Amy Coney Barrett, Brett Kavanaugh and Raymond Kethledge

Any concerns about them?

quote:

Originally posted by Ackks:
Amy Coney Barrett, Brett Kavanaugh and Raymond Kethledge

Any concerns about them?

There are concerns about all of them if you read the pundit sites.

One is too Catholic, another is not Catholic enough, none of them have sworn on a high altar, “cross my heart and hope to die, never to overrule Roe v. Wade.”

The 2 K’s both clerked for Kennedy, so you know what that means. Amy clerked for Scalia.

I prefer Scalia.

Just for fun...I don't put a whole lot of stock in these 'insider' source stories...But, Amy Bennet Bennett's interview supposedly didn't go well and Rand Paul is threatening to Bork Kavanaugh.

https://hotair.com/archives/20...w-trump-went-poorly/

Report: Amy Coney Barrett’s SCOTUS Interview With Trump Went “Poorly”

I’m surprised. You’d think a devoutly Catholic woman academic and President Playboy would get along swimmingly.

This is but a breadcrumb of news, admittedly, but when we’re all starving for SCOTUS updates a morsel is a meal.

Meanwhile, the woman said to be in second place, Amy Coney Barrett, could face a divisive confirmation hearing in front of the Senate if Democrats choose to grill the devout Catholic about her stance on abortion. For Trump, that’s the crux of what makes her a star with his base. But it’s her résumé that isn’t particularly appealing. Barrett is an alumnus of Rhodes College and Notre Dame Law School; she lacks the Harvard and Yale degrees Trump has said he is looking for in a nominee.

In her interview with Trump, Barrett, who has only one year of experience on the bench, performed poorly, according to a second source familiar with the process.

I still can’t get over the fact that this guy seems to have his heart set on a Harvard or Yale alum. If anyone in politics should take a firm “F*** the Ivies” line in his personnel choices, it’s him, the most ostentatiously populist president since Andrew Jackson. An armchair psychologist would tell you that one of the things that makes populists populists is a desperate desire to join the elite and consequent hostility when they’re not allowed. That’s always been a theory for why Trump ran for president. Is the Harvard/Yale thing just another manifestation of that desire? Indulge the hostility, Mr. President.

But maybe not with Barrett. A figure as personality-focused as Trump will have a hard time nominating someone with whom he has no chemistry, notwithstanding the singular ability Barrett’s elevation might have to “own the libs.” (There’s always the Michigan grad Kethledge, though!) On the other hand, the one Yalie on Trump’s list may be unconfirmable. Here’s a tidbit from the Chicago Tribune published on Tuesday which I somehow missed at the time and which seems … important:

Trump has also been consulting with lawmakers — including Sen. Rand Paul, R-Ky., who has expressed reservations about Kavanaugh’s candidacy, according to a person familiar with the call.

Paul has told colleagues that he wouldn’t vote in favor of Kavanaugh if the judge is nominated, citing Kavanaugh’s role during the Bush administration on cases involving executive privilege and the disclosure of documents to Congress.

It’s already been reported that Paul is iffy on Kavanaugh. It has not otherwise been reported that he’s a flat no on Kavanaugh, which would mean the judge would need to flip at least one red-state Democrat to avoid being borked. Trump might believe that he can twist Manchin’s arm to get that one vote or that Paul, faced with a backlash if he cast the deciding vote against Kavanaugh, would cave in the end like he did with Mike Pompeo’s nomination at State. But *any* threat by a Republican senator at this stage to vote no on a nominee, however soft and unconvincing, might be enough to convince the White House to look elsewhere rather than risk a fiasco. If you’ve got Paul leaning no on Kavanaugh, why not exclude him and look to Barrett or Kethledge instead?

Besides, it’s not like Trump is completely sold on him. Kavanaugh’s champion in the process is reportedly White House counsel Don McGahn, befitting the judge’s image as the favorite choice of the Republican establishment. “A lot of social conservatives have coalesced around Amy,” said Jonathan Adler to the NYT this week of Barrett. “The business folks and the D.C. folks tend to pull for Brett a little more.” Not only was Kavanaugh appointed to the D.C. Circuit by George W. Bush, he ended up marrying Dubya’s personal secretary. That Bush pedigree appeals to the “D.C. folks” but doesn’t appeal to Trump. This tweet summarizes the skepticism about him well, I think:


Erick Erickson
✔
@EWErickson
The thing that concerns me the most about Brett Kavanaugh is that all the people who said John Roberts would be a rockstar for the right say the same about Kavanaugh.

