Reliably conservative. Personable and engaging. A sharp legal mind.
The benchmarks President Trump is weighing for his Supreme Court nominee is now down to two leading contenders, according to sources close to the selection process.
Both are white males and federal appeals court judges appointed by President George W. Bush: Neil Gorsuch from Denver and Thomas Hardiman who has chambers in Pittsburgh.
A few other judges remain officially in the mix, but linger on the rims, as an intensified two-week selection process moves to a dramatic finish.
“I have made my decision pretty much in my mind, yes,” Trump told Fox News’ Sean Hannity. “That’s subject to change at the last moment, but I think this will be a great choice.”
Trump reiterated the name will be revealed Thursday, but sources say the president has privately kept one person in mind for some time. He has met with at least three candidates to replace the late Antonin Scalia, whose seat on the high court has been vacant nearly a year.
“There’s a hope that if the president nominates someone who is extremely talented, strong intellectually and is in the mainstream of legal thought– and all these people were are talking about are – that while there will be lots of debate and some disagreement, the Senate will ultimately confirm the nominee without a high degree of obstruction,” Leonard Leo, an adviser to Trump on the Supreme Court, told Fox News exclusively.
Sources caution against billing one finalist as a presumptive favorite, saying the decision is solely in the president’s hand, which he has not revealed.
But supporters of several candidates continue to solicit White House officials, knowing last minute change-of-hearts can and do happen.
East Coast pedigree with a heartland touch
Gorsuch’s name has been rising in recent weeks. His age (he turns 50 this summer, with the potential for a long tenure on the court), impeccable resume (Columbia/Harvard/Oxford and clerking for two Supreme Court justices), and creative legal writing are all seen as pluses.
The Colorado native received unanimous confirmation a decade ago to his current seat on the 10th Circuit U-S Court of Appeals.
An academic study from November comparing top court successors to Scalia — based on judicial philosophy and textual approach– put Gorsuch second among Trump’s “List of 21” for his “Scalia-ness” props.
Gorsuch– whose late mother was President Reagan’s EPA administrator– is praised (and tweaked) for an often conversational writing style– using popular cultural references and grammatical contractions in explaining his views.
This 2012 gem on workplace injury liability: Carnival “haunted houses may be full of ghosts, goblins, and guillotines, but it’s their more prosaic features that pose the real danger. Tyler Hodges found that out when an evening shift working the ticket booth ended with him plummeting down an elevator shaft. “
One concern for conservatives: he has never written an opinion dealing with the constitutional right to abortion, so his views there remain a wildcard.
But some legal scholars say Gorsuch’s 2009 book questioning laws allowing assisted suicide makes parallels to a central question for anti-abortion supporters: the idea that intentional, legally-sanctioned ending of human life is wrong.
Former law clerks who spoke to Fox News on condition of anonymity cite his experience in the Bush Justice Department and, on the bench, a rigid adherence to “originalism”– the judicial philosophy spearheaded by Scalia that judges should follow the Constitution’s original text, not insert personal, evolving policy preferences.
His views on criminal law (including the death penalty), interstate commerce, and religious liberty match much of Scalia’s jurisprudence.
Blue collar appeal
Judge Hardiman may have more humble personal roots, but his legal record is just as strong.
His supporters note he was the first in his family to attend college, and drove a taxi to finance his law school education. The fact he did not attend an Ivy League school (unlike every current member of the high court and Scalia) may appeal to Trump’s stated populist sentiments.
Some commentators compare the 51-year-old avorably to Justice Samuel Alito in terms of personality and jurisprudence. Both served on the 3rd Circuit U-S Court of Appeals.
Among the issues the Massachusetts native has tackled include gun rights. In a ruling last year, he backed a decision that said non-violent felons enjoyed the right carry a weapon.
“Their crimes of conviction were nonviolent and that their personal circumstances are distinguishable from those of persons who do not enjoy Second Amendment rights because of their demonstrated proclivity for violence,” he wrote, showing the measured, non-flashy language that is his trademark.
He also dissented in a court ruling upholding a New Jersey law that mandated potential gun owners show a “justifiable need” to carry a handgun in public. He said the constitutional right “to keep and bear arms” extends beyond the home for self-protection.
One more thing might appeal to President Trump: respect for the separation of powers.
“I have no hesitation in applying a law regardless of what I might think about it,” Hardiman said during his 2006 Senate confirmation. “I think any good judge recognizes his or her place in our constitutional government, and that place is not to upset the will of the people as expressed through their elected representatives.”
If ideological “reliability” is the key presidential criteria to fill a high court vacancy, “confirmability” may be a close second, as the nominee must navigate a hyper-partisan Senate fueled by well-financed advocacy groups on both sides.
White House officials– past and present– typically do not publicly discuss the political calculus that goes into ensuring a successful confirmation. But privately, they admit weighing whether a future justice will be acceptable, with as little as controversy as possible– the better to preserve political capital for other legislative and policy fights.
Legal advisers to President Barack Obama touted his “no drama” approach to most of his judicial picks.
Justices Sonia Sotomayor and Elena Kagan– while carving clear liberal records– have yet to display the sharp rhetorical elbows and bombastic charm Scalia employed for three decades on the court.
Conservatives are confident whoever is chosen, will ultimately prevail.
“A lot of the people who voted them in at the appellate level are still there, including people like [Democratic] senators [Dianne] Feinstein and [Charles] Schumer. People like then-senator Obama,” Carrie Severino, chief counsel of the Judicial Crisis Network, said. “These are people who at the time of their confirmation had bipartisan support, and now should have even more so because they have such long and stellar records on the bench.”
JCN will be launching a $10 million national ad campaign to gather public support for the nominee.