Hardiman May Be Most Moderate of Trump SCOTUS Finalists

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By Patrick Gregory

Judge Thomas M. Hardiman could become the next swing vote at the U.S. Supreme Court if President Donald Trump chooses him to replace the late Justice Antonin Scalia, one study says, but his opinions demonstrate a solid conservative record.

A recent study predicted that Hardiman would act as a moderate if he were to join the high court, and another predicted that he would be less “Scalia-like” than other finalists.

Still, Hardiman has authored many opinions that would please Trump’s conservative backers. He has recently written two decisions in favor of gun rights.

He has also authored pro-government opinions in two prisoners’ rights disputes, with which the Supreme Court agreed.

Hardiman is reportedly one of four finalists from Trump’s original list of 21 potential Supreme Court nominees.

The seat formerly held by Scalia has been vacant since his death last year.

Moderate, Swing Vote?

Hardiman “falls into the moderate category” according to a September 2016 study, “Possible Presidents and Their Possible Justices,” which attempted to predict how potential nominees would act as justices.

Instead of examining their records as judges, the study uses a “tried-and-true approach” for measuring ideology described in “Picking Federal Judges: A Note on Policy and Partisan Selection Agendas,” 54 Political Research Quarterly 623 (2001).

Using that method, the study averaged the ideology of the two senators who represented Hardiman’s home state of Pennsylvania when he was nominated in 2007—Sen. Rick Santorum (R) and the late Sen. Arlen Specter (R).

Specter was “rather far to the left for a Republican,” the study said. He even became a Democrat in 2009.

The study suggested that as a moderate, Hardiman could wield power as a swing vote similar to Justice Anthony M. Kennedy.

If Hardiman joins the court, “there is some possibility that he would relieve Kennedy of Kennedy’s ‘super median’ status,” the study said.

“Hardiman or Kennedy could form majority coalitions with the left or right side of the Court—in much the same way that Kennedy” and former Justice Sandra Day O’Connor “did in the 1990s-2000s,” the study said.

Another study, updated Jan. 25, predicted that Hardiman would be significantly less “Scalia-like” than two other reported finalists—Tenth Circuit Judge Neil M. Gorsuch and Eleventh Circuit Judge William H. Pryor—in “Searching for Justice Scalia: Measuring the ‘Scalia-ness’ of the Next Potential Member of the U.S. Supreme Court.”

Sixth Circuit Judge Raymond M. Kethledge, who is a fourth reported finalist, ranked similarly to Hardiman in this study.

Gun Rights Record

Hardiman has written two noteworthy opinions in favor of gun rights in recent years.

He dissented from a ruling upholding a New Jersey requirement that handgun permit applicants demonstrate a “justifiable need” to carry such a weapon in public, in Drake v. Filko, 724 F.3d 426 (3d Cir. 2013) (82 U.S.L.W. 179, 8/6/13).

The requirement violated the Second Amendment because there was no “fit between the justifiable need requirement” and the state’s interest in “reducing misuse or accidental use of handguns,” he said.

“Put simply, the solution is unrelated to the problem it intends to solve,” Hardiman said.

The U.S. District Court for the District of Columbia quoted that language in its 2016 decision rejecting a similar requirement, in Grace v. District of Columbia, 187 F. Supp. 3d 124 (D.D.C. 2016) (84 U.S.L.W. 1693, 5/19/16).

In another pro-Second Amendment rights opinion, Hardiman wrote that a federal statute barring two individuals from having firearms because of their misdemeanor convictions was “unconstitutional as applied to them,” concurring in Binderup v. Att'y Gen., 836 F.3d 336 (3d Cir. 2016).

Those individuals “presented unrebutted evidence that their offenses were nonviolent and now decades old, and that they present no threat to society, which places them within the class” of “persons who have a right to keep and bear arms,” Hardiman said.

Prisoners’ Rights, SCOTUS Agrees

The Supreme Court agreed with two of Hardiman’s opinions in favor of corrections officers in prisoners’ rights suits.

His opinion for the Third Circuit upheld a jail policy mandating suspicionless strip searches of arrestees before placing them in the general prison population, in Florence v. Bd. of Chosen Freeholders of Cty. of Burlington, 621 F.3d 296 (3d Cir. 2010) (79 U.S.L.W. 1399, 10/5/10). The Supreme Court affirmed, 566 U.S. 318 (2012) (80 U.S.L.W. 1332, 4/3/12).

Hardiman dissented from a decision denying qualified immunity to prison officials concerning an inmate’s suicide, in Barkes v. First Corr. Med., Inc., 766 F.3d 307 (3d Cir. 2014).

Under the qualified immunity doctrine, government officials can’t be held liable for damages caused by their actions unless they violated clearly established rights.

Here, the plaintiffs claimed prison administrators failed to monitor a private contractor who provided deficient mental health service.

The Third Circuit found that the administrators weren’t protected from suit because they violated a clearly established right to “proper implementation of adequate suicide prevention protocols.”

Hardiman said such a right “had never been established before today.” The Supreme Court again agreed and reversed the decision of the Third Circuit, in Taylor v. Barkes, 83 U.S.L.W. 4389, 2015 BL 171241 (U.S. June 1, 2015) (83 U.S.L.W. 1814, 6/2/15).

‘Boobies,’ Bracelets, Bibles

Hardiman dissented from a finding that a school district couldn’t enforce a ban on “I [heart] boobies!” bracelets promoting breast cancer awareness, in B.H. v. Easton Area Sch. Dist., 725 F.3d 293 (3d Cir. 2013) (82 U.S.L.W. 230, 8/13/13).

The Third Circuit reasoned that the bracelets’ message wasn’t “plainly lewd” and that the school district failed to show that the bracelets would be disruptive at school.

But Hardiman wrote that the school had authority to restrict speech it reasonably considered to be “inappropriate sexual double entendre,” in a dissent joined by four other judges.

In “close cases, such as this one, there is virtue in deferring to the reasonable judgments of those responsible for educating our nation’s youth,” Hardiman said.

But Hardiman argued against a school speech restriction, dissenting in Busch v. Marple Newtown Sch. Dist., 567 F.3d 89 (F.3d 2009) (77 U.S.L.W. 1756, 6/9/09).

There the Third Circuit found that a school district didn’t violate the free speech rights of a kindergarten student or his mother when it refused to allow the mother to read a Bible passage after inviting her to read her son’s favorite story.

Hardiman said that the mother’s reading was “responsive to the assignment” given by the school, which was for students to share their interests.

The only reason for excluding the mother’s reading was “its religious character,” and the school therefore engaged in unconstitutional viewpoint discrimination, Hardiman said.

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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