1:51 PM - Jul 5, 2018
600
242 people are talking about this
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Right, Roberts and Kavanaugh are very much products of the same legal-political culture. Doesn’t mean they’d vote the same way on everything, and it doesn’t mean Roberts is some sort of Souteresque disaster. The ObamaCare vote will always be held against him but he’s with the conservative majority on the Court far more often than not. But you’re getting a more “familiar” legal product with Kavanaugh than you are with Barrett or Kethledge.

Ann Coulter likes him a lot, though, and some of the social conservative invective aimed at him this week is obviously a product of simple favoritism on behalf of Barrett. There’s no reason to think Kavanaugh “will be another Harriet Miers,” as one activist recently told the Daily Caller. There’s really no surefire reason to think Barrett would be a safer vote to overturn Roe than Kavanaugh would. The appeal of Barrett seems to lie more in who she is than certainty about how she’ll vote. Some social conservatives want the most devoutly Christian nominee available confirmed in order to signal that Christian devotion is no barrier to success in public life, never mind that three of the four conservatives currently on the Court are Catholic (maybe all four, although Gorsuch’s status is murky), Kavanaugh is Catholic, Kennedy is Catholic, and Scalia of course was devoutly Catholic. As of early 2016, six of the nine seats were occupied by Catholics — don’t forget Sotomayor — with zero Protestants on the bench despite the fact that Catholics comprise less than a quarter of the population. The principle that Catholics are unfit for public service, particularly on the Supreme Court, seems to be reasonably well debunked, or at least it was until Dianne Feinstein opened her yapper at Barrett’s confirmation hearing last year. If Democrats end up with her as nominee, they should thank Feinstein for turning her instantly into a star.

You aren’t going to get Feinstein’s vote no matter what, so there is no pont in worrying about it.

Gorsuch was raised Catholic, but married a British woman, Church of England, and they attend Episcopal services here.

There is an article I postedearlier today that Kettledge is Gorsuch 2.0.

Judge Kavanaugh’s Record on Second Amendment/Gun Rights

Natinal Review Bench Memo
Ed Whelan

In follow-on litigation to the Supreme Court’s landmark ruling on the Second Amendment in D.C. v. Heller, a D.C. Circuit panel majority, consisting of two Republican appointees, upheld the District of Columbia’s ban on possession of most semi-automatic rifles and its registration requirement for all guns in D.C. Judge Kavanaugh dissented (in Heller v. D.C. (2011)). An excerpt from his dissent:

In Heller, the Supreme Court held that handguns – the vast majority of which today are semi-automatic – are constitutionally protected because they have not traditionally been banned and are in common use by law-abiding citizens. There is no meaningful or persuasive constitutional distinction between semi-automatic handguns and semiautomatic rifles. Semi-automatic rifles, like semi-automatic handguns, have not traditionally been banned and are in common use by law-abiding citizens for self-defense in the home, hunting, and other lawful uses. Moreover, semiautomatic handguns are used in connection with violent crimes far more than semi-automatic rifles are. It follows from Heller’s protection of semi-automatic handguns that semi-automatic rifles are also constitutionally protected and that D.C.’s ban on them is unconstitutional. (By contrast, fully automatic weapons, also known as machine guns, have traditionally been banned and may continue to be banned after Heller.)

D.C.’s registration requirement, which is significantly more stringent than any other federal or state gun law in the United States, is likewise unconstitutional. Heller and later McDonald said that regulations on the sale, possession, or use of guns are permissible if they are within the class of traditional, “longstanding” gun regulations in the United States. Registration of all lawfully possessed guns – as distinct from licensing of gun owners or mandatory recordkeeping by gun sellers – has not traditionally been required in the United States and even today remains highly unusual. Under Heller’s history- and tradition-based test, D.C.’s registration requirement is therefore unconstitutional.

Link

quote:

Originally posted by JALLEN:
You aren’t going to get Feinstein’s vote no matter what, so there is no pont in worrying about it.

Gorsuch was raised Catholic, but married a British woman, Church of England, and they attend Episcopal services here.

There is an article I postedearlier today that Kettledge is Gorsuch 2.0.

So do you agree that RK=NG2?

Is he strong on 2A?

quote:

Originally posted by Fenris:

quote:

Originally posted by JALLEN:
You aren’t going to get Feinstein’s vote no matter what, so there is no pont in worrying about it.

Gorsuch was raised Catholic, but married a British woman, Church of England, and they attend Episcopal services here.

There is an article I postedearlier today that Kettledge is Gorsuch 2.0.

So do you agree that RK=NG2?

Is he strong on 2A?

I suggest reading the article which I posted earlier today, at 2:19 central.

I don’t know either one, of course. Trump is so much better at these things than I am, I think I will be happy to support his choice.

The thing about judging is that if you have heard 300 cases, you can be sure there are 300 happy parties, who think you are wise and just, and about the same number unhappy who think you are a malicious, probably corrupt fool.

