In the 12 years since he was confirmed to the U.S. Court of Appeals for the Third Circuit, Judge Thomas Hardiman has developed a reputation as a hardworking jurist who balances the arguments of both sides with the existing precedent. As a result, the judge, who is on the shortlist of potential nominees to the U.S. Supreme Court, cannot be easily labeled, according to those who have practiced before him.
“I don’t think you can put a label on it,” Reed Smith appellate attorney James Martin said. “He would be the first one to resist that he has some sort of pre-disposition in his decision-making that allows you to predict how he’s going to rule in a case.”
Numerous national media outlets have reported, as of Monday afternoon, that Hardiman is one of a handful of judges President Donald Trump is considering for a nomination to the Supreme Court to replace retiring Justice Anthony Kennedy. Trump has said he plans to announce his decision at 9 p.m. Monday.
Hardiman was widely reported to have been a finalist under Trump’s consideration before the nomination of Justice Neil Gorsuch in 2017.
According to attorneys who have practiced before Hardiman, if the Third Circuit judge was nominated and confirmed, the Supreme Court would get a diligent jurist, who makes sure all the litigants get to state their case.
Kline & Specter attorney Charles “Chip” Becker, who is president of the Bar Association of the Third Federal Circuit, said in an emailed statement that Hardiman is “decent, pleasant, hardworking, and strives to embody the best of the federal judiciary.”
“In my experience, he has excellent judicial temperament and appreciates the multiple sides of a case,” Becker said. “I have argued before him in several matters. Each time, I had confidence he understood my client’s perspective and was glad to have him on the panel, even when we lost. I’ll be happy for him if he secures the nomination.”
Terry Ficken Sachs, vice chair of Marshall Dennehey Warner Coleman & Goggin’s appellate group, said that, when it comes to criminal justice issues, Hardiman is seen as being solidly conservative, but, on the civil side, he does not approach issues from either a conservative or liberal standpoint. She cited his 2015 precedential decision in Brand Marketing Group LLC v. Intertek Testing Services, in which he authored an opinion saying juries can award punitive damages in negligent misrepresentation cases.
“When you read through that, he’s not someone who approached it as a conservative, or a liberal,” she said. “He didn’t decide the case from an ideological standpoint in any way.”
Sachs added that Hardiman is measured and thoughtful even when issuing dissents, and is very highly regarded on the Third Circuit.
Hardiman is a Massachusetts native, but he has spent the bulk of his professional and judicial career in Pittsburgh. He was the first in his family to graduate from college, and, if nominated and confirmed, would be the only sitting justice without an Ivy League degree, having graduated with honors from Georgetown University Law Center in 1990, after earning his B.A. from the University of Notre Dame.
Martin said that, along with being even-tempered on the bench, Hardiman is a thorough questioner from the bench and produces clean and concise opinions.
“His written opinions are comprehensible and understandable, and more importantly, they are opinions that say only as much as you need in order to resolve the controversy,” Martin said. “He’s sensitive to his role as an intermediary. It’s a welcome tendency.”
Martin noted that, although most of his dealings with Hardiman are in their professional capacity, the two both live in the same suburb of Pittsburgh and know each other personally.
During his time on the court, Hardiman has been on panels that have addressed, at least in part, high-profiles issues, including abortion and the Second Amendment—issues that have gotten even more attention in the wake of Kennedy’s decision to leave the bench, as the retiring justice was widely viewed as a swing vote on the court.
In 2016, Hardiman stood with the majority in a split court allowing two former criminals to bear arms. The court held that the men were allowed to own guns because they had served their sentences and were no longer a threat to society. However, in a concurring opinion, he said people who have “demonstrated that they would present a danger to the public if armed” could lose that right.
In 2010, he also joined that said an anti-abortion protester had a right to demonstrate on a public sidewalk. That ruling in, United States v. Marcavage, tossed the conviction of the anti-abortion protester, who had been arrested after refusing to move away from the sidewalk near the entrance the building that houses the Liberty Bell.
In the realm of free speech, Hardiman issued a ruling in 2015 removing Philadelphia’s ban on its police officers donating to their Fraternal Order of Police political action committee. Hardiman reasoned that the ban, intended to curb political patronage, violated the officers’ First Amendment rights.
In 2013, he also issued a dissent in the closely watched “I heart boobies” case, in which the majority said a school could not bar students from wearing bracelets that said “I heart boobies” in support of breast cancer awareness. “The majority’s approach vindicates any speech cloaked in a political or social message even if a reasonable observer could deem it lewd, vulgar, indecent, or plainly offensive,” Hardiman said in the dissent.
In other cases, however, Hardiman has ruled in favor of free speech rights for students, including joining the majority in two 2011 cases finding off-campus speech could not be disciplined on campus.
After his graduation from Georgetown Law, Hardiman began his career at Skadden, Arps, Slate, Meagher & Flom in Washington, D.C. From 1999 until 2003, when he was nominated by President George W. Bush to the U.S. District Court for the Western District of Pennsylvania, Hardiman was a partner at Reed Smith. After serving on the district court, Bush appointed Hardiman to the Third Circuit in 2007.