Critiquing appellate judges accurately is hard work. They decide cases in panels, not individually, and most of the cases they decide are dulls-ville to the general public. Dramatic insights into ability and ideology are few and far between.
But earlier in the election cycle, conservatives tried to score a political point against Donald Trump by painting Third Circuit Judge Maryanne Trump Barry as a radical pro-abortion extremist. It was a pathetic effort, egged on by people who surely knew better.
Now, it’s liberals’ turn to try to score a point against Trump by smearing judges, and this time the Third Circuit judge in the cross-hairs is Judge Thomas Hardiman.
Over the weekend, Huffington Post ran this essay by law professor Marjorie Cohn, entitled “The Threat of a Right-Wing Supreme Court: Analyzing Trump’s Prospective Judges.” The core premise of the piece is that the judges Trump has named as potential Supreme Court nominees are conservative (or, in the language quoted in the piece, “reflect a reflect a radical-right ideology that threatens fundamental rights and legal protections”).
Cohn tries to prove the judges’ radical-right wrongness by identifying conservative opinions written by each of the judges. For Judge Hardiman, she first notes his dissent in Drake v. Filko, arguing that the Second Amendment barred a state law that said you could only carry a handgun in public if you showed a justifiable need. Fair enough.
But then she writes:
Thomas Hardiman wrote two opinions allowing correctional officers to conduct strip searches of inmates accused of minor offenses.
The two cases she’s referring to are Florence v. Bd of Chosen Freeholders (2010), and Blaisure v. Susquehanna Co. (2015). The idea that these cases reveal Hardiman as a right-wing wingnut does not withstand scrutiny.
In Florence, Hardiman’s opinion was joined by Judge Sloviter. In Blaisure, he was joined by Chief Judge McKee and Judge Ambro. Are they all radical-right judges now, too?
And if Florence and Blaisure prove that Hardiman is so out-there, what about J.B. v. Fassnacht, which upheld strip searches for detained 12 year-olds? That ruling is vastly more troubling to me than either of Hardiman’s, and it was written by Clinton nominee Judge Julio Fuentes. Should progressives complain if a Republican nominated him to the Supreme Court?
With so many legitimate grounds to criticize Trump, why this? Sound-bite judge-bashing is lazy and poisonous, whether it’s done by conservatives or liberals.