LexPredict is still predicting Barrett, by a wide margin:



The above might've been before the HotAir and Townhall articles were posted, though.

More tea leaf reading, for what it's worth:

Signs Point To Kavanaugh As The Pick

The usual caveat, that a loose-cannon president might do anything at any given moment, applies. But various news stories today point to the choice as being essentially a two-person race with Kavanaugh seemingly having the inside track. The strongest evidence comes from CNBC, which has sources claiming that Trump was hinting about him this week:

During the July 4 picnic at the White House, Trump suggested to friends and some external advisors that he had already made up his mind about whom he will pick to join the high court, the person said on the condition of anonymity due to the sensitive nature of the ongoing deliberations.

That source, along with another person familiar with the negotiations, said the president gave strong indications that he prefers D.C. Circuit Court of Appeals Judge Brett Kavanaugh.

WaPo has two sources claiming that the short list is down to Kavanaugh and Kethledge. NPR has two sources claiming it’s down to Kavanaugh and Barrett. Kavanaugh also has an advocate in White House counsel Don McGahn, who’s leading the selection process, and seems to be the target of all the oppo being pushed by fans of the competition, underscoring his frontrunner status.

The chief selling point for Kavanaugh is that, of the three finalists, he’s the most known quantity. It’s not just that he’s been on the bench for 10 years and has written hundreds of opinions. So has Kethledge. It’s that he’s been a big name in conservative legal circles since practically the day he graduated law school. Washington conservatives know him and prefer him. He won’t be a Souter. The worst-case scenario for him, realistically, is that he ends up in sync with John Roberts although I think he’d be considerably to the right of that. Sean Trende sees him positioning himself on the Court as the intellectual leader of the conservative bloc, which is plausible: Having been marked for greatness by official Washington since his 20s, he’s not going to get to the high bench and coast. Trende:

Judge Kavanaugh, however, could fill [the Scalia] role. His conservative credentials are nearly impeccable, and those concerned about his dissent in the Obamacare cases should remember Scalia joining Brennan’s opinion striking down flag-burning statutes. Additionally, he is, quite simply, one of the most brilliant individuals I have ever encountered. He is also a truly gifted writer. At Kirkland, we were instructed to make our briefs “sing”; his first drafts were legendary for already being full operas, and that was before he turned to the task of rewriting them dozens of times. Kavanaugh would arrive to the court well-respected by the other justices, as most of them have hired his clerks (which is unusual in this day and age). I suspect that in two decades, constitutional law nerds would speak of the Kagan-Kavanaugh clashes with the same reverence my generation holds for the Brennan-Scalia battles.

Kethledge is also a known quantity after a decade on the bench and also has little Souter risk. Hugh Hewitt thinks he’d be Gorsuch 2.0, which is highly appealing, but he’s not as familiar to the movement-conservative legal ecosystem as Kavanaugh is. With Kavanaugh there’ll be no surprises; with Kethledge, who knows? As for Barrett, she’s been a judge for less than a year and practically everything written about her this week has had to do with Roe and abortion. She clerked for Scalia and thus a Souter scenario is unlikely in the extreme, but she’s more of a black box legally than the other two finalists. And she’s 46! If Trump wins a second term, he could return to her in five years, after she’s piled up some jurisprudence, and she’d still be a youngish pick for the Court. Kavanaugh, meanwhile, is 53. For him it may be now or never.

Another sign that he’s the favorite:


Erick Erickson
✔
@EWErickson
Given the overwhelming reaction to this tweet from people in and out of the White House, I conclude both that Kavanaugh is far better than I presumed and he is on the very short list. https://twitter.com/ewerickson...929742934564865?s=21 …

Erick Erickson
✔
@EWErickson
The thing that concerns me the most about Brett Kavanaugh is that all the people who said John Roberts would be a rockstar for the right say the same about Kavanaugh.

8:07 PM - Jul 5, 2018

Maybe that’s just further evidence of Kavanaugh having many friends in official Washington eager to ride to his defense, but it could also be that people in the know are aware that he’s the pick and want to get ahead of shaping opinion about him before Monday. No sense having media figures with an audience like Erickson souring righties on Kavanaugh now when they’ll be married to him within 72 hours.

