Thomas Hardiman, left, and Maryanne Trump Barry, right.
Thomas Hardiman, left, and Maryanne Trump Barry, right. (Courtesy photos)

Donald Trump’s sister, federal appeals Judge Maryanne Trump Barry, might be “high” on her colleague Thomas Hardiman as a potential U.S. Supreme Court justice. But Barry and Hardiman are hardly ideological soulmates.

Lawyers who follow their court—the U.S. Court of Appeals for the Third Circuit—generally characterize Barry as a moderate liberal and Hardiman as a conservative. But just like judges on other federal appeals courts, Hardiman and Barry sometimes agree with each other and other times don’t.

President Bill Clinton picked Barry in 1999 for the Third Circuit; she earlier was a Ronald Reagan nominee for New Jersey’s federal trial bench. Hardiman, based in Pittsburgh, has served on the appeals court since 2007.

Trump is expected on Tuesday to announce his pick for the Supreme Court. Hardiman was widely reported among the top contenders, who also include Neil Gorsuch of the Tenth Circuit and William Pryor Jr. of the Eleventh Circuit. Several scholarly studies point to Gorsuch as most resembling—on paper—the late Justice Antonin Scalia.

By no means an exhaustive search, here are some highlights from cases in which Hardiman and Barry found common ground—and from those disputes where they didn’t see eye to eye.

When Hardiman and Barry Disagreed

J.S. v. Blue Mountain School District: In 2011, Hardiman and Barry parted ways on a First Amendment student speech issue that remains unresolved: whether public school students can be punished for online comments they make away from school. By an 8-6 vote, the Third Circuit, sitting en banc, ruled against the suspension of an eighth-grade student from Pennsylvania who portrayed a school principal as a pedophile in a MySpace post. Allowing the disciplinary action to stand “would vest school officials with dangerously overbroad censorship discretion,” the majority ruled.

Hardiman joined a concurrence that went further than the majority. That concurrence said off-campus speech could never be the basis of school discipline because it would restrict “adequate breathing room for valuable, robust speech.” Barry joined a dissent that said the majority “leaves schools defenseless to protect teachers and school officials against such attacks.”

Busch v. Marple Newtown School District: Barry concurred in a 2009 panel decision that rejected the First Amendment claims of the mother of a kindergarten student who was prevented from reading verses from the Bible during a school program called “All About Me.” Barry wrote: “Children of kindergarten age are simply too young and the responsibilities of their teachers too special to elevate to a constitutional dispute cognizable in federal court any disagreement over what a child can and cannot say and can and cannot do and what a classmate can and cannot be subjected to by that child or his or her champion.”

Hardiman, however, said the school had engaged in unconstitutional viewpoint discrimination. “The majority’s desire to protect young children from potentially influential speech in the classroom is understandable. But that goal, however admirable, does not allow the government to offer a student and his parents the opportunity to express something about themselves, except what is most important to them.”

Lambert v. Beard: Applying the complex demands of the Antiterrorism and Effective Death Penalty Act divided the two judges in 2013 in an opinion Barry wrote. The Supreme Court had directed the Third Circuit to consider the state high court’s alternative basis for denying relief to a convicted murderer. Barry said the state court’s decision “rests on both an unreasonable application of federal law and an unreasonable determination of the facts in light of the evidence presented.” Hardiman countered that he could not find that the state court’s ruling was unreasonable “under the highly deferential AEDPA standard.”

United States v. Mitchell: In this 2011 en banc case, the majority ruled that the government has the right to collect DNA samples for inclusion in a national database from anyone who is arrested. Hardiman joined the majority opinion, which was based on reasoning that DNA profiles function as “genetic fingerprints” used only for identification purposes and pretrial detainees have reduced privacy interests in that information. Barry joined the dissent, which argued that arrestees’ private rights are not so weak as to allow the government to extract “highly sensitive information” in their genes.

And Where They Agreed

Marcus v. PQ: Barry joined Hardiman’s 2012 opinion that upheld a $3 million jury verdict in an age discrimination case brought against a Pennsylvania chemical company. The company challenged the jury instructions, the sufficiency of the evidence, and the impartiality of the jury.

Hardiman, joined by Barry and Judge Franklin Van Antwerpen, rejected the company’s arguments. The jury instructions “undoubtedly captured” the causation requirement in the law, Hardiman wrote. “PQ was not entitled to any particular language, so long as the instruction correctly described the law, and it did so here,” Hardiman added. As for the claim of insufficient evidence, Hardiman stated, “We are unpersuaded because plaintiffs introduced considerable evidence from which the jury could infer discrimination.”

Singer Management Consultants v. Milgram: Live Gold Operations got into a dispute with New Jersey over its Truth in Music Act when the company planned to use the trademarks “The Platters” and the “Cornell Gunter Coasters” in advertising a live music concert. Live Gold sought legal fees after the state changed its position, which mooted the case. Barry and Hardiman joined the unanimous en banc court in 2011 in holding that Live Gold was not a prevailing party because there was no enforceable judgment on the merits and the state’s actions that mooted the case were voluntary.

Zack Needles in Pennsylvania contributed to this report.

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