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.
Pryor did not write either of these opinions, but he did join them in full, without disagreement. Phillip Jauregui, president of the Judicial Action Group, said the Glenn decision primarily used a case, Price Waterhouse v. Hopkins (1989), that was about traditional gender norms, not transgender rights. “The woman in Price Waterhouse never said she was a man, never tried to use a men’s restroom, and never demanded that her colleagues refer to her as a man,” Jauregui told World‘s Derrick. “The only way to get from Price Waterhouse to Glenn is judicial activism.”
The third troubling case came earlier, in 2003, Pryor — as Alabama attorney general — prosecuted then-Chief Justice Roy Moore when he disobeyed a federal court order to remove a 2-ton monument of the Ten Commandments at the state judicial building. While this might be a more symbolic case, it certainly raises questions in an era when powerful groups like the ACLU sue to force a small Indiana town to remove its cross from a Christmas tree, and when the tweeting of Bible verses is condemned as “unchecked Christian extremism.”
Pryor is not the only controversial pick among conservatives. Colorado-based appellate judge Neil Gorsuch has also taken fire. Andrew Schlafly, a lawyer at the Legal Center for Defense of Life and son of the late activist Phyllis Schlafly, said Gorsuch uses pro-choice terminology in his writings and may not be willing to overturn the Roe v. Wade decision (which legalized abortion in all 50 states in 1973).
“Gorsuch is not pro-life,” Schlafly told The Washington Times. “That would break Trump’s pro-life pledge to pick Gorsuch.”
To make matters worse, Gorsuch attends an Episcopal church, St. John’s in Boulder, Colo., with a very liberal rector. The church’s website mentions gun control and solar power on the home page, along with services and communion instruction. The head rector (the high church equivalent to senior pastor), Susan Woodward Springer, attended the Women’s March in Washington, D.C.
“Somewhere in that glorious, unified, peaceful, friendly law-abiding crowd of 200k was a contingent from St John’s in Boulder,” Springer posted on Facebook. “I carried a sign that read ‘Episcopalian women marching for the dignity of every human being.'”
Somewhere in that glorious, unified, peaceful, friendly law-abiding crowd of 200k was a contingent from St John's in…
This is ironic, because the very same Women’s March excluded pro-life women from its ranks and physically harmed them during the protest. One pro-life woman was even told by the pro-abortion protesters they “hope you get raped,” just so she’d have to get an abortion. Talk about “peaceful” and “friendly.”
Judge Gorsuch serves as an usher in Springer’s church, and his wife gives the sermon and leads intercessory prayer on occasion. Here is the church’s bulletin for November 11, 2016. Some have alleged the church is “pro-abortion,” and Springer’s support for the Women’s March does nothing to assuage such concerns. It is not fair to judge Gorsuch by his pastor’s alleged beliefs, but they do prompt questions.
Judge Thomas Hardiman has much less of a record on social issues. In one case, he defended a pro-life protester who was arrested for refusing to move away from the sidewalk in front of the Liberty Bell Center in Philadelphia. The Pennsylvania judge has come under fire for ruling against a citizen’s right to film a police officer during a traffic stop. Hardiman’s silence on the issue of abortion and his questionable record on civil liberties might present serious problems, but he is the least controversial of these three.
On the plus side, Hardiman would be the first Supreme Court justice without a degree from an Ivy League school.
To be clear, all three of these judges, despite questionable connections and these few concerning rulings, have stood firm on the basic principle of originalism, protecting the founders’ original intent for the Constitution and Congress’ original intent on legislation. It may be nearly impossible to replace every aspect of Justice Antonin Scalia’s conservative jurisprudence, and these men do represent viable candidates.
Nevertheless, these are valid concerns among conservatives about Trump’s most likely nominees. Perhaps the president should pick someone else.