Potential nominee profile: Judge Thomas Hardiman, a close second to Gorsuch and a shortlister again
on Jul 2, 2018 at 9:55 am
When President Donald Trump was searching for a nominee in 2017 to fill the vacancy created by the 2016 death of Antonin Scalia, he reportedly narrowed the field to two candidates: then-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. On January 31, 2017, Trump nominated Gorsuch, and the rest is history. But with Justice Anthony Kennedy’s announcement last week that he would step down from the Supreme Court bench, Hardiman’s name has resurfaced as a potential nominee. The 52-year-old Hardiman (who will turn 53 on July 8, the day before Trump is expected to announce his new nominee) has a solidly conservative background and a champion in the president’s sister, Maryanne Trump Barry, who served with Hardiman on the 3rd Circuit and has been described as “high on Hardiman.”
In some ways, Hardiman has more in common with Justice Sonia Sotomayor than with Justice Anthony Kennedy, 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 unanimously confirmed to the 3rd Circuit in 2007, at the age of 41. Taking the bench at a young age is yet another similarity with Sotomayor, who also became a district judge at the age of 37 and who 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 11 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, in 2016 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. 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.”
In March 2018, Hardiman wrote for a three-judge panel in denying a Pennsylvania inmate’s argument that his life sentence in state court should be thrown out because his lawyer had been constitutionally inadequate. The inmate, Andy Rivera Rodriguez, contended that his lawyer should not have agreed to waive his right to a jury trial because Rivera Rodriguez was intellectually disabled, with an IQ of 58, and therefore could not have been sentenced to death. The court of appeals rejected that argument, explaining that there was no “bright-line rule for determining” whether a defendant is intellectually disabled, and so it would not have been clear to Rivera Rodriguez’s attorney that he was ineligible for the death penalty based just on his IQ.
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 noncommercial 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 April 2018, Hardiman was part of a three-judge panel that ruled in favor of the Little Sisters of the Poor in their effort to intervene in litigation challenging regulations issued under the Affordable Care Act. The act contains what is sometimes called the “birth control mandate,” which requires employers to provide their female employees with health insurance that includes access to certain forms of birth control. In 2013, the Obama administration issued regulations to accommodate religious nonprofits, like the Little Sisters, that objected to the mandate for religious reasons, but the Little Sisters challenged the accommodation, arguing that it too would entangle them in efforts to provide birth control. In 2016, the Supreme Court heard oral argument in a group of cases on this question, but (after Scalia’s death) sent the cases back to the lower courts with instructions for the parties to try to work out a deal that would both respect the nonprofits’ religious beliefs and ensure that the women involved still have access to birth control.
In 2017, in response to an order from the president, the Department of Health and Human Services issued interim rules that created both a “religious exemption” and a “moral exemption,” but Pennsylvania challenged the rules, and the Little Sisters sought to enter the case. A federal district court rejected the group’s request, but on appeal Hardiman was part of the three-judge panel that reversed. In his opinion for the panel, Hardiman reasoned that the Little Sisters had a “concrete” interest in ensuring that the religious exemption survives because the commonwealth’s lawsuit could erase the protection that they enjoy under the interim rules.
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.”
And in MacDonald v. Cashcall, Hardiman joined an opinion in favor of a New Jersey man who took out a five-year, $5000 loan with a 116% interest rate, resulting in a finance charge of over $35,000. The court of appeals upheld the district court’s decision rejecting the lender’s motion to require the man to take his case to arbitration conducted by the Cheyenne River Sioux Tribal Nation. The panel reasoned that the arbitration mechanism specified does not exist, which means that there was no forum in which an arbitrator could determine whether the arbitration agreement must be enforced.
In immigration cases, Hardiman has generally affirmed – in fairly unremarkable unpublished opinions – decisions going against noncitizens. In a published case, Cazun v. Attorney General, Hardiman concurred in a ruling against a Guatemalan woman who was deported but then tried to return to the United States and claim asylum after she was threatened, tortured and sexually assaulted by the head of a major drug-trafficking gang. The asylum officer agreed that the woman was credible, but concluded that she was ineligible for asylum because the Board of Immigration Appeals had interpreted the Immigration and Nationality Act to bar asylum for a noncitizen who was previously removed from the United States and has had a removal order reinstated. (The woman was, however, eligible for other, less desirable forms of relief, which (unlike asylum) would not give her a potential path to U.S. citizenship or prevent her from being sent to a country other than Guatemala.) The majority concluded that it should defer to the BIA’s interpretation of the INA, but Hardiman wrote separately to emphasize that the INA was not “silent or ambiguous” on the question, a key criterion for agency deference; instead, he would “enforce the statute as written rather than defer to the agency’s interpretation.”
But Hardiman 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.
In June 2017, the justices unanimously reversed a decision in which Hardiman had participated, in 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 was whether that exemption applies to pension plans maintained by employers – such as nonprofit 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, but the Supreme Court disagreed. In an opinion by Justice Elena Kagan, the justices concluded that the exemption also extends to church-affiliated plans, even if they were not established by the church.
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.”
An earlier version of this profile appeared on the blog in January 2017. Thanks are due to Andrew Hamm and Aurora Temple Barnes for their 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.]