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Ever since Justice Anthony Kennedy, the Supreme Court’s swing voter, announced his retirement, conservatives have rightly declared filling this vacancy as the most crucial decision of Donald Trump’s presidency. With freshly appointed Justice Neil M. Gorsuch already providing the key vote in major conservative rulings upholding the Trump travel ban and against compulsory labor union dues, Republicans are keenly waiting on Trump to deliver another proven conservative to the bench—especially with the liberal Justices Ginsberg and Breyer in the swansongs of their legal careers. Now, conservatives and the president have a golden opportunity to enshrine and protect key constitutional rights for a generation.
There’s one problem, though—historically, at least. Conservatives have consistently chosen their justices poorly over the last 40 years. While Democratic presidents have batted a perfect 1.000 in appointing blue-and-through liberal justices to the court, Republican presidents kept appointing justices who could not live up to their conservative reputations. From the appointment of Justice Kennedy under Reagan, Justice Souter under George H.W. Bush, to even Chief Justice John Roberts under George W. Bush, all previous three Republican presidents have all nominated justices who have failed to live up to their textualist pedigrees. Thus, the pressure is on President Trump to avoid his predecessors’ mistakes and ensure a true textualist majority on the court; to do so, the president should look no further than Thomas Hardiman.Photo: Cliff Owen/Associated Press
Hardiman, 53, not only has the experience to serve on the highest court in the land but has a wide appeal and proven textualist record to get confirmation in the Senate even in the face of a razor-thin Republican majority. Hardiman currently sits on the Third Circuit Court of Appeals, to which he was appointed by Bush in 2007, and has delivered consistent, textualist rulings for over a decade.
The First Amendment remains a key issue for the court and for the future of the country, as evident in the countless and endless First Amendment violations on college campuses and nationwide. Hardiman routinely has ruled against restrictions on free speech, most notably in reversing in 2014 a local ban that barred police officers from donating to their union’s political action committee in Lodge No. 5 of Fraternal Order of Police v. City of Philadelphia.
Hardiman has an equally impressive record of defending the Second Amendment and religious freedom. In Drake v. Filko, Hardiman wrote the dissenting opinion, stating that New Jersey’s requirement for a citizen to show a “justifiable need” to legally carry a handgun in the state was unconstitutional. Hardiman also passes the conservative litmus test on religious liberty, having written another dissenting opinion siding in Busch v. Marple Newton School District with evangelical Christian parents whose children wanted to read Bible verses in show and tell.
As one reviews Hardiman’s record, it is clear that on all fronts Hardiman is a true conservative textualist who will defend American’s constitutional rights.
However, unlike outspoken social conservative Amy Coney Barrett and former Bush White House lawyer Brett Kavanaugh, Hardiman and fellow Appellate Court Judge Raymond Kethledge will have crossover appeal to Democrats. Kethledge, though, has a weaker textualist record and might turn into a moderate justice once the bench like Souter or Kennedy did.
With the Democratic caucus surely preparing for an all-out assault, it is unlikely that any Trump Supreme Court nominee is going to receive 60 votes. Having said that, crossover appeal is essential to public opinion of the president, especially while heading into a pivotal midterm election season. With Republican Senators, Collins-ME and Murkowski-AK having publicly expressed their concerns with confirming any nominee who is open to repeal Roe v. Wade, losing their votes by nominating Barrett or Kavanaugh would be a disaster. A Hardiman nomination is a safe enough bet to ensure confirmation under the “nuclear” option—confirmation by a simple majority rather than the 60-vote threshold—that still allows for the possibility of a Roe repeal sometime in the future.
The stakes could not be higher. For the first time this century, conservatives have the chance to have true textualist control of the court. Failing to confirm a textualist would obliterate the Trump administration’s conservative credibility, while appointing a moderate would put crucial constitutional rights at risk. Plain and simple, the president must ensure that a textualist is confirmed to the court, and Thomas Hardiman is the only one with the pedigree and appeal to be the man.