05:01 pm
Trump plans to nominate a replacement for the late Justice Antonin Scalia next week.
By ELIANA JOHNSON and SHANE GOLDMACHER 01/24/17 10:43 AM EST Updated 01/24/17 02:14 PM EST

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.

“The president wants to move as quickly as he can,” said Leonard Leo, one of Trump’s advisers on the court pick and a top official at the Federalist Society.

Leo declined to discuss Trump’s short list, but he praised both Gorsuch and Hardiman effusively.
Reply Tue 24 Jan, 2017 05:12 pm
Potential nominee profile: Neil Gorsuch

Neil Gorsuch was appointed to the United States Court of Appeals for the 10th Circuit by President George W. Bush on May 10, 2006, and confirmed shortly thereafter. Both his pre-judicial resumé and his body of work as a judge make him a natural fit for an appointment to the Supreme Court by a Republican president. He is relatively young (turning 50 this year), and his background is filled with sterling legal and academic credentials. He was a Marshall Scholar at the University of Oxford, graduated from Harvard Law School, clerked for prominent conservative judges (Judge David Sentelle of the U.S. Court of Appeals for the District of Columbia Circuit, as well as Justices Byron White and Anthony Kennedy of the Supreme Court), and was a high-
ranking official in the Bush Justice Department before his judicial appointment. He is celebrated as a keen legal thinker and a particularly incisive legal writer, with a flair that matches
— or at least evokes — that of the justice whose seat he would be nominated to fill. In fact, one study has identified him as the most natural successor to Justice Antonin Scalia on the Trump shortlist, both in terms of his judicial style and his substantive approach.

With perhaps one notable area of disagreement, Judge Gorsuch’s prominent decisions bear the comparison out. For one thing, the great compliment that Gorsuch’s legal writing is in a class with Scalia’s is deserved: Gorsuch’s opinions are exceptionally clear and routinely entertaining; he is an unusual pleasure to read, and it is always plain exactly what he thinks and why. Like Scalia, Gorsuch also seems to have a set of judicial/ideological commitments apart from his personal policy preferences that drive his decision-making. He is an ardent textualist (like Scalia); he believes criminal laws should be clear and interpreted in favor of defendants even if that hurts government prosecutions (like Scalia); he is skeptical of efforts to purge religious expression from public spaces (like Scalia); he is highly dubious of legislative history (like Scalia); and he is less than enamored of the dormant commerce clause (like Scalia). In fact, some of the parallels can be downright eerie. For example, the reasoning in Gorsuch’s 2008 concurrence in United States v. Hinckley, in which he argues that one possible reading of the Sex Offender Registration and Notification Act would probably violate the rarely invoked non-delegation principle, is exactly the same as that of Scalia’s 2012 dissent in Reynolds v. United States. The notable exception is one prominent concurrence last August, in Gutierrez-Brizuela v. Lynch, in which Gorsuch criticized a doctrine of administrative law (called Chevron deference) that Scalia had long defended. Even here, however, there may be more in common than meets the eye.


Some of the most high-profile cases in which Gorsuch has cast a vote have involved the religion clauses of the Constitution (those prohibiting the establishment of religion and creating a right to free exercise), as well as congressional statutes expanding protection for religious adherents (known as RFRA and RLUIPA). Followers of the Supreme Court will recognize two recent cases in which Gorsuch participated on the 10th Circuit, Hobby Lobby Stores v. Sebelius and Little Sisters of the Poor Home for the Aged v. Burwell. In Hobby Lobby, Gorsuch wrote a concurrence in the en banc 10th Circuit that sided with the company and its owners. He stressed the need to accept these parties’ own conceptions regarding the requirements of their faith, and held (among other things) that they were likely to prevail on claims that the contraception mandate in the Affordable Care Act substantially burdened their religious exercise in violation of RFRA. This position was largely vindicated in the subsequent decision by the Supreme Court. Thereafter, in Little Sisters of the Poor, Gorsuch joined a group of 10th Circuit judges who dissented from denial of rehearing en banc when a panel of the court of appeals ruled against the Little Sisters on their RFRA claims about the same ACA mandate. There, again, the point was that the 10th Circuit had shown insufficient deference to the Little Sisters’ own articulation of the tenets of their religious beliefs. That position, too, was at least partially vindicated by the Supreme Court when it decided that the Little Sisters’ religious beliefs probably could be accommodated while still affording full and equal contraceptive coverage to their employees, and directed the parties and courts to consider such a solution on remand. Simply put, in cases that closely divided his court and the Supreme Court, Gorsuch has shown himself to be an ardent defender of religious liberties and pluralistic accommodations for religious adherents.

