×

Why some conservatives fear Donald Trump is about to betray them on the Supreme Court

When Donald Trump names his nominee for the Supreme Court on Tuesday night, judicial conservatives will evaluate his choice according to one simple rule: No Souters.

The 1990 Supreme Court appointment of David Souter is remembered by conservatives as a massive missed opportunity. William Brennan, who despite being picked by Dwight Eisenhower was perhaps the single most liberal justice in the history of the Supreme Court, was retiring, and George H.W. Bush had an opportunity to replace him with a reliable conservative. Conservatives had been burned by the Senate's rejection of ardent originalist Robert Bork when Ronald Reagan had nominated him three years earlier, and didn't want a squish like Anthony Kennedy (who wound up getting the seat intended for Bork as a compromise pick), or another Republican-appointed liberal like John Paul Stevens or Harry Blackmun.

Souter lacked Bork's long paper trail on hot-button issues, but he came highly recommended by Republican politicians from his home state of New Hampshire, such as former governor turned White House Chief of Staff John H. Sununu and Sen. Warren Rudman. The NAACP and National Organization for Women strongly opposed Souter's nomination, arguing that he had been excessively critical of affirmative action in the past and evasive about his views on Roe v. Wade, and while he ultimately won confirmation pretty easily, a number of liberal senators like Bill Bradley, Ted Kennedy, John Kerry, and Barbara Mikulski voted against him.

More from Vox:
Trump will keep Obama's executive protections for LGBTQworkers. But there's a big catch.
Cancel the Oscars
After meeting with pharma lobbyists, Trump drops promise to negotiate drug prices

Then, two years into his tenure, in a case that was widely expected to lead to Roe v. Wade's reversal, Souter voted to save it, albeit in diminished form. Over the course of the next few years, Souter evolved into a reliable liberal, forming a bloc with Stevens and Clinton appointees Ruth Bader Ginsburg and Stephen Breyer.

For conservatives, and in particular pro-lifers, it was a stunning betrayal, one that hardened their conviction to only appoint solid conservatives with track records to prove it from thereon out. The Souter fear was crucial in sparking a backlash to Harriet Miers, George W. Bush's 2005 nominee to replace Sandra Day O'Connor, who wound up having to withdraw after conservatives judged her too wishy-washy to be trusted.

Now, some conservatives are expressing concern that Third Circuit Court of Appeals Judge Thomas Hardiman, widely believed to be one of Trump's likely picks for the Supreme Court seat, could be Souter 2.0. Sure, he was appointed twice (first to district court, then the court of appeals) by George W. Bush. Yes, he has pretty solidly conservative track record of decisions on crime and gun rights. But some conservative activists are petrified nonetheless:

So what gives? Why is a two-time Bush appointee generating these kinds of jitters?

Hardiman is a reliable conservative…

As SCOTUSblog's Amy Howe and Vox's Dara Lind have noted, Hardiman's rulings in his 10 years on the appeals court bench are pretty reliably conservative, and particularly so on matters of crime and punishment. He has repeatedly ruled against death row inmates, joined an opinion upholding Delaware's protocol for lethal injections, ruled that strip-searching jail inmates is acceptable under the Fourth Amendment, and concluded that the First Amendment doesn't give citizens the right to videotape police officers, a position which, if applied nationally, could make it much harder to hold officers accountable for police brutality.

He is a fairly consistent supporter of gun rights, writing a dissenting opinion arguing the court should have struck down on Second Amendment grounds a New Jersey law limiting handgun carry permits to people showing a "justifiable need" to carry handguns in public. He also sided with two plaintiffs challenging a federal law banning felons and some misdemeanants from owning guns; he did not argue that the whole law was unconstitutional, but contended that because the two plaintiffs were only convicted of nonviolent misdemeanors (corrupting a minor and carrying a handgun without a permit, respectively), a ban that applies to them overly burdens Second Amendment rights.

