Awaiting Trump’s Pick

(Photo: AP/Cliff Owen)

Judge William Pryor of the 11th Circuit Court of Appeals on November 17, 2016

Without a doubt, President Donald Trump’s pick for the Supreme Court will be very conservative—and the question is what Senate Democrats will do about it. Trump, of course, does not need to pick a justice from the far right. In light of the anger over the Republicans’ stonewalling of Chief Judge Merrick Garland’s nomination, Trump could pick someone from the middle who would be a consensus candidate. But as in selecting his cabinet and announcing his initial policies, Trump has shown zero interest in healing the partisan divide. The rumored frontrunners for the Supreme Court—Neil Gorsuch, Thomas Hardiman, and William Pryor—are all individuals highly recommended by the Heritage Foundation and the Federalist Society because each would be a conservative justice in the mold of Antonin Scalia.

Neil Gorsuch, 49, is a judge on the United States Court of Appeals for the Tenth Circuit in Denver, nominated to that position by President George W. Bush. Gorsuch has stellar academic and professional qualifications, much like those of the current eight justices. He is a graduate of Harvard Law School and was a Marshall Scholar at Oxford. He clerked on the United States Court of Appeals for the District of Columbia for conservative Judge David Sentelle and on the United States Supreme Court for Justices Byron White and Anthony Kennedy. He served in the Bush Justice Department before his judicial appointment.

Gorsuch has been a consistently conservative appellate judge, ruling in favor of plaintiffs challenging on religious grounds the requirements in Affordable Care Act for the provision of contraceptive insurance coverage for women employees. Like Scalia, he has expressed disagreement with the separation of church and state and opposed preventing the government from taking actions that are an endorsement of religion. In two dissenting opinions, he objected to his court’s finding religious symbols on government property to be an impermissible establishment of religion. He has been a vote in favor of expanding gun rights and against those on death row.

Thomas Hardiman, 51, is a judge on the United States Court of Appeals for the Third Circuit, which sits in Philadelphia, also nominated for that position by George W. Bush. A graduate of Notre Dame and Georgetown Law School, he was the first member of his family to go to college. As a federal court of appeals judge, he too has been a solid conservative vote. Hardiman wrote the opinion for the Third Circuit holding that jails could strip-search individuals arrested for even minor crimes, a ruling upheld by the Supreme Court in an ideologically divided 5–4 decision. He also authored an opinion extending the Second Amendment’s protection beyond the Supreme Court’s decisions, striking down a New Jersey law requiring people to show a “justifiable need” to get a permit for carrying a handgun in public.

Yet, there also have been occasional exceptions to Hardiman’s conservative voting record. In one case, he wrote the opinion for his court holding that a gay man who was fired for being effeminate should be able to sue his employer. 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’s opinion said that the man’s claim, which was based on “gender stereotyping,” could go forward under Title VII, which prohibits employment discrimination based on sex.

William Pryor, 54, also appointed by George W. Bush, sits on the United States Court of Appeals for the 11th Circuit in Atlanta. Pryor is a graduate of Tulane Law School. Unlike Gorsuch and Hardiman, whom the Senate confirmed to the appellate bench by voice vote, Pryor faced a filibuster when his nomination reached the Senate floor, because Democrats objected to his record of hostility to civil rights while serving as Alabama’s Attorney General. Ultimately, the Democrats ended the filibuster when the Republicans threatened the “nuclear option” and the elimination of the filibuster for judicial nominations. Pryor was confirmed 53 to 45.

Pryor has called Roe v. Wade the “worst abomination in the history of constitutional law” and has defended laws criminally punishing private consensual adult homosexual activity. As a judge on the 11th Circuit, he has consistently voted to uphold death sentences, in favor of broad powers of the federal government to deport non-citizens, and against criminal defendants. In the area of civil rights, he rejected a challenge to the Georgia law requiring photo identification for voting, and upheld redistricting in Alabama that the Supreme Court later concluded was discriminatory.

What will the Democrats do when asked to confirm one of these three (or someone else on Trump’s list of conservative possibilities) to the Supreme Court? There’s a strong case to be made that Republicans stole this seat by their unprecedented action in blocking Garland’s confirmation. In American history, a vacancy in the last year of a president’s term 24 times. The nominee was confirmed in 21 of those instances, and denied confirmation in three. But never before did the Senate refuse to hold hearings or a vote.

Will this embolden the Democrats to try to block Trump’s pick, including by filibuster? My sense is that this is most likely if Pryor is the nominee, and will be more difficult if Gorsuch or Hardiman is picked. But any one of these three would be an extremely conservative voice and vote on the Court for decades to come.

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