Supreme Court Nominee? My Assessment of Judge Thomas Hardiman

Law360 asked me the week after the inauguration to look into Judge Hardiman as a potential Supreme Court nominee. They re-contacted me on Friday to run parts of the following response.

My assessment of Judge Hardiman is limited to employment and immigration cases (i.e., not reproductive rights). Judge Hardiman’s decisions are well explained and written in a neutral tone. They lack Justice Scalia’s tart, expansive, know-it-all prose. His decisions don’t appear to stray beyond the facts, as Justice Alito is prone to do when he engages in dicta to signal the bar to advance his thinly veiled agenda.

On to some cases.

On immigration, Judge Hardiman’s record is what one would expect from a competent appellate judge. The grounds for reviewing orders from immigration judges are extremely narrow. The fact that Judge Hardiman frequently denies appeals by petitioners for asylum is entirely consistent with how federal appellate judges rule.

Two cases are worth mentioning, however.

In Gjonomadhi v. Attorney General of U.S., 310 Fed.Appx. 495 (3d Cir. 2009), Judge Hardiman disagreed with the immigration judge’s conclusion that an asylum petitioner from Albania had not suffered political persecution. He ruled, “we find that the IJ's conclusion that there is ‘in the record no compelling evidence that the respondent suffered past persecution’ cannot stand.” The point of this case is that Judge Hardiman doesn’t rubber stamp immigration appeals from aliens who have lost deportation cases before immigration judges.

Kwee v. Attorney General U.S., 269 Fed.Appx. 147 (3d Cir. 2008) is another interesting case. Here, Judge Hardiman— who was educated in Catholic universities— upheld a ruling from an immigration judge who ordered removal of a petitioner who alleged a pattern of persecution of ethnic Chinese Catholics in Indonesia. If Judge Hardiman had any personal sympathies for this alien on shared religious beliefs, he nevertheless stuck to the law.

In employment cases, he is a standard issue conservative judge who tends to rule for employers; but in doing so, his rulings stick closely to the law and facts. In EEOC v. Allstate Insurance Co., 778 F.3d 444 (3d Cir. 2015), Judge Hardiman wrote the opinion and ruling that affirmed a district court dismissal of discrimination claims brought by a class 6,200 insurance agents. The plaintiffs claimed that All-State unlawfully converted their status from employment to independent contracting with a discriminatory and coercive waivers. He rejected these theories, stating: “It is hornbook [basic] law that employers can require terminated employees to release claims in exchange for benefits to which they would not otherwise be entitled.” Allstate had offered four different options to the plaintiffs. The decision is a mainstream ruling that pushed back against the EEOC’s more expansive theory of discrimination—but notably, the decision did not overturn precedent.