He has a mixed record on the First Amendment, but it's mixed in a way that should be amenable to conservatives. He sided with an anti-abortion protester who was convicted of violating the terms of a permit and interfering with agency function after he refused orders from park rangers to leave a sidewalk in front of the Liberty Bell Center, and dissented to side with a mother and son who had been barred from reading from the Bible in a kindergarten "show and tell" session, arguing that barring religious texts infringed on free speech and religious liberty rights. He wrote an opinion striking down a Philadelphia charter provision barring donations from police officers to the police union's PAC; while pro-union, the implication of the ruling is that he's sympathetic to First Amendment challenges to campaign finance regulation, challenges like Citizens United.

On the other side, he sided against the NAACP in a case where it tried to place an ad criticizing mass incarceration in the Philadelphia airport, writing, "I view the City's restriction a reasonable attempt to avoid controversy at the airport." He dissented in a case involving a middle school that banned breast cancer awareness bracelets reading, "I ♥ boobies! (KEEP A BREAST)"; the court ruled that the middle schoolers had a First Amendment right to wear the bracelets, whereas Hardiman wrote in dissent that "the Majority's approach vindicates any speech cloaked in a political or social message even if a reasonable observer could deem it lewd, vulgar, indecent, or plainly offensive."

…but there are a number of red flags for GOP activists

Donald Trump with his sister Maryanne Trump Barry in 2008.
Ed Jones | AFP | Getty Images
Donald Trump with his sister Maryanne Trump Barry in 2008.

So what's not to love? Well, for one thing, there's Hardiman's reported backer: his Third Circuit colleague Maryanne Trump Barry, the president's sister. Barry has fairly strong Republican bona fides. She was first appointed to a district court by Ronald Reagan, and then picked for the Third Circuit by Bill Clinton as an attempt to balance out some Democrats he was appointing. Matthew Stiegler, who runs the Third Circuit–focused blog CA3, has described her as a "moderate-conservative Republican centrist."

But a lot of conservative activists hate Barry, mostly for a 2000 ruling she made overturning New Jersey's ban on so-called "partial-birth" abortion. Barry argued that the ban was unconstitutionally vague, potentially encompassing many other types of abortion clearly protected under Roe. The decision also came down shortly after Stenberg v. Carhart, a Supreme Court case striking down a nearly identical Nebraska law. For that reason, even Samuel Alito, then on the Third Circuit, concurred in Barry's judgment.

That said, because Barry argued in her opinion that the ban was arbitrary for its focus on cases where fetuses are partially outside the uterus, many pro-lifers attacked her for, in the words of Ramesh Ponnuru, "beginning to rationalize a constitutional right to commit and procure infanticide." It makes sense that anyone Barry endorses might, from the perspective of someone who thinks of her as an infanticide apologist, be suspect by extension.

"After the psychological scarring Republicans have suffered from William Brennan and David Souter (and, to a lesser extent, Anthony Kennedy), the idea of a Court nominee who doesn’t have ‘set ideas about particular hot-button issues’ makes me nervous." -Allahpundit, Conservative blogger

The influential pseudonymous conservative blogger Allahpundit, in an otherwise quite positive piece on Trump's shortlist, flagged as concerning this quote from a Pittsburgh Post-Gazette profile of Hardiman:

Richard Heppner Jr., who went to Harvard Law, served as one of four law clerks for Judge Hardiman in 2010. The one-year appointment, he said, was a great experience.

"Every day, there was thoughtful, careful attention to the law and arguments," he said.

The judge, he continued, was conscientious and strove to get the law right, while adhering to the Constitution and precedent.

Although Judge Hardiman tends toward conservative values, Mr. Heppner said, those don't color his work on the court.

"I don't think he really has set ideas about particular hot-button issues that would lead him to pre-judge a case that came before him," he said.