Gorsuch has also written or joined opinions – again, largely vindicated by the Supreme Court – that have criticized doctrines that limit religious expression in public spaces. In Summum v. Pleasant Grove City, in 2007, Gorsuch joined a dissent from denial of rehearing en banc in a case in which the 10th Circuit had limited the ability of the government to display a donated Ten Commandments monument in a public park without accepting all other offers of donated monuments. The subsequent Supreme Court decision reversing the 10th Circuit largely adopted the reasoning of that dissent. Gorsuch also has a pair of dissenting opinions in which he criticizes the “reasonable observer” test for establishment clause cases as far too likely to find impermissible endorsements of religion by the government when none was intended, and thus to prevent religious adherents from reasonably participating in public life. These cases are American Atheists Inc. v. Davenport, in 2010, and Green v. Haskell County Boad. of Commissioners, in 2009. The common thread in these cases is one that matters very deeply to conservatives: a sense that the government can permit public displays of religion – and can accommodate deeply held religious views – without either violating the religion clauses of the Constitution or destroying the effectiveness of government programs that occasionally run into religious objections. In his 2009 concurrence in Pleasant Grove City, Utah v. Summum, Scalia articulated very similar views. Gorsuch’s opinions on these issues are quite thoughtful, and demonstrate that he would be a natural successor to Scalia in adopting a pro-religion conception of the establishment clause.

Criminal Law

Another area in which Gorsuch has written persuasively in a manner that closely echoes Scalia relates to how to interpret criminal laws correctly, so as to avoid criminalizing potentially innocent conduct. One of Gorsuch’s most notable opinions in this area also happens to overlap with the hot-button issue of gun ownership — although the case is not about the Second Amendment, and doesn’t involve anything like the typical gun-rights groups.

A federal criminal law prohibits the knowing possession of a gun by a felon. This law has given rise to a debate about how best to read its limitation to “knowing” violations: Does it apply whenever a felon knowingly possesses a gun, or must violators also know that they have been convicted of a felony? This matters, because lots of minor crimes might technically be felonies, and lots of dispositions that seem inconsequential (because they involve no jail time) might technically be felony convictions. And the penalties for violating this law can be very high. In United States v. Games-Perez, in 2012, Gorsuch urged the 10th Circuit to review its rule holding that it is enough to support a conviction that the defendant knew he possessed the gun, whether or not he knew he was a felon. The opinion is an example of Gorsuch’s strong commitment to textualism, and a severe critique of using legislative history — particularly to make criminal what might otherwise be innocent. Accordingly, it is easy to hear clear echoes of Scalia’s views regarding the proper reading of statutes — especially criminal statutes — as well as the importance of focusing on ordinary usage and linguistic rules.

A few examples make the resemblance even clearer. Take this sentence from Games-Perez: “For current purposes, just stating Capps‘s holding makes the problem clear enough: its interpretation—reading Congress’s mens rea requirement as leapfrogging over the first statutorily specified element and touching down only at the second listed element—defies grammatical gravity and linguistic logic.” Or this passage, which contains both an endorsement of Second Amendment rights and a classic Scalia principle about attaching mens rea requirements to the element that criminalizes innocent conduct:

Besides, even if the government could somehow manage to squeeze an ambiguity out of the plain statutory text before us, it faces another intractable problem. The Supreme Court has long recognized a “presumption” grounded in our common law tradition that a mens rea requirement attaches to “each of the statutory elements that criminalize otherwise innocent conduct.” … Together §§ 922(g) and 924(a)(2) operate to criminalize the possession of any kind of gun. But gun possession is often lawful and sometimes even protected as a matter of constitutional right. The only statutory element separating innocent (even constitutionally protected) gun possession from criminal conduct in §§ 922(g) and 924(a) is a prior felony conviction. So the presumption that the government must prove mens rea here applies with full force.

Either of these passages would be perfectly at home in a canonical Scalia opinion about how to read the criminal law. And, it is worth noting, this means that Gorsuch, just like Scalia, is sometimes willing to read criminal laws more narrowly in a way that disfavors the prosecution – especially when the Second Amendment or another constitutional protection is involved.

Death Penalty

Gorsuch, like Scalia, has not been a friendly vote for death penalty petitioners pursuing relief from their sentences through federal habeas. But it is important to recognize that, as in the case of Scalia, this makes plenty of sense in light of Gorsuch’s commitment to reading statutes according to their plain text. During the 1990s, Congress passed a statute called the Antiterrorism and Effective Death Penalty Act that – true to its name – was intended to limit federal habeas in order to make the death penalty easier to carry out. Strict readers of AEDPA are unlikely to find many cases in which a petitioner qualifies for relief. This is particularly true in the courts of appeals, where many of the death penalty habeas cases are uncontroversial —or at least not nearly as close as the cases that make their way to the Supreme Court. Whatever the source of the position, however, it is clear that Gorsuch’s position in death penalty cases is likely to be quite close to Scalia’s, and very unlikely to make the court any more solicitous of the claims of capital defendants.

