Thomas Hardiman Survives Democratic Takeover of Senate
Third Circuit nominee wins newbie senator's support
The judicial-confirmation process is full of surprises. Just as you would have thought that Fifth Circuit nominee Leslie Southwick would surely have an easy path to confirmation in 2007, so you might have wondered how Third Circuit nominee Thomas Hardiman would ever get confirmed.
(Judge Hardiman and I discussed his judicial nominations at a Federalist Society event last year. I draw on our discussion here.)
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Tom Hardiman’s nomination to the seat vacated by Third Circuit judge Richard Nygaard suffered from very bad timing. Nygaard announced in early 2005 that he would take senior status on July 9, 2005. But it wasn’t until mid-September 2006 that President George W. Bush nominated Hardiman. If Bush had nominated Hardiman in 2005 or even in the first six months of 2006, the Senate would have had plenty of time to confirm his nomination before the November 2006 elections.
But when Senate Democrats swept all of the close races in November 2006, they gained six seats and won control of the Senate that would convene in January 2007. Even worse for Hardiman, Senator Rick Santorum of Pennsylvania, who was his strongest backer, was among the Republican senators who were ousted. Bob Casey Jr. defeated Santorum by more than 17 percentage points.
Hardiman had been targeted by Senate Democrats back in 2003, when Santorum persuaded Bush to nominate him to a federal district judgeship in the Western District of Pennsylvania. Hardiman was only 37 then. His nomination to that seat ran into trouble when an opponent in litigation charged that he had been sanctioned. Hardiman had to pay out of his own pocket for the hearing transcript that proved that charge to be false. Although he ended up being confirmed by voice vote, he was on the receiving end of a slew of hostile written questions from Democrats on the Judiciary Committee.
In the new Senate, a quiet no from Senator Casey would prevent any action on Hardiman’s Third Circuit nomination.
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On November 14, 2006—exactly one week after the election—Senate Judiciary Committee chairman Arlen Specter held a hearing on Hardiman’s nomination. Before the election, Specter had committed to Santorum, his Pennsylvania colleague, that the hearing would take place. Santorum introduced Hardiman. Specter was the only member of the committee who attended the hearing, and he posed only a handful of softball questions. But he made clear that he fully supported Hardiman’s nomination.
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On January 9, 2007, Bush renominated Hardiman to the Third Circuit. Some days later, Hardiman met with Casey in his temporary basement office.
Casey had won election as a blue-collar Democrat, pro-life and pro-gun. Hardiman was the first in his family to graduate from college, and he had worked as a taxi driver in high school and college. Hardiman had lots of friends in Pittsburgh who were Democrats and who knew Casey. Plus, his wife’s uncle, Stephen Zappala, had been chief justice of the Pennsylvania supreme court, and his two decades on that court included the eight years when Casey’s father—the real Bob Casey, a hero of mine—was governor.
Specter was in many respects more liberal than Casey. If Hardiman wasn’t too conservative for Specter to embrace him, how could Casey object to him?
At their meeting, Casey quickly put Hardiman at ease: “My friends in Pittsburgh say you’re doing a very good job.” Casey and Hardiman then chatted about their family connections to Notre Dame (Hardiman’s alma mater) and Holy Cross (Casey’s).
Casey returned a positive blue slip on Hardiman’s nomination. Whatever misgivings Casey’s more liberal colleagues had, they weren’t going to embarrass or undermine the rookie. On March 15, 2007, the Senate unanimously confirmed Hardiman’s nomination.
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In 2017 and 2018, Hardiman would be a finalist for Donald Trump’s first two Supreme Court selections. By then, Bob Casey Jr. had moved much further left, including on abortion and LBGTQ matters. In 2018, he declared that he would oppose whomever Trump nominated to Justice Anthony Kennedy’s seat.
Hardiman, now 60, continues to serve with distinction on the Third Circuit. In November 2024, Casey lost his bid for a fourth Senate term.