‘Lawyer’s judge’ eyed for high court
WASHINGTON — Judge Thomas M. Hardiman, one of three leading contenders to be named by President Trump to the Supreme Court, is a conservative jurist from Pittsburgh with a personal story not unlike many of the blue-collar voters who catapulted Trump to the White House.
The son of a cab driver and the product of public schools in Waltham, Mass., Hardiman, 51, helped pay for his education by driving a taxi.
And unlike the current high court justices, he does not have an Ivy League pedigree; he was the first in his family to graduate college, earning a degree from University of Notre Dame before heading to Georgetown law school. His wife, Lori Zappala, came from a prominent Democratic family in Pittsburgh.
“He is a kind of lawyer’s judge, someone who focuses on the facts in the case before him,” said University of Pittsburgh law professor Arthur Hellman. “He doesn’t impose an overarching view of the law.”
Trump has said he will announce his pick on Thursday to replace the late Justice Antonin Scalia. Other leading contenders include Judge Neil M. Gorsuch from the 10th Circuit Court of Appeals in Colorado and Judge William H. Pryor from Alabama, who serves on the 11th Circuit. All three are among the 21 judges whom Trump named during the campaign as potential Supreme Court nominees.
Hardiman is a former trial judge who moved up to the 3rd Circuit Court of Appeals in Philadelphia, where he serves along with the president’s sister, Judge Maryanne Trump Barry.
Lawyers in Pittsburgh describe Hardiman — a strong defender of the 2nd Amendment — as personable, smart, hard-working and practical, but not as academic and ideological as Scalia, the court’s outspoken conservative.
And in contrast to Pryor, who was an early favorite to replace Scalia, Hardiman has not made highly controversial statements on issues such as abortion. Pryor’s characterization of the landmark abortion case Roe vs. Wade as an “abomination” ensures he would face a rough confirmation, which appears to have reduced his chances of being picked.
Hardiman won a unanimous confirmation to the 3rd Circuit Court from the Senate in 2007. He has, however, written several opinions that could fuel opposition from Democrats.
Hardiman staked out a strong position four years ago in favor of a right to carry a gun in public. He dissented when the 3rd Circuit upheld a New Jersey law that required people seeking a gun permit to demonstrate a “justifiable need” to be armed. Plaintiffs who had been turned down for permits sued, alleging the restriction violated the 2nd Amendment.
A district judge upheld the law, and the 3rd Circuit agreed by a 2-1 vote. The majority said that while the Supreme Court had recognized a right to have a gun at home for self-defense, it had not ruled the Constitution protected the right to carry a gun in public.
Hardiman wrote a 40page dissent, arguing that Scalia and the high court had described the 2nd Amendment as protecting a right to “self-defense.” Because “the need for self-defense naturally exists outside and inside the home, I would hold the 2nd Amendment applies outside the home,” he wrote in Drake vs. Filko. In passing its law, “New Jersey has decided that fewer handguns legally carried in public means less crime,” he wrote. “It is obvious that the justifiable need requirement functions as a rationing system designed to limit the number of handguns carried in New Jersey,” he said, but it cannot stand in the face of a 2nd Amendment challenge.
The law survived an appeal to the Supreme Court, however. The justices without comment turned down a petition in 2014 asking them to review the 3rd Circuit’s decision.
The justices are likely to take up the issue again in the next year or so. Several states, including California, face 2nd Amendment suits from people who have been denied the right to carry a concealed weapon.
Hardiman also wrote an important opinion that upheld the power of jailers to strip-search all new inmates, even if they are being held briefly for failing to pay a fine and do not appear to pose a security risk. A classaction suit was brought on behalf of people who had been arrested and stripsearched in a county jail in New Jersey. They alleged that these full-body exams amounted to “unreasonable searches” in violation of the 4th Amendment. The lead plaintiff, Albert Florence, had been arrested and briefly jailed for not paying a fine that he had, in fact, paid.
A district judge ruled for the plaintiffs, but Hardiman spoke for a 2-1 majority to throw out their claim. “We do not minimize the extreme intrusion on privacy associated with a strip-search by law enforcement officers,” he said. However, the balance tips in favor of the county because the “prevention of the entry of illegal weapons and drugs is vital to the protection of inmates and prison personnel alike.”
The Supreme Court agreed to hear an appeal in Florence vs. Board of Chosen Freeholders, but affirmed Hardiman’s 3rd Circuit decision by a 5-4 vote in 2012.
His judicial record is not uniformly conservative. In 2009, his opinion for the 3rd Circuit revived a claim of “gender stereotyping discrimination” brought by a man who said he was harassed, ridiculed and finally fired from his job at a specialty printing company because he was seen as effeminate. Hardiman said neither Congress nor the Supreme Court had outlawed discrimination based on an employee’s sexual orientation.
But, he said, the justices had said employees may sue for illegal discrimination if they are fired for failing to conform to “gender stereotypes.” In the case of Prowel vs. Wise, he cleared the way for the fired employee to take that claim before a jury.
Hardiman ‘focuses on the facts in the case before him. He doesn’t impose an overarching view of the law.’ — Arthur Hellman, University of Pittsburgh law professor