Dormant Commerce Clause

Another area of the law in which Gorsuch has shown both his writing talent and his similarity to Scalia is in the application (and critique) of doctrines surrounding the so-called “dormant commerce clause.” These doctrines treat the commerce clause not only as a grant of power to Congress to make laws regulating interstate commerce, but as a kind of presumptive limitation on the power of states to make laws that either unduly burden or unfairly discriminate against interstate commerce, without regard to whether Congress has ever passed a law in the relevant area. Because — as its name suggests — the dormant commerce clause cannot actually be found in the text of the Constitution, Scalia eventually came around to the view that it should not be a thing, and refused to endorse any future expansions of the doctrine. For example, in 2015, in a dissenting opinion in Comptroller v. Wynne, Scalia stated: “The fundamental problem with our negative Commerce Clause cases is that the Constitution does not contain a negative Commerce Clause.” Although a court of appeals judge lacks the same freedom to disparage and/or depart from existing Supreme Court precedent, Gorsuch’s opinions also reveal a measure of distrust towards unwritten constitutional provisions like the dormant commerce clause.

For example, a 2015 10th Circuit decision written by Gorsuch, Energy and Environment Legal Institute v. Epel, declined to apply the dormant commerce clause to strike down a clean-energy program created by Colorado on the grounds that it might negatively affect traditional energy producers outside the state. The opinion explains that this result is consistent with the limited reach of the dormant commerce clause’s “judicial free trade policy” even under existing precedent. But while acknowledging that lower courts must take the Supreme Court’s doctrine as they find it, Gorsuch’s opinion shows respect for the doctrine’s “[d]etractors,” like Scalia, who “find dormant commerce doctrine absent from the Constitution’s text and incompatible with its structure.” Though Gorsuch’s personal constitution seems to require him to write clearly about the many unclear aspects of the doctrine, his opinion plainly takes some joy in the act of demonstrating that not only does the dormant commerce clause not apply — the doctrine also doesn’t make much sense. That same instinct is present in a prominent concurrence last year in Direct Marketing Association v. Brohl, in which Gorsuch singled out one aspect of dormant commerce clause doctrine—the Quill rule that exempts out-of-state mail order sales from state sales tax—as an “analytical oddity” that “seems deliberately designed” to be overruled eventually. This opinion aligned him with Justice Anthony Kennedy (who has called for overruling Quill), and again with Scalia, who identified Quill as part of the “bestiary of ad hoc tests and ad hoc exceptions that we apply nowadays” under the dormant commerce clause.

The dormant commerce clause isn’t a particularly hot-button issue, nor does it have obvious liberal/conservative fault lines. But it’s noteworthy that criticism of the dormant commerce clause is of a piece with criticism of the “right to privacy” that undergirds the Supreme Court ‘s abortion jurisprudence, as well as other judge-made doctrines that do not have a strong connection to the constitutional text. Again, Gorsuch’s opinions seem to follow the lead of textualists and federalists like Scalia in expressing great skepticism towards such doctrines, which allow judges to strike down duly enacted local laws on the basis of vague principles that cannot be found in the concrete text of the national charter.

Administrative Law

Finally, there is administrative law—the one area that seems to demonstrate some real distance between Scalia and Gorsuch. Last August, Gorsuch made real waves in the normally sleepy world of administrative law by advocating the end of a doctrine that has been tied closely to the functioning of the administrative state and the executive branch since the mid-1980s — a doctrine called Chevron deference. The basic idea behind Chevron is that, when Congress enacts a broadly worded statute whose precise contours are ambiguous, the courts should permit the federal agencies that are charged with administering the statute to enforce it in any manner that is not clearly forbidden. Scalia was a judge on the D.C. Circuit (which does more agency review than any other court), and he was a strong advocate for Chevron’s basic take on agency review and the flexibility that it preserved in the administrative state: He often warned that the consequences of efforts to limit or tinker with its model could be severe. Gorsuch’s recent opinions in Gutierrez-Brizuela — he wrote both the majority opinion and a concurrence to his own opinion to express his personal views on the doctrine — expressly urge: “We managed to live with the administrative state before Chevron. We could do it again.” Ironically, Gorsuch’s chief complaint about Chevron doctrine was something that would have been close to Scalia’s heart — namely, that it empowers agencies to take the power of statutory interpretation away from courts, and subjects judicial decision-making to administrative review, rather than the other way around.

