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Carlos Barria / Reuters
WASHINGTON — President Donald Trump plans to announce his nominee for the Supreme Court later Tuesday — but not before adding one more signature Trump move into the process.
CNN reported Tuesday afternoon that Trump is bringing both of his finalists — federal appeals court judges Neil Gorsuch and Thomas Hardiman — to DC in advance of Tuesday night's prime-time announcement.
Gorsuch, 49, is traveling to DC from Denver, where he sits on the US Court of Appeals for the Tenth Circuit. Although less high profile than some of the other 20 names on Trump's 21-person list of potential Supreme Court nominees, Gorsuch has been one of the names conservatives have said would be a great pick.
Gorsuch is perhaps best known for siding — strongly — with Hobby Lobby and Little Sisters of the Poor in the challenges brought by for-profit and non-profit entities, respectively, to the contraception mandate under the Affordable Care Act.
Thomas Hardiman, 51, is coming to DC from Pittsburgh, where he sits on the US Court of Appeals for the Third Circuit. Described recently by SCOTUSblog's Amy Howe as a “dark horse” possibility for Trump's nomination initially, he had become one of the clear front-runners in recent weeks.
Hardiman has laid out a solid conservative record on the Second Amendment that would fit with the significant attention Trump gave to gun rights during any campaign discussion of the high court.
The nomination is coming 50 weeks after Justice Antonin Scalia died unexpectedly, leaving the court for almost a year with only eight members. Although President Obama soon thereafter nominated Judge Merrick Garland — the chief judge of the US Court of Appeals for the DC Circuit — to fill the vacancy, Senate Republicans refused to consider the nomination, saying the matter would be left to the winner of November’s election.
The result was a somewhat lower-profile court over the past year that took fewer cases and also reached a series of 4-4 tie votes — split decisions that left lower court decisions in place but did not create a national precedent.
Now, however, in the midst of a nationwide debate over Trump’s refugee and travel ban executive order and 24 hours after he fired the acting attorney general for directing Justice Department attorneys not to defend the executive order, Trump is scheduled to announce his nominee at 8 p.m. Tuesday night.
Gorsuch came to Washington, DC, as a child when his mother, Anne Gorsuch, was named to head the Environmental Protection Agency under President Reagan. After Harvard Law School, Gorsuch clerked for Judge David Sentelle of the DC Circuit and then retired Justice Byron White and Justice Anthony Kennedy. After a decade in private practice, Gorsuch briefly worked in the Justice Department before being nominated to his current seat on the Tenth Circuit.
In addition to his religious liberty stances, Gorsuch also has laid out important views on law in more arcane, but nonetheless key, areas involving administrative law — a key issue as Trump's administration begins taking significant executive actions — and the so-called “Dormant Commerce Clause,” which limits state actions hurting out-of-state commerce.
Hardiman does not have the background of many of his would-be colleagues on the high court. As the Washington Post detailed in a profile of the judge, “He was the first in his family to graduate from college, did not attend an Ivy League law school and helped pay for his education by driving a taxi.” He does, however, serve on the Third Circuit with the president's sister, Judge Maryanne Trump Barry.
In addition to Second Amendment issues, Hardiman has raised the attention of outside observers for his First Amendment decisions, often siding with the government in free speech claims — another position that likely would be an easy sell to Trump.
Trump also had considered Judge William Pryor from the US Court of Appeals for the Eleventh Circuit, although his chances of getting the nomination appeared to diminish in recent weeks.
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