One line from the CNBC piece quoted above gives me pause: “Trump and Pence believe Kavanaugh is considered the safest choice to reel in undecided senators, given his mixed opinions on a wide range of issues, including President Barack Obama’s Affordable Care Act and Roe v. Wade, the sources said.” That seems … not correct. Kethledge is the most confirmable nominee. If anything, Kavanaugh might — might — be unconfirmable, since he has knocks against him from both sides. As noted yesterday, Ted Cruz reportedly discouraged the White House from picking him, fearing he’d be unreliable on the Court. Ken Cuccinelli, another movement conservative well known in righty legal circles, told WaPo of Kavanaugh, “He looks, walks and quacks like John G. Roberts Jr. The Bush lives loudly in Kavanaugh.” More importantly, Rand Paul has allegedly told colleagues that he won’t vote for Kavanaugh as nominee, which, if true, could doom his candidacy. I think all Republicans will line up for him in the end but he’s not a sure thing on that point like Kethledge.

As for Democrats, there are all sorts of things they might object to — his work for Ken Starr, his service in the Bush White House, various conservative rulings on the bench. And Politico makes a good point about how a Kavanaugh confirmation hearing might play for Trump. Does POTUS really want to see it turn into a referendum on impeachment?

White House advisers are concerned that, as a lead author of the Starr Report, Kavanaugh would provide an opening for Democrats to try to back him into a corner with arguments he wielded against former President Bill Clinton that could at some point apply to Trump…

While the parallels are open to debate, they seem close enough to give Democrats fodder to divert at least a portion of a potential Kavanaugh confirmation hearing to a discussion of Trump’s alleged misdeeds. There could be documents for Democrats to dig into as well. A National Archives listing of Starr’s files shows at least eight boxes of records belonging to Kavanaugh, as well as a smattering of his memos in the files of other lawyers on the team.

It’s one thing for Trump to endure a circus at his own expense knowing that the payoff will be seeing his nominee confirmed, it’s another to endure it fearing that he might get borked in the end. Why gamble on that and have to stomach the grumbling from the Cruzes and Cuccinellis of the grassroots right if Kavanaugh gets through when you could nominate Kethledge and have a relatively — relatively — smooth process? Makes me wonder where Kavanaugh would be in the power rankings if he didn’t have McGahn and other Federalist Society types whispering in the president’s ear on his behalf. He’s the high-risk, high-upside choice whereas Kethledge is the lower-risk, high-but-maybe-not-as-high-upside (but maybe as-high!) choice. How lucky do you feel?

I'm hoping that Trump will two more picks. So maybe we'll have Kavenaugh, Kethledge, and Barrett.

quote:

How lucky do you feel?

When the vote is taken, you can be certain that the Schumers and Feinstein crowd aren’t going to vote for a nominee, no matter who it is. The GDCs up for election in Trump states will have to chose.

OTOH, I doubt that when the clerk calls the roll, Paul, Cruz, et all will stare into the abyss of history and vote “no.” That would likely be Senatorial suicide for Cruz, in a race now that is tougher than it needs to be.

If those votes caused the nominee to fail, and we ended up dragging the replacement past the election, there should be hell to pay. None of those no’s would ever get their phone calls to the White House returned, even if they are still there to make them.

Funny thing is Trump loves playing games, so much so that the alternate pick for Gorsuch left his house to drive to Washington even though he wasn’t the pick.

So I don’t take any of this as more then random smokescreen signals with everyone trying to read them from afar.

Fox News is reporting that Judge Thomas Hardman has become the 4th of the Top Three.

Hardimann is on the 3rd Circuit Court of Appeals, where Trump’s sister is a senior judge. He reputedly was second to Gorsuch in the last nomination effort.

Here is the SCOTUSblog run down on Hardiman:

When President Donald Trump was searching for a nominee in 2017 to fill the vacancy created by the 2016 death of Antonin Scalia, he reportedly narrowed the field to two candidates: then-Judge Neil Gorsuch, of the U.S. Court of Appeals for the 10th Circuit, and Judge Thomas Hardiman of the U.S. Court of Appeals for the 3rd Circuit. On January 31, 2017, Trump nominated Gorsuch, and the rest is history. But with Justice Anthony Kennedy’s announcement last week that he would step down from the Supreme Court bench, Hardiman’s name has resurfaced as a potential nominee. The 52-year-old Hardiman (who will turn 53 on July 8, the day before Trump is expected to announce his new nominee) has a solidly conservative background and a champion in the president’s sister, Maryanne Trump Barry, who served with Hardiman on the 3rd Circuit and has been described as “high on Hardiman.”

In some ways, Hardiman has more in common with Justice Sonia Sotomayor than with Justice Anthony Kennedy, whom he would replace: The Massachusetts-born Hardiman became the first person in his family to go to college when he went to the University of Notre Dame, and he financed his law degree at the Georgetown University Law Center by driving a taxi. (If nominated and confirmed, Hardiman would also bring educational diversity to a court on which all of the other justices attended Ivy League law schools.)


