Pa. judge on short list for top court is 2nd Amendment stalwart

Listen 2:26
Judge Thomas Hardiman, federal judge on the U.S. Court of Appeals for the Third Circuit, moderates a panel discussion during the Federalist Society's National Lawyers Convention in Washington, Thursday, Nov. 17, 2016.

Judge Thomas Hardiman, federal judge on the U.S. Court of Appeals for the Third Circuit, moderates a panel discussion during the Federalist Society's National Lawyers Convention in Washington, Thursday, Nov. 17, 2016. (AP Photo/Cliff Owen)

During a decade on the federal appeals bench, if Thomas Hardiman has become known for one thing, it is his view of the Second Amendment right to gun ownership.

“He seems to be particularly protective of Second Amendment rights, compared to other federal court of appeal judges who have weighed in on the issue,” said Clark Neily, who studies criminal justice issues at the Cato Institute. “Whether that puts him outside of the mainstream — or whether it is the other judges that given short shrift to the Second Amendment — I suppose, is something reasonable people can disagree about.”

Hardiman’s legal opinions on a variety of highly charged issues have gained fresh scrutiny as the Pennsylvania judge on the 3rd U.S. Circuit Court has emerged as a top contender for President Trump’s nomination to fill the vacancy opening as Anthony Kennedy departs the U.S. Supreme Court.

Hardiman’s opinions show he sees the Second Amendment as almost boundless. He argued that a New Jersey law be struck down because it required applicants for handgun-carry permits to explain why they needed a gun in public by citing a specific threat. Hardiman viewed that as too burdensome, comparing it to a “rationing system.” He further wrote that not all felony convictions should put guns out of reach for potential buyers.

Adam Winkler, a professor at UCLA’s law school, has described Hardiman, 53, as a “Second Amendment extremist.”

“In Thomas Hardiman’s world, gun rights are even more expansive than they were at the founding [of the country],” said Winkler. “If Thomas Hardiman is confirmed to the Supreme Court, it will certainly be a strong vote against gun safety regulations.”

‘An everyman’

The son of a working-class family in Massachusetts, Hardiman was a first-generation college student who drove a taxi to put himself through school. And as a graduate of Georgetown Law, he would be the only high court justice without Ivy League credentials.

“His story is much more everyman than any of the others,” said Quin Hillyer, a conservative columnist with the National Review Online. “You need to find somebody who will be able to appeal to the public in a way that keeps enough senators in line to vote for him.”

On criminal justice issues, Hardiman has also been reliably conservative. He has written that strip-searching inmates isn’t a constitutional violation and has sided with police in disputes on whether citizens have a right to film law enforcement activity.

A 2013 dissent of his that drew headlines involved a case in which school administrators banned middle school students from wearing breast cancer awareness wristbands with the message “I ♥ boobies!”

Overall, the court ruled that the students had the First Amendment right to wear the bracelets, but Hardiman objected, saying the rest of the court was approving “any speech cloaked in a political or social message even if a reasonable observer could deem it lewd, vulgar, indecent, or plainly offensive.”

Matthew Stiegler, a Philadelphia lawyer who runs a blog that watches 3rd Circuit cases, says it is fair to call Hardiman a “staunch conservative.” But, that said, Hardiman’s opinions do not always track with traditional conservative perspectives.

Hardiman has ruled in favor of a gay man facing discrimination, an African-American firefighter, and a Honduran asylum-seeker fleeing violence.

“He has a little bit of an underdog perspective that has informed how he looks at cases as a judge,” Stiegler said.

Hardiman, who lives in Pittsburgh where he keeps chambers, has some inside backing from Judge Maryanne Trump Barry, the president’s sister who served alongside Hardiman as a 3rd Circuit judge. She reportedly called her brother to tell him that Hardiman should be his pick.

Hillyer said it is not a surprising endorsement, since Hardiman is a well-liked and respected judge among many in the legal world.

“By every single account, and I’ve talked to many, he is just a delightful, kind and thoughtful human being,” Hillyer said.

Want a digest of WHYY’s programs, events & stories? Sign up for our weekly newsletter.

It will take 126,000 members this year for great news and programs to thrive. Help us get to 100% of the goal.