Donald Trump’s Supreme Court shortlist has reportedly been whittled down to three judges currently serving on federal appeals courts: Neil Gorsuch, Thomas Hardiman, and William Pryor. All three are staunch conservatives, but there are critical variations among the men. Gorsuch is a conservative with the libertarian instincts of the late Justice Antonin Scalia and the smooth temperament of Chief Justice John Roberts. Hardiman is a more government-friendly conservative in the mold of the late Chief Justice William Rehnquist. Pryor is a blatantly partisan Republican à la Justice Samuel Alito. Gorsuch would likely vote in line with Scalia’s precedents, while Hardiman might move the court slightly rightward, particularly on censorship.
Pryor, for his part, would serve as a bomb-throwing culture warrior and Republican politician in robes. A partisan and an extremist, he is the only one of Trump’s shortlisters who would merit a filibuster. If Trump nominates him, Democrats will be politically and morally obliged to fight his nomination to the bitter end. William Pryor has no place on the Supreme Court.
Start with Gorsuch, the nominee least likely to spur a Democratic filibuster—not because of his ideology but because of his relatively scant paper trail, his unfailing eloquence, and his universal legal renown. Gorsuch sits on the U.S. Court of Appeals for the 10th Circuit, based in his home state of Colorado, to which he was appointed, without controversy, by George W. Bush. A Harvard Law graduate, a Marshall Scholar, and a Supreme Court clerk (for both Justice Anthony Kennedy and the right-leaning Justice Byron White), Gorsuch’s credentials are impeccable. His writing is superb, incisive, witty, and accessible in the style of Scalia and Justice Elena Kagan. In speeches and oral arguments, he comes across as thoughtful and fair-minded. He is also quite handsome, which may appeal to Trump, who purportedly makes appointments based on who looks the part.
Gorsuch’s jurisprudence is distinctively Scalian minus the embarrassingly partisan volatility that marred the justice’s later years. He is skeptical of overreaching federal prosecutions and, in particular, attempts to reach beyond a statute’s text to criminalize innocent conduct: hallmarks of Scalia’s jurisprudence that distinguished him from a prosecutor-friendly justice like Alito. He questions the wisdom of judicial deference to administrative agencies as Scalia came to do. He is generally unreceptive to death-row inmates seeking to escape executions. And perhaps most notably, he is extraordinarily solicitous to religious corporations, writing that they must not be required to comply with the contraceptive mandate if doing so makes them “complicit” in evil.
This conservatism is principled and consistent, making it a mixed bag for liberals. It seems safe to say that Gorsuch would have voted to strike down the Affordable Care Act, uphold same-sex marriage bans, and maintain and expand the death penalty. On the other hand, I find it difficult to believe that Gorsuch would have embraced grotesquely partisan litigation like the duplicitous effort to explode the ACA in King v. Burwell. And though he has heard few First Amendment cases, I suspect Gorsuch would share Scalia’s and Roberts’ preference for free expression over Alito’s disturbing embrace of censorship.
The same cannot be said of the second Trump shortlister, 3rd Circuit Judge Thomas Hardiman. In 2016, Hardiman dissented from a decision that struck down Philadelphia’s ban on noncommercial private advertisements in the airport. Hardiman wrote that the city should be permitted to gag the NAACP, which hoped to place an ad reading “Welcome to America, home to 5% of the world’s people & 25% of the world’s prisoners. Let’s build a better America together.” This content-based suppression of expression is totally incompatible with the court’s modern First Amendment jurisprudence and should unnerve free speech advocates. Hardiman also wrote that public schools should be able to punish students wearing bracelets that read “I ♥ Boobies!” as part of a breast cancer awareness initiative. On the other hand, Hardiman takes a generous view of the First Amendment value of campaign contributions, voting to strike down a law that prevented police officers from contributing to their union’s political action committee.
Similar to Scalia—and to Gorsuch, and virtually all conservative federal judges today—Hardiman takes an expansive view of the Second Amendment. He believes the right to bear arms extends beyond the home, suggesting that restrictions on concealed carry might be unconstitutional. He thinks at least some convicted felons still have a right to own a firearm. He voted to let jails strip search anybody, even without any reasonable suspicion, a position unfortunately upheld by the Supreme Court. But he is sometimes hard to pigeonhole: He also held that discrimination against gay men for being “effeminate” may constitute unlawful sex discrimination, a hot-button topic that is destined for Supreme Court determination.
Oddly enough, our last shortlister, 11th Circuit Judge William Pryor, joined a similar ruling that held anti-trans discrimination may qualify as sex discrimination under the Equal Protection Clause. Apparently this decision has hurt Pryor’s chances at getting the nomination—which is odd, because in pretty much every other way, Pryor is an extreme conservative whose judicial beliefs align almost perfectly with the latest draft of the GOP platform. He has called Roe v. Wade the “worst abomination in the history of constitutional law,” wishes to overturn it, and personally opposes all abortions—even for rape victims. He has denigrated the Voting Rights Act and the Violence Against Women Act. He thinks the government should be permitted to execute mentally disabled people and is unconcerned with racial bias in capital punishment.
Pryor spearheaded a lawsuit that would have significantly weakened the Americans with Disabilities Act. He has upheld convictions in clear cases of racial profiling, and he thinks states’ rights prevent the federal government from protecting wetlands from destruction. He opposes providing Miranda warnings to criminal suspects and has argued that some indigent defendants do not deserve a public defender. He speaks about the Supreme Court in openly partisan terms, once proclaiming, “Please God, no more Souters,” in reference to the left-leaning Republican appointee. He also said he “wanted” Bush v. Gore to be 5–4 so that President George W. Bush would “have a full appreciation of the judiciary and judicial selection so we can have no more appointments like Justice Souter.” He disparages the separation of church and state, endorsing prayer in public schools and Ten Commandments displays in courtrooms.
Naturally, Pryor vehemently opposes judicial protection for “homosexual rights.” And as Alabama attorney general, he defended the constitutionality of anti-gay sodomy laws. His brief declared that states “should not be required to accept, as a matter of constitutional doctrine, that homosexual activity is harmless and does not expose both the individual and the public to deleterious spiritual and physical consequences.” It also asserted that states “should remain free to protect the moral standards of their communities through legislation that prohibits homosexual sodomy.” And he concluded anti-sodomy bans did not constitute sexual orientation discrimination, noting that “sexual orientation … may or may not be a matter of choice.”
Unlike Scalia, Pryor has no independent streak, no healthy skepticism of overbearing government intrusion, and no commitment to an independent judiciary. It is already horrifying enough that Republicans stole this seat from President Obama by refusing to even consider his nominee, Judge Merrick Garland. Democrats should resist the impulse to stoop to Republicans’ level by automatically rejecting Gorsuch or Hardiman; they cannot restore democratic norms by dashing them even further. But Pryor is a different matter. His elevation to the Supreme Court would pose a serious threat to the civil rights of millions. If Democrats filibuster Pryor, they will not be playing politics with the court. They will be protecting it from a man with about as much respect for the Constitution as Donald Trump himself.