After his law school graduation, Hardiman worked for two years in the Washington office of Skadden Arps before moving to Pittsburgh, where he practiced law until 2003. At the age of 37, Hardiman became a federal district judge; he was unanimously confirmed to the 3rd Circuit in 2007, at the age of 41. Taking the bench at a young age is yet another similarity with Sotomayor, who also became a district judge at the age of 37 and who took her seat on the U.S. Court of Appeals for the 2nd Circuit at the age of 44. But the comparisons with Sotomayor largely end there. Hardiman is a solid, although hardly knee-jerk, conservative who was active in Republican politics before joining the federal bench, and his jurisprudence as a Supreme Court justice likely would be closer to another justice who hails from the 3rd Circuit: Justice Samuel Alito.

During his 11 years as a federal appeals court judge, Hardiman has weighed in on a variety of hot-button topics important to Republicans, and his votes in these cases have consistently been conservative. For example, the gun-rights cases in which Hardiman has participated reflect an originalist approach to the Second Amendment right to bear arms. Although he rejected a Second Amendment challenge to the general constitutionality of the federal law barring felons from possessing firearms, in 2016 he concurred in a pair of challenges to the law by two men who had been convicted of corruption of a minor and carrying a handgun without a license, respectively. Hardiman agreed with the would-be gun owners that, at least as applied to them, the federal law violates the Constitution. He explained that “the threshold question in a Second Amendment challenge is one of scope: whether the Second Amendment protects the person, the weapon, or the activity in the first place. This,” he continued, “requires an inquiry into ‘text and history.’” Based on that inquiry, he concluded that “the most cogent principle that can be drawn from traditional limitations on the right to keep and bear arms is that dangerous persons likely to use firearms for illicit purposes were not understood to be protected by the Second Amendment” – a category into which the individuals in this case, in his view, did not fall. Relying on this principle, Hardiman also joined an unpublished and unsigned opinion rejecting a Second Amendment challenge to the federal and state bars on gun ownership by an inmate released from prison after serving time for armed robbery.

Hardiman’s opinion in Drake v. Filko is a strong statement of his commitment to a more expansive view of the Second Amendment. The case was a challenge to a New Jersey law regulating the issuance of permits to carry handguns in public. Among other things, the gun owner seeking a permit is required to show that he has a “justifiable need” to carry the gun. The panel ruled in favor of the state, but Hardiman dissented from that ruling. He emphasized that the Supreme Court’s decisions in District of Columbia v. Heller and McDonald v. City of Chicago both “indicate that the Second Amendment extends beyond the home,” and that – at least in his view – the law violates the Second Amendment. After considering the case at three different conferences, the Supreme Court declined to review the case on the merits, as it did with several other cases presenting the same question.

On the death penalty, Hardiman has generally – but not always – voted in favor of the state and against the inmate. Many of the death penalty cases in which he has participated involve applications of the Antiterrorism and Effective Death Penalty Act, a 1996 federal law that imposes both procedural and substantive limitations on an inmate’s ability to obtain habeas corpus relief from his conviction. In particular, Hardiman has emphasized that AEDPA imposes a high bar that inmates will rarely be able to overcome. Thus, in one case he dissented from the en banc court’s decision on a death-row inmate’s claims that the prosecution did not comply with its duty to disclose exculpatory evidence. Even if there are “gaps or errors” in a state court’s reasoning, he stressed, federal courts should still uphold it on habeas review unless the decision itself is unreasonable.

In another death penalty case, Hardiman first joined a decision in favor of the inmate, but that decision was vacated by the Supreme Court. On remand, the panel ruled for the inmate again, in a decision authored (like the original opinion) by Judge Maryanne Trump Barry. Hardiman dissented from the ruling on remand, explaining that the inmate could not “surmount AEDPA’s formidable bar to habeas relief. “Although I agree with my colleagues that the best reading of the” police report in the case on which the inmate relied “is that it is not ambiguous or speculative,” he acknowledged, “I cannot say that the state court’s ruling was unreasonable under the highly deferential AEDPA standard.”

Hardiman also joined an opinion that upheld Delaware’s lethal-injection protocol. However, the decision was hardly a ringing endorsement of Delaware’s practices: The panel also cautioned that its ruling “should in no way be construed as license for Delaware to stay the worrisome course it appears to have taken at times under its former protocol.” And it added that the “record before us reflects an occasional blitheness on Delaware’s part that, while perhaps not unconstitutional, gives us great pause.”

In March 2018, Hardiman wrote for a three-judge panel in denying a Pennsylvania inmate’s argument that his life sentence in state court should be thrown out because his lawyer had been constitutionally inadequate. The inmate, Andy Rivera Rodriguez, contended that his lawyer should not have agreed to waive his right to a jury trial because Rivera Rodriguez was intellectually disabled, with an IQ of 58, and therefore could not have been sentenced to death. The court of appeals rejected that argument, explaining that there was no “bright-line rule for determining” whether a defendant is intellectually disabled, and so it would not have been clear to Rivera Rodriguez’s attorney that he was ineligible for the death penalty based just on his IQ.

