President Trump's Top Three Rumored Supreme Court Nominees Have Serious Problems
On Monday, President Donald Trump announced that he has chosen whom he will nominate to the Supreme Court, and that he will publicize that decision Tuesday evening. While conservatives welcome the opportunity to have a Republican president choose the next justice, the top three rumored nominees pose a few serious problems from a conservative standpoint.
Bloomberg reported that both federal district court judge Thomas Hardiman and appellate judge Neil Gorsuch have met with Trump, but that appellate judge William Pryor (who served as Sen. Jeff Sessions's deputy while Sessions was Alabama's attorney general) might also still be considered. Each of these men are stalwart constitutionalists, but they also have glaring weaknesses.
Conservatives, irked at the apparent trend of Republican presidents nominating supposedly conservative Supreme Court nominees who end up supporting liberal issues on the Court (liberal Justices David Souter, Anthony Kennedy, and Sandra Day O'Connor were nominated by Ronald Reagan and George H.W. Bush), are wary of any deviation on serious issues, especially when it comes to pro-life and religious liberty cases.
"Pryor may be 90 percent good on his decisions, but that is not good enough," Tim Wildmon, president of the American Family Association, told World Magazine's J.C. Derrick. "We need someone who will be just like Scalia, 100 percent, in terms of their judicial philosophy." Wildmon joined Focus on the Family leader James Dobson and Family Research Council President Tony Perkins in mentioning concerns about the judge from Alabama. Three cases in particular concern conservative leaders.
In Keeton v. Anderson-Wiley (2011), a state college expelled a Christian counseling student after she refused to agree to remediation measures (like attending a gay pride parade) mandated to change her views on homosexuality. Pryor joined with two other judges in ruling that the school did not discriminate against the student, because the school would treat anyone with her (stone age) beliefs the same way.
This might suggest a weakness on religious freedom, but there was also an even more troubling case involving transgender issues. In Glenn v. Brumby (2011), Pryor joined with the circuit court's liberal former Judge Rosemary Barkett in backing up a biological man who was fired after he said he wanted to dress as a woman and begin transgender "treatments."
In a ruling that Slate's Mark Joseph Stern called "absolutely revolutionary" for transgender employment rights, Pryor agreed that the Equal Protection Clause of the U.S. Constitution protected the employee from discrimination based on sex, which the court interpreted to include gender identity.
It is this very ruling that multiple departments of the Obama administration cited to apply federal rules banning discrimination based on sex to "gender identity" cases. In May of last year, the Department of Justice ruled that North Carolina's "bathroom bill," which designated non-single stall restrooms to the corresponding biological sex, was really gender discrimination, violating the 1964 Civil Rights Act.