The Corner

Law & the Courts

High Court Dark Horse

It is surprising to me that so little attention has focused on one of the three reported finalists to be Donald Trump’s first nomination to the Supreme Court. It would not surprise me at all if that finalist, Thomas Hardiman of the Third Circuit Court of Appeals, ends up as his choice. In fact, if I had to lay money, I’d lay it on him. I’ve been doing a lot of sleuthing and some reading of tea leaves, and I’d think the odds right now are Hardiman 50 percent, Neil Gorsuch of the Tenth Circuit 40 percent, Bill Pryor of the Eleventh Circuit about 8 percent, Diane Sykes of the Seventh Circuit 1 percent, and a wild card (Trump being Trump, this can never be counted out) also at 1 percent.

For purposes of this short Corner post, please understand that this educated guesstimate has nothing to do with the relative merits of each potential nominee, nor with my own preferences. (I am well known as a longtime admirer of Pryor and Sykes.)

I’m using information from numerous sources (none of whom say Hardiman is the most likely), plus my own observations of how Trump operates.

First, Trump likes to leak red herrings. With all the latest “informed opinion” saying Gorsuch looks to be the most likely choice, that news actually makes me think it less likely Gorsuch will ultimately get it.

Second, Trump likes to consider himself the tribune of the working man. Gorsuch grew up in an “elite” family and has the elite pedigree of Columbia, Oxford, and Harvard. Hardiman was the first in his family ever to attend college; drove a taxicab to help put himself through school; and turned down a Harvard scholarship to attend Notre Dame.

Third, Trump’s sister, Judge Maryanne Trump Barry, serves on the same circuit court as Hardiman and reportedly has recommended him quite highly to her brother. Personal connections matter a great deal to Trump.

Fourth, Trump likes people who “look the part,” and he has a thing for athletes. All the finalists are attractive and look the part of distinguished judges. But I think Trump will especially like Hardiman, whose hair is just the right mix of still-dark with encroaching gray. And in high school he played all three major sports: football, basketball and baseball.

Fifth, Trump likes winning. Of the three reported finalists, Hardiman seems the easiest to confirm — both because he has written less on “hot button” subjects that enrage the Left than Gorsuch or especially Pryor has, and because he was confirmed to the Court of Appeals by a 95–0 vote. (Gorsuch’s approval also showed no recorded opposition, but it was a voice vote; the likes of Senators Chuck Schumer and Diane Feinstein can claim not to have affirmatively voted for him, but they are on record approving Hardiman.) Democrats, of course, have in the past voted against nominees for a higher court that they approved for a lower court, but the earlier approval in some cases has been shown to make it at least marginally more difficult to explain a “no” vote later — and thus has led, more often than not, to grudging “yea” votes.

Sixth, Trump likes rewarding those who were “nice” or “good” to him. Hardiman hails from Pennsylvania, which was key to Trump’s victory. Gorsuch is from Colorado, which gave a 5 percent plurality to Hillary Clinton.

Seventh, on substance, Hardiman in his decisions seems to have a particular predisposition to siding with police, and with longer criminal sentences. This plays right into the single biggest law-related issue for Trump, hitting him at an instinctual/emotional level rather than at the level of abstruse constitutional doctrine.

Eighth, to repeat, Maryanne Trump Barry tells her brother that Hardiman is terrific. I think that in Trump’s mind, this consideration weighs not just once but twice.

So . . . there you have it.

At another time, I’ll actually analyze the finalists from a substantive standpoint, but this post is predictive, not prescriptive.

I’ll probably be proved wrong, and conventional wisdom right, namely that Gorsuch is the man. In which case this Corner post will put omelette makings on my face. Nonetheless, my prediction stands: Thomas Hardiman will be your nominee.

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