Hardiman has not weighed in directly on issues relating to abortion. In United States v. Marcavage, though, he joined an opinion vacating the conviction of an anti-abortion protester who was arrested for refusing to move away from the sidewalk in front of the Liberty Bell Center in Philadelphia. The court agreed with the protester that the sidewalk is a public forum, subjecting the government’s efforts to restrict his speech to a more exacting standard of review. The panel declined to defer to the trial-court’s finding that the content of Marcavage’s message played no role in his removal from the sidewalk.

Hardiman was less sympathetic to other free speech claims. In Easton Area School District v. B.H., he dissented from a ruling in favor of students who wanted to be able to wear silicone bracelets with the slogan “I [Heart] Boobies” as part of a breast-cancer awareness campaign. Hardiman argued that the decision was “inconsistent with the Supreme Court’s First Amendment jurisprudence.” Describing the case as a “close” one, he contended that the bracelets “would seem to fall into a gray area between speech that is plainly lewd and merely indecorous.” But he deemed it “objectively reasonable to interpret the bracelets, in the middle school context, as inappropriate sexual innuendo and double entendre.” A contrary ruling, he cautioned, would require schools “to permit more egregiously sexual advocacy messages.” The Supreme Court denied the school district’s petition for review without comment, indicating that there were not four votes to review the case on the merits, but not necessarily endorsing the decision of the lower court.

And in NAACP v. City of Philadelphia, Hardiman dissented from a panel opinion holding that the city’s ban on noncommercial advertisements by private advertisers at the city’s airport violated the First Amendment. Hardiman characterized the ban as “a reasonable attempt to avoid controversy at the airport” and thereby “create a comfortable environment” there.

Hardiman’s lone campaign-finance opinion suggests that he would vote to relax restrictions on campaign donations, although in the specific case before the 3rd Circuit his views worked for the benefit of police unions. He wrote for the court in striking down a provision in Philadelphia’s charter that barred police officers from making contributions to their union’s political action committee. He acknowledged the city’s “historic struggles with police and political corruption,” but he concluded that the city had not shown how the ban “serves in a direct and material way to address these harms.” He seemed to find particularly troubling the city’s claim that “the ban is part and parcel of a larger scheme that insulates police officers from all politics, while simultaneously condoning political activities by the police that have similar, if not more pernicious, implications.”

Many of the religion cases in which Hardiman has been involved have been lawsuits filed by inmates who contend that their ability to exercise their religion has been restricted by prison officials. In those cases, Hardiman generally ruled in favor of the prison officials, but in other cases he has written opinions supporting a student’s ability to express religious beliefs in the public schools. Thus, he dissented from the panel’s ruling in favor of a school district and against a mother and her son, both of whom described themselves as evangelical Christians, who were barred from reading from the Bible during a kindergarten “show and tell” activity. Hardiman suggested that “the school went too far in this case in limiting participation in ‘All About Me’ week to nonreligious perspectives,” which “plainly constituted” discrimination based on the family’s viewpoint. And Hardiman questioned the 3rd Circuit’s test for reviewing the propriety of student speech in elementary school, criticizing the factors used in that test as “highly manipulable.” “The majority’s desire to protect young children from potentially influential speech in the classroom is understandable,” he concluded, but that desire, “however admirable, does not allow the government to offer a student and his parents the opportunity to express something about themselves, except what is most important to them.” And in another case, he joined a decision against a school district and in favor of a child who was barred from distributing at school invitations to a Christmas party to be held at her church.

In April 2018, Hardiman was part of a three-judge panel that ruled in favor of the Little Sisters of the Poor in their effort to intervene in litigation challenging regulations issued under the Affordable Care Act. The act contains what is sometimes called the “birth control mandate,” which requires employers to provide their female employees with health insurance that includes access to certain forms of birth control. In 2013, the Obama administration issued regulations to accommodate religious nonprofits, like the Little Sisters, that objected to the mandate for religious reasons, but the Little Sisters challenged the accommodation, arguing that it too would entangle them in efforts to provide birth control. In 2016, the Supreme Court heard oral argument in a group of cases on this question, but (after Scalia’s death) sent the cases back to the lower courts with instructions for the parties to try to work out a deal that would both respect the nonprofits’ religious beliefs and ensure that the women involved still have access to birth control.

