In the “race” for a Supreme Court nomination, Judge William Pryor may have the backing of Sen. Jeff Sessions (plus many movement conservatives), but Judge Thomas Hardiman has the backing of someone near and dear to President Trump — his sister, Judge Maryanne Trump Barry. Hardiman and Barry are colleagues on the U.S. Court of Appeals for the Third Circuit.
Judge Barry’s support is causing some conservatives to worry about Judge Hardiman. Why? Because, as Ed Whelan explains, Barry — appointed to the district court by Ronald Reagan but elevated to the Third Circuit by Bill Clinton — is not considered a conservative judge. Moreover, her ruling in at least one abortion cases is abhorrent to many in the pro-life movement (more on that, plus my experience litigating before Judge Barry, in a moment).
Ed argues that, for conservatives, Barry’s endorsement of Hardiman should not be the kiss of death. He reminds us that she testified strongly in favor of Justice Alito at his confirmation hearing, and did so notwithstanding their various disagreements over the years, including in a partial-birth abortion case. This shows “that Barry, like many other judges, appreciates colleagues who are very smart and capable, even if they do not share her own judicial approach.”
Ed also recalls that Lloyd Cutler, a leading liberal lawyer of the day, testified in favor of Antonin Scalia’s confirmation in 1986. Conservatives, says Ed, shouldn’t be “alarmed by the fact that excellent conservative judges have earned respect from folks with different judicial philosophies.”
I think that’s right.
It’s also the case that, unlike Lloyd Cutler, Judge Barry isn’t a liberal. From the pro-life perspective, which I share, she isn’t good on abortion. However, my description of her last year as “obscenely pro-abortion” went too far.
I was right, I think, to be concerned that Donald Trump was defending his sister’s judicial record on abortion, and doing so in a very misleading way. But I was wrong to call her “obscenely pro-abortion.”
In some areas of the law, Judge Barry holds (or once held) conservative views. I participated in a case Judge Barry decided when she was a district court judge. It wasn’t my case, but I was called in to write a summary judgment brief against the EEOC in an action alleging age discrimination in connection with the layoff of older workers following a consolidation of work forces.
We sought summary judgment as to claims made on behalf of nearly four dozen employees. Each claim had to be analyzed separately.
In some cases, it seemed clear that our client was entitled to summary judgment. Others were close calls.
Judge Barry awarded summary judgment as to all claimants. Her opinion more or less tracked the arguments we made in the brief.
I haven’t followed Judge Barry closely since she became a court of appeals judge almost a quarter of a century ago. My impression is that, overall, she is a moderate. Matthew Stiegler, who blogs about the Third Circuit, calls her a “moderate-conservative Republican centrist.”
However one characterizes Judge Barry, I don’t think her endorsement of Judge Hardiman is cause for concern over the prospect of his nomination to the Supreme Court.