Roger Stone, a long-time friend of President Donald Trump, said this week that President Donald Trump has been told to expect an "imminent" letter of resignation from Supreme Court Justice Anthony Kennedy.
Trump told the Washington Times last week in an interview that he had heard rumors that Kennedy, the 80-year-old senior justice on the court, will be retiring, and said he would pick again from the of 21 potential Supreme Court picks that he released during the campaign.
Pittsburgh-based federal appeals court judge Thomas Hardiman, who was the runner-up on that list to replace Justice Antonin Scalia on the court earlier this year, when Judge Neil Gorsuch was ultimately chosen, is now thought to be at or near the top of the list to replace Kennedy.
Thomas Michael Hardiman serves with Trump's older sister, Judge Maryanne Trump Barry, on the U.S. Court of Appeals for the Third Circuit in Pennsylvania. Barry spoke with President Trump earlier this year, according to a Jan. 25 article in Politico, urging him to name Hardiman to the Supreme Court.
Hardiman, age 51, grew up in Waltham, Mass., and went to the University of Notre Dame, where he majored in liberal studies and Spanish. He spent a year in Mexico, as an exchange student, and returned to Notre Dame to graduate in 1987. He earned his law degree from Georgetown University in 1990.
Hardiman could raise red flags among supporters of Trump's hardline stance on immigration enforcement and refugee vetting.
In Washington, D.C., during and after law school, he volunteered at an immigration law legal aid center called Ayuda ("Help" in Spanish) representing illegal immigrants, and described his experience with the organization at his 2003 Senate confirmation hearing to become a federal district judge:
I volunteered at Ayuda, in the office, on a regular basis, and I did everything from fingerprinting and interviewing persons of Hispanic origin who entered the country without inspection and who were seeking work-authorization permits," he said. "When I got my law degree and my license to practice here in the District of Columbia, I represented several immigrants who had entered without inspection.
In fact, my first case as a trial lawyer while I was at Skadden Arps was a pro bono case on behalf of an immigrant from El Salvador whose name was Ernesto Orellana-Hercules, and I was quite pleased that we were able to gain a victory in immigration court...We obtained political asylum for Mr. Hercules...to this day, that is still one of the most important cases I have ever handled and perhaps the most important, and an experience I will never forget.
As an appeals court judge, Hardiman voted with the majority in 2010 in favor of a man from Honduras who'd entered the United States illegally and who was seeking asylum, saying if he returned to Honduras, he would be forced to join MS-13, a violent gang.
The Board of Immigration Appeals had rejected the man's application for asylum, saying a person must show they were persecuted for their opinions or because they are a member of a persecuted social group in order to win asylum.
In a concurring opinion, Hardiman disagreed, saying the man's opposition to joining a gang was a "political opinion."
In another case, Di Li Li v. Attorney General, Hardiman wrote that the immigration board must reopen a case involving an asylum seeker from China who converted to Christianity, though the man had converted to Christianity only when he was about to be deported, claiming he would be persecuted if he were sent back to China.
Hardiman has never ruled in an abortion case, though he once voted to throw out the conviction of an anti-abortion protester.
But Trump's sister, Judge Maryanne Trump Barry, who recommended Hardiman to her brother, is considered to be adamantly pro-choice. In 2000 she wrote an opinion striking down a New Jersey law banning partial-birth abortion, writing that it doesn't matter where the fetus is when it "expires." Judge Alito, who was serving on the court at the time with Barry, did not join this opinion, voting to strike down the law also, but on different grounds. The wording of Judge Barry's decision was so troubling that Congress subsequently passed a law making it clear that infanticide is illegal.
Would Judge Barry recommend a judge whose views on this important issue are so strikingly different than her own? Maybe. Hardiman was not serving on the 3rd Circuit Court of Appeals when Barry wrote the 2000 decision. He was appointed to the 3rd Circuit by President George W. Bush in 2007 and confirmed by the Senate 95-0 in that same year.
According to Federal Election Commission records, as an attorney in private practice living in western Pennsylvania, Hardiman donated to four candidates: William Ravotti, a pro-life candidate for Congress in 1998, Rep. Melissa Hart, a pro-life member of the U.S. House of Representatives from 2001 to 2007, Sen. Rick Santorum, who is famously pro-life, but also to Sen. Arlen Specter, who was pro-choice. Hardiman contributed $500 to Specter in 2001 and another $500 in 2003.
On gun rights, Hardiman is considered to be solidly conservative, with a record of upholding the Second Amendment, dissenting in a case, Drake v. Filko, in which the state of New Jersey was limiting handgun permits to people who could show a "justifiable need."
On issues of other individual rights, his record could be considered mixed.
In a 2012 case, Florence v. Board of Chosen Freeholders, he ruled that a Pennsylvania jail's policy of strip-searching everyone who is arrested does not violate Fourth Amendment prohibitions against unreasonable searches and seizures. The Supreme Court upheld the ruling 5-4.