In 2017, in response to an order from the president, the Department of Health and Human Services issued interim rules that created both a “religious exemption” and a “moral exemption,” but Pennsylvania challenged the rules, and the Little Sisters sought to enter the case. A federal district court rejected the group’s request, but on appeal Hardiman was part of the three-judge panel that reversed. In his opinion for the panel, Hardiman reasoned that the Little Sisters had a “concrete” interest in ensuring that the religious exemption survives because the commonwealth’s lawsuit could erase the protection that they enjoy under the interim rules.

In other cases, Hardiman has been harder to pigeonhole. He wrote for the court in allowing a gender-stereotyping claim by a gay man who described himself as “effeminate” to go forward, reversing the district court’s grant of summary judgment in favor of the company where the man worked, and which ultimately fired him. 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 agreed with the company that “every case of sexual orientation discrimination cannot translate into a triable case of gender stereotyping discrimination.” But at the same time, he observed, the company “cannot persuasively argue that because Prowel is homosexual, he is precluded from bringing a gender stereotyping claim.”

Hardiman’s opinion for the court in a challenge to a fire-department’s residency requirement similarly reaches a more liberal result. The court affirmed the district court’s ruling that the residency requirement had a disparate impact on African-American firefighters, rejecting the argument that the fire department “will be forced to open to hiring to non-residents while other municipalities exclude” its own residents. Hardiman explained that “we have no authority to endorse discrimination against firefighter candidates who do not live in North Hudson in order to protect those who do.”

And in MacDonald v. Cashcall, Hardiman joined an opinion in favor of a New Jersey man who took out a five-year, $5000 loan with a 116% interest rate, resulting in a finance charge of over $35,000. The court of appeals upheld the district court’s decision rejecting the lender’s motion to require the man to take his case to arbitration conducted by the Cheyenne River Sioux Tribal Nation. The panel reasoned that the arbitration mechanism specified does not exist, which means that there was no forum in which an arbitrator could determine whether the arbitration agreement must be enforced.

In immigration cases, Hardiman has generally affirmed – in fairly unremarkable unpublished opinions – decisions going against noncitizens. In a published case, Cazun v. Attorney General, Hardiman concurred in a ruling against a Guatemalan woman who was deported but then tried to return to the United States and claim asylum after she was threatened, tortured and sexually assaulted by the head of a major drug-trafficking gang. The asylum officer agreed that the woman was credible, but concluded that she was ineligible for asylum because the Board of Immigration Appeals had interpreted the Immigration and Nationality Act to bar asylum for a noncitizen who was previously removed from the United States and has had a removal order reinstated. (The woman was, however, eligible for other, less desirable forms of relief, which (unlike asylum) would not give her a potential path to U.S. citizenship or prevent her from being sent to a country other than Guatemala.) The majority concluded that it should defer to the BIA’s interpretation of the INA, but Hardiman wrote separately to emphasize that the INA was not “silent or ambiguous” on the question, a key criterion for agency deference; instead, he would “enforce the statute as written rather than defer to the agency’s interpretation.”

But Hardiman has not hesitated to vacate decisions by the Board of Immigration Appeals when he believes that the board has erred. In Valdiviezo-Galdamez v. Attorney General, for example, Hardiman was part of a panel that ruled in favor of an asylum applicant, who alleged that he had come to the United States to avoid being involuntarily recruited into a violent gang in his home country of Honduras. The case centered on whether the applicant was being persecuted because of his “membership in a particular social group” within the meaning of federal immigration laws. The panel sent the case back to the BIA, reasoning that two requirements – “social visibility” and “particularity” – imposed by the BIA on asylum-seekers were inconsistent with the board’s earlier decisions. Hardiman concurred in the judgment for the asylum-seeker. He would have held that the BIA can interpret the term “particular social group” “to include whatever requirements it sees fit.” But, he cautioned, the BIA must also acknowledge that the requirements are a departure from its previous position and explain why it is making the change. Here, he observed, “[a]nnouncing a new interpretation while at the same time reaffirming seemingly irreconcilable precedents suggests that the BIA does not recognize or is not being forthright about, the nature of the change its new interpretation effectuates. It also unfairly forces asylum applicants to shoot at a moving target.” And in Di Li Li v. Attorney General, Hardiman joined an opinion that remanded the case to the BIA for reconsideration of a motion to reopen based on changed circumstances when the asylum applicant had become Christian and the BIA had not addressed his argument “as to how conditions have worsened over time” for Christians in China.

Several of the decisions in which Hardiman has participated have made their way to the Supreme Court on the merits. In Florence v. Board of Chosen Freeholders, Hardiman wrote for a divided panel in a challenge to a New Jersey jail’s policy of strip-searching arrestees before they join the facility’s general population. The majority reversed the district court’s ruling in favor of the arrestee. Hardiman concluded that, “balancing the Jails’ security interests at the time of intake before arrestees enter the general population against the privacy interests of the inmates,” the strip-search procedures are “reasonable.” By a vote of 5-4, the Supreme Court affirmed that ruling.