"True, you don't want a justice 'prejudging' cases," Allahpundit writes. "But after the psychological scarring Republicans have suffered from William Brennan and David Souter (and, to a lesser extent, Anthony Kennedy), the idea of a Court nominee who doesn't have 'set ideas about particular hot-button issues' makes me nervous."

There are a handful of Hardiman decisions, flagged by SCOTUSblog's Howe, that defy conservative orthodoxy by siding with claims of discrimination from marginalized groups. He wrote an opinion allowing a gender stereotyping claim from a self-described "effeminate" gay man, concluding that he was "harassed because he did not conform to [his employer's] vision of how a man should look, speak, and act." He ruled in favor of African-American firefighters challenging a fire department's residency requirement, on the grounds that it was a form of discrimination against black firefighters not living in the overwhelmingly white area served by the fire department. He noted that while only 3.4 percent of the population covered by the department is black, 0.62 percent of the firefighting force is, concluding, "minority workforce representation that low suggests discrimination."

He's also ruled in favor of a Honduran asylum seeker fleeing gang violence, a decision that has already earned him the enmity of the pro-Trump white supremacist site VDARE.

Finally, an influential measure of judicial ideology — the Judicial Common Space score — places Hardiman somewhere between John Roberts and Anthony Kennedy: that is, right in the middle of the Court. That suggests he's far to the left of Antonin Scalia, whom he would be replacing.

Why the Hardiman = Souter arguments don't make sense

Cards on the table: I don't think conservatives have much to worry about with Hardiman. Basically all the evidence marshaled against him is weak.

Take the Judicial Common Space score graphed above. The score attempts to infer the ideology of appellate judges from their appointing president and their two home-state senators, relying on the tradition of "senatorial courtesy" in which the Senate refuses to confirm nominees opposed by senators from their home state (and in which the White House usually consults those senators before making an appointment). Hardiman's home-state senators were Arlen Specter (then a moderate Republican, soon to become a moderate Democrat) and Bob Casey (a pro-life but otherwise liberal Democrat). So it's unsurprising that given their scores, he'd wind up appearing pretty moderate. But the score doesn't rely at all on how Hardiman actually voted as a judge. That limits its effectiveness as a metric.

The Maryanne Trump Barry issue is pure Kremlinological speculation. Whatever you think about her abortion jurisprudence, the idea that she's pushing Hardiman as part of a secret, shadowy plot to spring a pro-choice justice on her brother seems very far-fetched, especially compared with the more sensible inference that she worked with him for years and respects him as a colleague, and so thinks he's worth of a promotion.

As National Review's Ed Whelan — a leading judicial conservative and Hardiman supporter — notes, Barry testified to the Senate in support of the nomination of her colleague Alito, who proved to be a consistent social conservative once confirmed. "If you are alarmed," Whelan writes, "I suppose that you also would have been suspicious of this fellow named Antonin Scalia, whom President Carter's liberal White House counsel, Lloyd Cutler, testified in favor of at his Supreme Court confirmation hearing in 1986."

And the handful of liberal rulings by Hardiman are easily outweighed by the bulk of his judicial record, which leans strongly conservative and is, if anything, more accepting of government censorship of indecent or politically charged materials than Scalia was. Surely his rejection of the right to film cops, and backing of strip searches and the death penalty, outweighs a single pro-asylee ruling when judging his law-and-order bona fides.

Obviously, one can't predict with absolute precision how a circuit court judge will rule on the Supreme Court. The jobs are different — a Supreme Court judge is less obliged to follow precedents she doesn't like, for instance — and any judge is guaranteed to face issues on the Supreme Court that he didn't encounter at the appellate level. But based on what we know about Hardiman, he seems like a reliable, law-and-order conservative in the mold of Alito, not a liberal in sheep's clothing.

Commentary by Dylan Matthews, a senior correspondent at Vox. Follow him/her on Twitter @dylanmatt.

For more insight from CNBC contributors, follow @CNBCopinion on Twitter.