In 2010, he ruled that there is no First Amendment right to videotape police officers at traffic stops, a decision that is at odds with the findings of several other courts.
Roger Stone, talking to conspiracy theorist Alex Jones on InfoWars on Monday, said he learned that Sen. Charles Grassley, the chairman of the Judiciary Committee, "has his own candidate" to fill the expected vacancy on the Supreme Court, and that Grassley has made his pick known to the White House. This person, said Stone, is not on Trump's list of 21 possible nominees.
But the press secretary for the Senate Judiciary Committee, when contacted by LifeZette on Thursday, said, "the senator's not been communicating, and wouldn't be communicating with anyone on filling a seat for a vacancy that doesn't exist" and said they don't have any "inside information" on the pending resignation of a Supreme Court justice.
In New York, before moving into the White House in January, Trump reportedly interviewed three people for the Supreme Court vacancy created by the sudden death of Justice Antonin Scalia in 2016: Hardiman, Gorsuch (whom Trump ended up nominating) and William H. Pryor.
Pryor, 55, is a former Alabama attorney general who now serves as an appeals court judge on the U.S. Court of Appeals for the 11th Circuit.
He is a graduate of Northeast Louisiana University, and earned his law degree from Tulane University.
"On pro-life issues, there's nobody whose views are better known than Bill Pryor," says John Malcolm, head of the Edwin Meese III Center for Legal and Judicial Studies at the Heritage Foundation and a member of the Federalist Society - the two groups involved in helping the Trump team put together the list of the 21 names.
He points to Pryor's startling exchange with Sen. Arlen Specter (R-Penn.) during his 2003 confirmation hearing to become a circuit court judge, in which Hardiman referred to abortion as the "slaughter" of innocent unborn children.
Sen. Specter: The chairman has asked about whether you have made some comments which you now consider intemperate ... I note the comment you made after Planned Parenthood v. Casey, where you were quoted as saying... ''In the 1992 case of Planned Parenthood v. Casey the Court preserved the worst abomination of constitutional law in our history,'' close quote. Is that an accurate quotation of yours?
Sen. Specter: Is that one which would fall into the category that Senator Hatch has commented on, you wish you had not made?
Pryor: No, I stand by that comment.
Sen. Specter: Why do you consider it an abomination, Attorney General Pryor?
Pryor: Well, I believe that not only is the case unsupported by the text and structure of the Constitution, but it had led to a morally wrong result. It has led to the slaughter of millions of innocent unborn children. That's my personal belief.
Like Hardiman and Gorsuch, Pryor's name was on the list of 21 possible candidates to fill Antonin Scalia's seat on the court.
"We are just so thrilled to have a list," Carrie Serevino, chief counsel with the Judicial Crisis Network, told LifeZette. "I can defend any of these nominees very happily."
In the interview with the Washington Times last week, Trump said his next Supreme Court pick will be "really talented" and "of our views."
Serevino said the rumor that Justice Kennedy, the most senior justice on the Supreme Court, is retiring, has been circulating for at least a year, though it appears that the rumor reached a new level of intensity on April 18, when Sen. Grassley said at an event in his home state of Iowa when asked about the Supreme Court: "I would expect a resignation this summer."
The Supreme Court's session ends on June 26, just eight weeks from now.
Kennedy will turn 81 in July. He was nominated to the Supreme Court by President Ronald Reagan in 1987, but has disappointed many conservatives, often siding with the liberal-progressive Supreme Court justices in many close decisions, including in the 2016 racial preferences case, Fisher v. University of Texas, in which the court upheld racial preferences in college admissions by a vote of 4-3, with Scalia's seat vacant and Justice Elena Kagan recusing herself. Kennedy cast the deciding vote.
In 1992, in Planned Parenthood v. Casey, the first case that presented an opportunity for the court to strike down Roe v. Wade, Kennedy sided with Justice Sandra Day O'Connor and Justice David Souter in upholding Roe.
Another name reportedly near the top of the list of 21 before Gorsuch was chosen is Diane Sykes, 59, a former Wisconsin Supreme Court justice and now a circuit court judge with the U.S. Court of Appeals for the Seventh Circuit.
Sykes got a bachelor's degree in journalism from Northwestern University and earned her law degree from Marquette University in Milwaukee. She is the ex-wife of former Wisconsin radio talk show host Charlie Sykes, who fiercely opposed Trump in the primary, helping Sen. Ted Cruz win the state.
Last year, Andy Schlafly, the son of the late conservative icon Phyllis Schlafly, complained that Sykes is not pro-life, saying, on a strategy call with representatives of other pro-life organizations, "I don't know why she's even on the list," according to the Washington Examiner.
He'd pointed to two of Sykes' decisions, one in which she sentenced pro-life protesters to 60 days in jail, and another that struck down a law that would have defunded Planned Parenthood in Indiana.
But Schlafly also complained that Judge Neil Gorsuch was not pro-life, and National Review later strongly disagreed with his reading of several abortion decisions.