Gorsuch’s opinion — in which he stakes out ground that few have sought to defend — is a very compelling read, and it is unfair to try to summarize it in a few sentences. But it seems quite clear that: (1) Gorsuch’s views on administrative law are meaningfully different from Scalia’s in a way that could be described as even more conservative; and yet (2) the difference is not as profound as one might think. Unlike Scalia, Gorsuch really does want to apply the basic Gorsuch/Scalia take on ordinary statutes to administrative statutes as well. He believes even these broadly worded enforcement statutes have objective meanings that can be understood from their texts; that it is the job of the courts to say what those laws mean and to tell agencies when they do not have the best reading; and that if the agency disagrees, the only proper recourse is for Congress to change the law or the Supreme Court to correct the error. Scalia, on the other hand, wanted to limit courts to the role of reviewing agency implementations of these kinds of statutes for clear error in order to prevent “ossification,” recognizing that the understanding of these kinds of laws might need to change from time to time to accommodate changing priorities among presidents and changing conditions on the ground.

The reason that difference is less pronounced than you might think is that Scalia’s take on Chevron was always a little different from others’, in part to address the very concerns that Gorsuch so clearly articulates. First, Scalia was much more willing than others to say that a particular agency position was beyond the statutory bounds, even when the words at issue in the statute were ambiguous (at least in isolation). For example, in MCI Telecommunications Group v. AT&T, in 1994, Scalia held that the term “modify” unambiguously excludes major changes. In fact, in a Duke Law Journal piece in 1989 Scalia once said strict textualists like him (and, say, Judge Gorsuch) would be less likely to find statutes ambiguous for purposes of Chevron because of their attention to the details of statutory text and their unwillingness to consider broad purposes and legislative history. Such an approach makes a statute’s delegation to agencies much narrower, notwithstanding Chevron. And second, Scalia wanted Chevron to apply all the time precisely to avoid a situation in which a court would give the statute its best reading and the agency could later revise that understanding with the benefit of newfound deference — one of Gorsuch’s chief complaints. In Gutierrez-Brizuela, Gorsuch criticized the Supreme Court’s 2005 decision in National Cable & Telecommunications Ass’n v. Brand X, which permitted an agency to bypass a Supreme Court decision through Chevron deference, echoing Scalia’s own dissent in Brand X, in which Scalia criticized the court for having adopted a version of Chevron that led to the spectacle of agencies bypassing Supreme Court readings of statutes.

In short, Gorsuch definitely has a different take from Scalia on the administrative state — one that grants it less power, and so accords even more closely with the conservative conception of small government. Indeed, this is an area in which Gorsuch is plainly a thought leader, expressing judicial sentiments many conservatives with similar concerns have rarely voiced, and which even Scalia might have bristled at. But given their parallel commitments to textualism and their parallel understandings of the relative roles of agencies and courts, even this seems like a bridgeable divide between Gorsuch and the justice he might replace. Gorsuch is still a very natural choice for any Republican president to nominate as a replacement for Scalia — someone who would espouse similar principles, stand firm on similar doctrinal commitments, reach similar outcomes, and even fill a similar role as one of the court’s most articulate defenders of conservative judicial theory.

Andrew Hamm contributed extensively to this post, identifying, reviewing and analyzing the cases summarized above.
0 Replies
Reply Tue 24 Jan, 2017 05:20 pm
Thanks for the condensed info. I will need to came back and re-read through it all.
0 Replies
Reply Tue 24 Jan, 2017 05:24 pm
I will digest this tomorrow.
0 Replies
Reply Tue 24 Jan, 2017 05:55 pm
It's not possible to avoid partisanship, but I thought this article was very well written and that persons of both political persuasions could understand the author's words in their own way.
0 Replies
Reply Thu 26 Jan, 2017 11:10 am
I just read Trump's sister the judge is pushing the president to select Hardiman.

Amy Howe Reporter and Independent Contractor
Posted Mon, January 23rd, 2017 4:19 pm
Email Amy
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Potential nominee profile: Thomas Hardiman

Over the weekend, reports indicated that President Donald Trump’s shortlist for a nominee to fill the Supreme Court vacancy created by the death of Justice Antonin Scalia nearly a year ago has apparently gotten even shorter, with Jan Crawford of CBS News reporting that the list had been narrowed to Judge William Pryor of the U.S. Court of Appeals for the 11th Circuit, Judge Neil Gorsuch of the U.S. Court of Appeals for the 10th Circuit and Judge Thomas Hardiman of the U.S. Court of Appeals for the 3rd Circuit. In some ways, the 51-year-old Hardiman has more in common with Justice Sonia Sotomayor – whom he would sit next to if nominated and confirmed to the court – than with Justice Antonin Scalia, whom he would replace: The Massachusetts-born Hardiman became the first person in his family to go to college when he went to the University of Notre Dame, and he financed his law degree at the Georgetown University Law Center by driving a taxi. (If nominated and confirmed, Hardiman would also bring educational diversity to a court on which all of the other justices attended Ivy League law schools.)

