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Will It Be Gorsuch, Hardiman, or Pryor for the Supreme Court?

By Casey C. Sullivan, Esq. on January 25, 2017 11:14 AM

And then there were three. Or, maybe two. President Donald Trump has narrowed his list of potential Supreme Court nominees down to three main contenders, Politico reported yesterday. Neil Gorsuch and Thomas Hardiman, of the Tenth and Third Circuits, respectively, are the two front runners. William Pryor, once considered one of the most likely picks, "remains in the running but is fading," according to insiders who spoke with Politico.

So, which of the three will it be?

William Pryor, a Fading Frontrunner?

Pryor, of the Eleventh Circuit, had long been held forth as a likely pick. He's strongly conservative, with a record that is tough on criminal defendants, strongly supportive of capital punishment, and sympathetic to religious liberty claims. Pryor, for example, has defended the use of prayer in legislative sessions and has argued that the Affordable Care Act's contraception mandate violated religious freedom -- just as the Supreme Court ruled similarly in Hobby Lobby.

Pryor, too, is a bit of a protégé of Senator Jeff Sessions, Trump's pick for attorney general. Pryor served as his deputy when Sessions was Alabama's attorney general, a position which he later took over himself. That relationship could give Pryor a valuable advocate in the new administration.

But, Pryor's star seems to have faded a bit. There are a few possible reasons. First, he's the oldest on the list, at 54 years of age.

Secondly, he's taken strong positions on several controversial issues. As Alabama's AG, he argued in support of laws criminalizing homosexuality. (He's taken a more nuanced stand on LGBTQ issues as a judge.) He's called Roe v. Wade "the worst abomination of constitutional law in our history," a position he stood by during his 2003 confirmation. He's condemned Miranda v. Arizona as "one of the worst examples of judicial activism."

Such strong views on hot-button issues could make his confirmation much more difficult, perhaps causing the president to look elsewhere.

Thomas Hardiman, a Man With a Compelling Story

The Supreme Court justices have been characterized as coastal elites, Harvard grads from New York and California. (Justice Scalia, and Harvard grad from New York, and a millionaire, made that same critique in his dissent to Obergefell, the case establishing a constitutional right to marriage equality.) Hardiman could be a compelling alternative to that trend.

Hardiman grew up in a working-class town in Massachusetts. He was the first member of his family to attend college and helped pay for his law school, at Georgetown, with a part-time job driving taxis.

As a jurist, he's as conservative as the other nominees, with opinions expressing expansive Second Amendment rights, for example. He's also a former trial judge. Currently, Justice Sotomayor is the only sitting justice with such experience.

Neil Gorsuch, Another Scalia?

In many ways, Gorsuch seems like a natural replacement for "Scalia's seat." He's an originalist and a textualist. He's no fan of the Dormant Commerce Clause. His writing, though perhaps not as cutting as Scalia's, is tight and entertaining. He's so Scalia-like that SCOTUSblog's Eric Citron described the similarities between the two as "downright eerie."

Further, though Gorsuch has a strong conservative ideology, he hasn't decided major cases on controversial issues like abortion or gay rights. That could make any potential confirmation hearings run more smoothly, though Democrats have pledged to fight Trump's nominees no matter what.

Finally, as of this morning, Gorsuch was in a three-way tie in our SCOTUS poll, running neck and neck with Pryor and "none of the above."

Trump has said that he'll announce his pick next Thursday.

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