Hardiman also joined another high-profile decision that was ultimately affirmed by the Supreme Court: an en banc ruling striking down a federal law that criminalized depictions of animal cruelty in videos. The challenge to the law came from a Virginia man convicted of making and selling dog-fighting videos; he argued that the law violated the First Amendment, and both the 3rd Circuit and the Supreme Court (the latter by a vote of 8-1) agreed.

In June 2017, the justices unanimously reversed a decision in which Hardiman had participated, in a trio of cases involving the interpretation of the Employee Retirement Income Security Act of 1974, which generally applies to employers that offer pensions and other benefits to their employees, but does not apply to church plans. The question before the Supreme Court was whether that exemption applies to pension plans maintained by employers – such as nonprofit religious hospitals, schools, and homes for the elderly – that are affiliated with a church, or whether the exemption instead applies only to plans that were originally established by a church. Hardiman was part of a 3rd Circuit panel that ruled that “only a church can establish a plan that qualifies for an exemption” under ERISA, but the Supreme Court disagreed. In an opinion by Justice Elena Kagan, the justices concluded that the exemption also extends to church-affiliated plans, even if they were not established by the church.

Hardiman’s wife Lori, with whom he has three children, is from a well-connected Democratic family in Pennsylvania, but Hardiman registered to vote as a Republican in 1994. Hardiman has headed the local Big Brothers Big Sisters program, and he has also served as a “Big Brother” himself. A 2003 article in the Pittsburgh City Paper raised questions about Hardiman’s role in defending a challenge to a Ten Commandments plaque on public property, as well as his role in opposing housing discrimination cases. Hardiman is a fluent Spanish speaker who studied in Mexico; while living in Washington he worked with Ayuda, a legal aid clinic representing poor Spanish-speaking immigrants, on (among others) domestic violence and political asylum cases. During his Senate confirmation hearings, he described one of his immigration cases for Ayuda as “one of the most important cases I have ever handled.”

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quote:

Originally posted by JALLEN:
Fox News is reporting that Judge Thomas Hartiman has become the 4th of the Top Three.

Hartimann is on the 3rd Circuit Court of Appeals, where Trump’s sister is a senior judge. He reputedly was second to Gorsuch in the last nomnation effort.

Yeah, Trump's sister is reportedly high on him.

Personally, I think I'm liking Kethledge best. The idea of a "Scalia, v3" is appealing.

I don't have a clue who the POTUS will pick. I'm pretty sure I'll like whoever it is. He's one for one so far.

I'd like to know who is the best writer--most cogent, wittiest, most convincing, most clear.
JAllen, what say you, having read all these articles and being a not so bad writer yourself?

quote:

Originally posted by sjtill:
I'd like to know who is the best writer--most cogent, wittiest, most convincing, most clear.
JAllen, what say you, having read all these articles and being a not so bad writer yourself?

Thanks for the compliment. Doc. For a long time, I thought it would be terrific to have a regular column, witty, wise, sophisticated, you know, like a combination of Art Buchwald, George Will and Dave Barry. Alas, it isn’t as easy as those guys make it look.

There are two aspects to it. First, is it writers you most often agree with? Or second, is it guys you don’t always agree with but they are master wordsmiths?

I always looked with anticipation for columns by Dr. Thomas Sowell, now lamentably retired. Same with Dr. Walter E. Williams. Both men have a knack for explaining their subjects in an easy to understand way, pretty high praise for economists!

I don’t always agree with his writings, but have long admired George Will as a superb wordsmith. I don’t mind polysyllabic words, of course.

The Gold Standard here is of course Winston Churchill, who is far and away the greatest writer in the English language I know of.

Thanks to the world wide web, we can be exposed to a great many more writers than ever before.

One I am being drawn to is Mollie Hemingway on Federalist. She is sometimes seen on Fox News, on panels, and comes across as clear thinking and plain spoken. I’ve posted several of her columns in recent months.

I think he meant best writer of the possible SCOTUS nominees?

I've read Kethledge and Kavanaugh are supposed to be pretty good in that respect.

quote:

Originally posted by sjtill:
I'd like to know who is the best writer--most cogent, wittiest, most convincing, most clear.
JAllen, what say you, having read all these articles and being a not so bad writer yourself?

Just want to say that I rely on JALLEN to cull all the good opinion pieces and post them here. I tend to skim the news a lot due to time constraints and while I will read the occasional column, I've come to rely on JALLEN to pick the good ones to spend my time reading.