After his law school graduation, Hardiman worked for two years in the Washington office of Skadden Arps before moving to Pittsburgh, where he practiced law until 2003. At the age of 37, Hardiman became a federal district judge; he was appointed to the 3rd Circuit in 2007, at the age of 41 – yet another similarity with Sotomayor, who also became a district judge at the age of 37 and took her seat on the U.S. Court of Appeals for the 2nd Circuit at the age of 44. But the comparisons with Sotomayor largely end there. Hardiman is a solid, although hardly knee-jerk, conservative who was active in Republican politics before joining the federal bench, and his jurisprudence as a Supreme Court justice likely would be closer to another justice who hails from the 3rd Circuit: Justice Samuel Alito.

During his nearly ten years as a federal appeals court judge, Hardiman has weighed in on a variety of hot-button topics important to Republicans, and his votes in these cases have consistently been conservative. For example, the gun rights cases in which Hardiman has participated reflect an originalist approach to the Second Amendment right to bear arms. Although he rejected a Second Amendment challenge to the general constitutionality of the federal law barring felons from possessing firearms, last year he concurred in a pair of challenges to the law by two men who had been convicted of corruption of a minor and carrying a handgun without a license, respectively. Hardiman agreed with the would-be gun owners that, at least as applied to them, the federal law violates the Constitution. He explained that “the threshold question in a Second Amendment challenge is one of scope: whether the Second Amendment protects the person, the weapon, or the activity in the first place. This,” he continued, “requires an inquiry into ‘text and history.’” Based on that inquiry, he concluded that “the most cogent principle that can be drawn from traditional limitations on the right to keep and bear arms is that dangerous persons likely to use firearms for illicit purposes were not understood to be protected by the Second Amendment” – a category into which the individuals in this case, in his view, did not fall. Relying on this principle, Hardiman also joined an unpublished and unsigned opinion rejecting a Second Amendment challenge to the federal and state bars on gun ownership by an inmate released from prison after serving time for armed robbery.

Hardiman’s opinion in Drake v. Filko is a strong statement of his commitment to a more expansive view of the Second Amendment. The case was a challenge to a New Jersey law regulating the issuance of permits to carry handguns in public. Among other things, the gun owner seeking a permit is required to show that he has a “justifiable need” to carry the gun. The panel ruled in favor of the state, but Hardiman dissented from that ruling. He emphasized that the Supreme Court’s decisions in District of Columbia v. Heller and McDonald v. City of Chicago both “indicate that the Second Amendment extends beyond the home,” and that – at least in his view – the law violates the Second Amendment. After considering the case at three different conferences, the Supreme Court declined to review the case on the merits, as it did with several other cases presenting the same question.

On the death penalty, Hardiman has generally – but not always – voted in favor of the state and against the inmate. Many of the death penalty cases in which he has participated involve applications of the Antiterrorism and Effective Death Penalty Act, a 1996 federal law that imposes both procedural and substantive limitations on an inmate’s ability to obtain habeas corpus relief from his conviction. In particular, Hardiman has emphasized that AEDPA imposes a high bar that inmates will rarely be able to overcome. Thus, in one case he dissented from the en banc court’s decision on a death-row inmate’s claims that the prosecution did not comply with its duty to disclose exculpatory evidence. Even if there are “gaps or errors” in a state court’s reasoning, he stressed, federal courts should still uphold it on habeas review unless the decision itself is unreasonable.

In another death penalty case, Hardiman first joined a decision in favor of the inmate, but that decision was vacated by the Supreme Court. On remand, the panel ruled for the inmate again, in a decision authored (like the original opinion) by Judge Maryanne Trump Barry – the president’s sister. Hardiman dissented from the ruling on remand, explaining that the inmate could not “surmount AEDPA’s formidable bar to habeas relief. “Although I agree with my colleagues that the best reading of the” police report in the case on which the inmate relied “is that it is not ambiguous or speculative,” he acknowledged, “I cannot say that the state court’s ruling was unreasonable under the highly deferential AEDPA standard.”

Hardiman also joined an opinion that upheld Delaware’s lethal injection protocol. However, the decision was hardly a ringing endorsement of Delaware’s practices: The panel also cautioned that its ruling “should in no way be construed as license for Delaware to stay the worrisome course it appears to have taken at times under its former protocol.” And it added that the “record before us reflects an occasional blitheness on Delaware’s part that, while perhaps not unconstitutional, gives us great pause.”

Hardiman has not weighed in directly on issues relating to abortion. In United States v. Marcavage, though, he joined an opinion vacating the conviction of an anti-abortion protester who was arrested for refusing to move away from the sidewalk in front of the Liberty Bell Center in Philadelphia. The court agreed with the protester that the sidewalk is a public forum, subjecting the government’s efforts to restrict his speech to a more exacting standard of review. The panel declined to defer to the trial court’s finding that the content of Marcavage’s message played no role in his removal from the sidewalk.

