Donald Trump is reportedly close to making what will be one of the biggest decisions of his entire presidency: choosing a replacement for late Supreme Court Justice Antonin Scalia. Trump is now saying he will announce a pick next week.
After Senate Majority Leader Mitch McConnell successfully obstructed President Obama’s nominee, Merrick Garland, for nearly a year, the Court is still short a member, a vacancy that Trump and his allies in the Senate are eager to fill quickly. In May, Trump released a list of 11 possible choices for the slot, before adding 10 more in September. As an effort to signal his reliability to conservatives, he promised he would make his choice only from the names on these lists.
Now, Politico’s Eliana Johnson and Shane Goldmacher report that Trump has narrowed the choices to three, all of whom are on federal appeals courts:
- Neil Gorsuch, 49, of the 10th Circuit Court of Appeals (which covers Colorado, Kansas, New Mexico, Utah, Wyoming, and Oklahoma)
- Thomas Hardiman, 51, of the Third Circuit Court of Appeals (which covers Delaware, New Jersey, and Pennsylvania)
- William “Bill” Pryor, 54, of the 11th Circuit Court of Appeals (which covers Alabama, Georgia, and Florida)
Johnson and Goldmacher report that Gorsuch and Hardiman have an advantage and Pryor’s chances have waned.
All three finalists are white men appointed to their posts by George W. Bush, but they vary in background and in how contention their nominations would likely be. Here’s a rundown of what each choice would mean.
While Trump’s list includes more graduates of state schools and fewer Ivy League grads than most Supreme Court shortlists, Gorsuch is exactly the kind of elite-educated figure who’s traditionally made it onto the Court. A graduate of Columbia (where he was a Truman scholar), Oxford (where he got a doctorate as a Marshall scholar), and Harvard Law (which five other members of the Court attended), Gorsuch clerked on the DC Circuit and then for both Justices Byron White and Anthony Kennedy.
But Gorsuch is also more outspoken and forthright in his positions than your typical Supreme Court aspirant. He wrote a full book on assisted suicide and euthanasia that, while fairly recapping both sides, came down decisively against them, arguing that “human life is fundamentally and inherently valuable, and that the intentional taking of human life by private persons is always wrong.” It’s not hard to infer what that implies for Gorsuch’s attitudes on abortion.
He’s reliably, though idiosyncratically, conservative on a number of other issues as well. A former law clerk describes him as having a “deep commitment to the original understanding of the constitution and the rule of law.” Gorsuch delivered a speech after Scalia’s death (an event which he stated moved him to tears) praising his possible predecessor for understanding the distinction between judge and legislator, and for striving not to use the Court to make law.
He appears to believe Obamacare’s birth control mandate is unconstitutional on religious liberty grounds. He has taken a limited view of a defendant’s right to competent representation. Intriguingly, he’s suggested that he thinks Chevron v. NRDC, a foundational decision in administrative law that gives regulatory agencies broad deference in determining rules, was wrongly decided. That could give plaintiffs — whether they’re businesses wanting laxer rules or advocacy groups wanting tougher ones — more say in the rulemaking process.
But he’s also suggested more sympathy for criminal defendants than most conservative picks might have. He sided with a Albuquerque middle schooler who was strip-searched by his school, dissenting while his colleagues ruled that the school police officer and other employees are immune from lawsuits. And he’s expressed concern with overcriminalization, saying that states and the federal government have enacted too many statutes forbidding too much activity.
Trump has been known to say that “the police in our country do not get respect.” That is assuredly not Thomas Hardiman’s fault.
On the Third Circuit, Hardiman has consistently sided with law enforcement against defendants and inmates. He ruled that a policy of strip-searching jail inmates didn’t violate the Fourth Amendment’s protections against unreasonable search (an opinion the Supreme Court upheld). He’s also written, in dissent, that the First Amendment does not give citizens the right to tape police — something with which every state in the union currently disagrees.
Hardiman’s pre-judicial career is full of the kinds of things liberals and Democrats don’t like: He donated to Republican candidates before being appointed to the bench (something that is neither illegal nor, to most legal experts, a big deal), and he represented plenty of political clients and political cases while he was in private practice. Most of this is insignificant: Just like it’s a defense lawyer’s job to defend murderers, it’s a civil lawyer’s job to defend companies accused of discrimination.
But it’s ironic that one of Hardiman’s most high-profile cases was a housing discrimination suit against a company accused of conspiring to keep out low-income clients — given that the president who might appoint him to the Supreme Court, early in his own career, settled a housing discrimination suit of his own against the federal government.
Pryor has been on Trump’s shortlist at least since the February 13 GOP presidential debate, where he came up as an example of the kind of justice Trump would like to appoint. Pryor, 54, probably has the biggest national profile of anyone on this list due to his starring role in the 2005 showdown between President Bush and Senate Democrats over judicial appointments.
He was initially nominated in 2003 and faced fierce opposition for his unusually strident and blunt recitation of conservative dogma. Asked about a statement he made calling Roe v. Wade “the worst abomination in the history of constitutional law,” Pryor said, “I stand by that comment. I believe that not only is [Roe] unsupported by the text and structure of the Constitution, but it has led to a morally wrong result. It has led to the slaughter of millions of innocent unborn children.”
He also, as attorney general of Alabama, wrote an amicus brief urging the Supreme Court to uphold laws banning sodomy and, in the words of Sen. Russ Feingold (D-WI), “equated private, consensual sexual activity between homosexuals to prostitution, adultery, necrophilia, bestiality, incest and pedophilia.” He also purposely rescheduled a family trip to Disney World to avoid attending during “Gay Day,” lest his children see gay people enjoying theme park rides.
Pryor eventually got a recess appointment to the 11th Circuit in February 2004, and was finally officially confirmed in 2005 as part of the “Gang of 14” compromise. In his position he’s mostly been a doctrinaire conservative, the most notable exception being a ruling arguing that discrimination against trans people violates the Equal Protection Clause.
That decision appears to be harming his chances in 2017. According to Politico’s Johnson and Goldmacher, Pryor is being attacked from the right “on an off-the-record list-serv that includes many in the conservative legal and political communities,” for siding in favor of trans rights. While the left almost defeated Pryor’s appellate nomination, the right could be in the process of defeating his Supreme Court bid.