Will the second time be a charm for Judge Thomas M. Hardiman?
Hardiman, 53, was the runner-up last year in the seat that went to Justice Neil M. Gorsuch.
He has a solidly conservative record, including a strong defense of gun rights. And Hardiman’s working-class background could bring a fresh perspective to the nation’s highest court, giving him a special appeal to the voters who propelled President Trump’s drive to the White House.
He would become the current court’s only non-Ivy League graduate. The first in his family to graduate from college, Hardiman drove a cab to help pay his tuition.
As a young man, he learned Spanish, studied in Mexico and worked with Ayuda, a legal aid clinic in Washington, where he represented Spanish-speaking immigrants, including those who were seeking political asylum.
Beyond that, Hardiman had an inside advantage: He serves on the 3rd Circuit Court of Appeals in Philadelphia along with Judge Maryanne Trump Barry, who has reportedly urged her brother to choose him.
Hardiman’s compelling personal back story may make him harder for Senate Democrats to oppose.
But he has not appeared to be among Trump’s top three candidates in the search to replace retiring Justice Anthony M. Kennedy.
He has been seen as a capable, hardworking and well-liked judge. But he did not have a national reputation as a legal thinker, and even lawyers in Pittsburgh said last year that they do not see him as Supreme Court material.
“He takes the case before him and looks at the facts and precedents, but without imposing an overarching view of the law,” said University of Pittsburgh law professor Arthur Hellman. “It’s hard to assess what he would be like as a Supreme Court justice. My guess is that he will be a cautious judge, at least for a few years.”
President George W. Bush chose Hardiman to become a district judge in 2003 and then elevated him to the appeals court two years later, when he won unanimous confirmation from the Senate.
Hardiman does not have record of strident comments on issues such as abortion or gay rights that could fuel opposition in the Senate.
He grew up in Waltham, Mass., where his father ran a company that provided taxi service and school transportation. Hardiman won a merit scholarship to go the University of Notre Dame, and he earned his law degree at Georgetown University in Washington. He practiced law in Washington before moving to Pittsburgh. His wife, Lori Zappala Hardiman, comes from a prominent Democratic family long active in Pittsburgh politics.
He staked out a strong position four years ago in favor of the 2nd Amendment right to carry a gun in public. He dissented when the 3rd Circuit upheld a New Jersey law that required people seeking gun permits to demonstrate a “justifiable need” to be armed. Several plaintiffs who had been turned down for permits sued, alleging the restriction violated the 2nd Amendment.
A district judge upheld the law — as did the 3rd Circuit, by a 2-1 vote. The majority said that although 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 40-page dissent, arguing the high court and Justice Scalia 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 the law, “New Jersey has decided that fewer handguns legally carried in public means less crime…. 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 wrote, maintaining that the law could not stand in the face of 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.
Hardiman also wrote an important opinion that upheld the power of jailers to strip-search all new inmates, even those being held briefly for failing to pay a fine who do not appear to a pose a security risk. A class-action suit was brought on behalf of people who had been arrested and strip-searched in a county jail in New Jersey. They alleged 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. It later turned out he had paid the fine.
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 wrote, but he added that “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 the case, Florence vs. Board of Chosen Freeholders, but affirmed Hardiman’s 3rd Circuit decision by a 5-4 vote in 2012.
However, Hardiman’s judicial record is not uniformly conservative, which raises concerns among conservatives.
In 2009, one of his opinions 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 noted that neither Congress nor the Supreme Court had outlawed discrimination based on an employee’s sexual orientation. However, he said, the justices had said employees may sue 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 his claim before a jury.