Hardiman was less sympathetic to other free speech claims. In Easton Area School District v. B.H., he dissented from a ruling in favor of students who wanted to be able to wear silicone bracelets with the slogan “I [Heart] Boobies” as part of a breast-cancer awareness campaign. Hardiman argued that the decision was “inconsistent with the Supreme Court’s First Amendment jurisprudence.” Describing the case as a “close” one, he contended that the bracelets “would seem to fall into a gray area between speech that is plainly lewd and merely indecorous.” But he deemed it “objectively reasonable to interpret the bracelets, in the middle school context, as inappropriate sexual innuendo and double entendre.” A contrary ruling, he cautioned, would require schools “to permit more egregiously sexual advocacy messages.” The Supreme Court denied the school district’s petition for review without comment, indicating that there were not four votes to review the case on the merits, but not necessarily endorsing the decision of the lower court.

And in NAACP v. City of Philadelphia, Hardiman dissented from a panel opinion holding that the city’s ban on non-commercial advertisements by private advertisers at the city’s airport violated the First Amendment. Hardiman characterized the ban as “a reasonable attempt to avoid controversy at the airport” and thereby “create a comfortable environment” there.

Hardiman’s lone campaign finance opinion suggests that he would vote to relax restrictions on campaign donations, although in the specific case before the 3rd Circuit his views worked for the benefit of police unions. He wrote for the court in striking down a provision in Philadelphia’s charter that barred police officers from making contributions to their union’s political action committee. He acknowledged the city’s “historic struggles with police and political corruption,” but he concluded that the city had not shown how the ban “serves in a direct and material way to address these harms.” He seemed to find particularly troubling the city’s claim that “the ban is part and parcel of a larger scheme that insulates police officers from all politics, while simultaneously condoning political activities by the police that have similar, if not more pernicious, implications.”

Many of the religion cases in which Hardiman has been involved have been lawsuits filed by inmates who contend that their ability to exercise their religion has been restricted by prison officials. In those cases, Hardiman generally ruled in favor of the prison officials, but in other cases he has written opinions supporting a student’s ability to express religious beliefs in the public schools. Thus, he dissented from the panel’s ruling in favor of a school district and against a mother and her son, both of whom described themselves as evangelical Christians, who were barred from reading from the Bible during a kindergarten “show and tell” activity. Hardiman suggested that “the school went too far in this case in limiting participation in ‘All About Me’ week to nonreligious perspectives,” which “plainly constituted” discrimination based on the family’s viewpoint. And Hardiman questioned the 3rd Circuit’s test for reviewing the propriety of student speech in elementary school, criticizing the factors used in that test as “highly manipulable.” “The majority’s desire to protect young children from potentially influential speech in the classroom is understandable,” he concluded, but that desire, “however admirable, does not allow the government to offer a student and his parents the opportunity to express something about themselves, except what is most important to them.” And in another case, he joined a decision against a school district and in favor of a child who was barred from distributing at school invitations to a Christmas party to be held at her church.

In other cases, Hardiman has been harder to pigeonhole. He wrote for the court in allowing a gender-stereotyping claim by a gay man who described himself as “effeminate” to go forward, reversing the district court’s grant of summary judgment in favor of the company where the man worked, and which ultimately fired him. Hardiman explained that the plaintiff was “harassed because he did not conform to” the company’s “vision of how a man should look, speak, and act – rather than harassment based solely on his sexual orientation.” Hardiman agreed with the company that “every case of sexual orientation discrimination cannot translate into a triable case of gender stereotyping discrimination.” But at the same time, he observed, the company “cannot persuasively argue that because Prowel is homosexual, he is precluded from bringing a gender stereotyping claim.”

Hardiman’s opinion for the court in a challenge to a fire department’s residency requirement similarly reaches a more liberal result. The court affirmed the district court’s ruling that the residency requirement had a disparate impact on African-American firefighters, rejecting the argument that the fire department “will be forced to open to hiring to non-residents while other municipalities exclude” its own residents. Hardiman explained that “we have no authority to endorse discrimination against firefighter candidates who do not live in North Hudson in order to protect those who do.”

In immigration cases, Hardiman has generally affirmed – in fairly unremarkable unpublished opinions – decisions going against noncitizens. But he has not hesitated to vacate decisions by the Board of Immigration Appeals when he believes that the board has erred. In Valdiviezo-Galdamez v. Attorney General, for example, Hardiman was part of a panel that ruled in favor of an asylum applicant, who alleged that he had come to the United States to avoid being involuntarily recruited into a violent gang in his home country of Honduras. The case centered on whether the applicant was being persecuted because of his “membership in a particular social group” within the meaning of federal immigration laws. The panel sent the case back to the BIA, reasoning that two requirements – “social visibility” and “particularity” – imposed by the BIA on asylum-seekers were inconsistent with the board’s earlier decisions. Hardiman concurred in the judgment for the asylum-seeker. He would have held that the BIA can interpret the term “particular social group” “to include whatever requirements it sees fit.” But, he cautioned, the BIA must also acknowledge that the requirements are a departure from its previous position and explain why it is making the change. Here, he observed, “[a]nnouncing a new interpretation while at the same time reaffirming seemingly irreconcilable precedents suggests that the BIA does not recognize or is not being forthright about, the nature of the change its new interpretation effectuates. It also unfairly forces asylum applicants to shoot at a moving target.” And in Di Li Li v. Attorney General, Hardiman joined an opinion that remanded the case to the BIA for reconsideration of a motion to reopen based on changed circumstances when the asylum applicant had become Christian and the BIA had not addressed his argument “as to how conditions have worsened over time” for Christians in China.

Several of the decisions in which Hardiman has participated have made their way to the Supreme Court on the merits. In Florence v. Board of Chosen Freeholders, Hardiman wrote for a divided panel in a challenge to a New Jersey jail’s policy of strip-searching arrestees before they join the facility’s general population. The majority reversed the district court’s ruling in favor of the arrestee. Hardiman concluded that, “balancing the Jails’ security interests at the time of intake before arrestees enter the general population against the privacy interests of the inmates,” the strip-search procedures are “reasonable.” By a vote of 5-4, the Supreme Court affirmed that ruling.

Hardiman also joined another high-profile decision that was ultimately affirmed by the Supreme Court: an en banc ruling striking down a federal law that criminalized depictions of animal cruelty in videos. The challenge to the law came from a Virginia man convicted of making and selling dog-fighting videos; he argued that the law violated the First Amendment, and both the 3rd Circuit and the Supreme Court (the latter by a vote of 8-1) agreed.

Yet another decision in which Hardiman participated will be before the court on the merits soon: In December 2016, the justices announced that they would review a trio of cases involving the interpretation of the Employee Retirement Income Security Act of 1974, which generally applies to employers that offer pensions and other benefits to their employees, but does not apply to church plans. The question before the Supreme Court is whether that exemption applies to pension plans maintained by employers – such as non-profit religious hospitals, schools, and homes for the elderly – that are affiliated with a church, or whether the exemption instead applies only to plans that were originally established by a church. Hardiman was part of a 3rd Circuit panel that ruled that “only a church can establish a plan that qualifies for an exemption” under ERISA; now the justices will decide whether that conclusion is correct.

Hardiman’s wife Lori, with whom he has three children, is from a well-connected Democratic family in Pennsylvania, but Hardiman registered to vote as a Republican in 1994. Hardiman has headed the local Big Brothers Big Sisters program, and he has also served as a “Big Brother” himself. A 2003 article in the Pittsburgh City Paper raised questions about Hardiman’s role in defending a challenge to a Ten Commandments plaque on public property, as well as his role in opposing housing discrimination cases. Hardiman is a fluent Spanish speaker who studied in Mexico; while living in Washington he worked with Ayuda, a legal aid clinic representing poor Spanish-speaking immigrants, on (among others) domestic violence and political asylum cases. During his Senate confirmation hearings, he described one of his immigration cases for Ayuda as “one of the most important cases I have ever handled.”

Thanks are due to Andrew Hamm for his significant contributions to the legal research for this post.

[Disclosure: I was among the counsel to petitioner Albert Florence in Florence v. Board of Chosen Freeholders.]
0 Replies
Reply Tue 31 Jan, 2017 07:08 pm
Gorsuch it is.
0 Replies
Reply Tue 31 Jan, 2017 09:28 pm
U.S. Senator Elizabeth Warren
1 hr ·
President Trump had the chance to select a consensus nominee to the Supreme Court. To the surprise of absolutely nobody, he failed that test.

Instead, he carried out his public promise to select a nominee from a list drawn up by far right activist groups that were financed by big business interests.

Judge Neil Gorsuch has been on this list for four months. His public record, which I have reviewed in detail, paints a clear picture.

Before even joining the bench, he advocated to make it easier for public companies to defraud investors. As a judge, he has twisted himself into a pretzel to make sure the rules favor giant companies over workers and individual Americans. He has sided with employers who deny wages, improperly fire workers, or retaliate against whistleblowers for misconduct. He has ruled against workers in all manner of discrimination cases. And he has demonstrated hostility toward women’s access to basic health care.

For years, powerful interests have executed a full-scale assault on the integrity of our federal judiciary, trying to turn the Supreme Court into one more rigged game that works only for the rich and the powerful. They spent millions to keep this seat open, and Judge Gorsuch is their reward.

Every day, our new President finds more ways to demonstrate his hostility for our independent judiciary, our civil society, and the rule of law. Now more than ever, America needs Supreme Court justices with a proven record of standing up for the rights of all Americans – civil rights, women’s rights, LGBT rights, and all other protections guaranteed by our laws. We don’t need another justice who spends his time looking out for those with money and influence.

Based on the long and well-established record of Judge Gorsuch, I will oppose his nomination.
Reply Wed 1 Feb, 2017 04:26 am
Oppose right on ahead, Pocahontas. You aint the Prez, and the nominee doesn't have to make the rulings that YOU would make (or FORCE him to make, if you could).

You're **** outta luck, here, Sister.
0 Replies
Reply Wed 1 Feb, 2017 10:24 pm
My reading on the topic convinces me the Democrats will whine a bit and then let the man in without a fight.
Reply Wed 1 Feb, 2017 11:10 pm
I hope not, Edgar! Democrats have lost so many followers already, now is not the time to be whining. We need them to be strong and stand up to Trump and his cronies! I wish we had more parties to choose from, this is working towards a dictatorship and no one intervenes! Crying or Very sad
Reply Thu 2 Feb, 2017 12:42 am
edgarblythe wrote:

My reading on the topic convinces me the Democrats will whine a bit and then let the man in without a fight.

What would you have them do? What specific things do you want them to do here?
0 Replies
Reply Thu 2 Feb, 2017 12:43 am
CalamityJane wrote:

I hope not, Edgar! Democrats have lost so many followers already, now is not the time to be whining. We need them to be strong and stand up to Trump and his cronies! I wish we had more parties to choose from, this is working towards a dictatorship and no one intervenes! Crying or Very sad

Third parties is partially why we're in the mess. Think Jill Stein voters in PA, WI, and MI are happy with their choice right now?
0 Replies
Reply Thu 2 Feb, 2017 01:07 am
CalamityJane wrote:
I hope not, Edgar! Democrats have lost so many followers already, now is not the time to be whining. We need them to be strong and stand up to Trump and his cronies!

The Left has no power to oppose Mr. Trump. If they use any Senate procedure to attempt to block the nomination, the Republicans will simply abolish the procedure.

The reason the Democrats are thinking about not blocking this nomination is so they can try to appear to be more reasonable when they try to block subsequent nominations, thereby (in theory) making it harder for the Republicans to abolish Senate procedures during that future fight.

Whereas if the Democrats try to use Senate procedures to block the current nomination, the Republicans will abolish those procedures now. And then when the next nomination comes along, the procedures will have already been abolished and the Democrats will be powerless to oppose it.

Frankly the Democrats are screwed no matter what. The hope that they might pressure Republicans to not abolish Senate procedures in the future is futile. Sort of like a drowning man hoping that he'll stay afloat if he clings to a sack full of rocks.
0 Replies
Reply Thu 2 Feb, 2017 06:39 am
Supreme Court Justice nominee Neil Gorsuch founded and led a student group called the ‘Fascism Forever Club’ at his elite high school, DailyMail.com can reveal.

The club was set up to rally against the ‘left-wing tendencies’ of his professors while attending a Jesuit all-boys preparatory high school near Washington D.C.

Although it's explainable as youthful impetuousness, this may help pull Senate Democrats out of whatever quagmire it is that they've gotten themselves into.

Gorsuch founded the ‘Fascism Forever Club’ during his freshman year at Georgetown Preparatory, a now-$30,000-a-year private Jesuit school that is one of the most selective in the United States.


The yearbook described the ‘Fascism Forever Club’ as an anti-faculty student group that battled against the 'liberal' views of the school administration.

‘In political circles, our tireless President Gorsuch’s “Fascism Forever Club” happily jerked its knees against the increasingly “left-wing” tendencies of the faculty,’ said the yearbook.

The sort of undergraduate objection long in the running. Shades of Ted Cruz, in fact. But it looks the same when you hold it up to a mirror, too. Why, I'm so old I remember when a wee neoliberal attending Brandeis University couldn't abide living in the Democratic People's Republic of Boston, and had to scurry back home to Texas so that he could wear his cowboy boots to class without being laughed at. (Cringing duopolists on both sides of the aisle, as we know, are a-skeered uh soshulism.)

Alas, and paraphrasing Donald Rumsfeld, you go to war with the Democrats you have, not the Democrats you want or might wish to have at a later time. So the battle to confirm or reject GorsuchaScalia is joined. Let's see if something interesting happens.
Reply Thu 2 Feb, 2017 08:27 pm
You dident answer the what can they do question. When the voters elected a republican Senate and President they not only screwed themselves but the democratic party as well as you and me and every other citizen in the U S. It will take some who thought they WON to realize just how stupid they were.
0 Replies

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