President Donald Trump has narrowed his Supreme Court pick down to three candidates, and will announce his final pick next Thursday.
Trump’s final three are reportedly Neil Gorsuch, a judge on the 10th U.S. Circuit Court of Appeals, based in Denver; Thomas Hardiman, a judge on the 3rd U.S. Circuit Court of Appeals, in Philadelphia; and Bill Pryor, a judge on the 11th U.S. Circuit Court of Appeals, in Atlanta. Trump interviewed the three finalists in New York during the transition period, sources familiar with the selection process told Politico.
Although Trump adviser Leonard Leo, a top official at the Federalist Society, declined to discuss Trump’s criteria for selection, he praised Gorsuch and Hardiman in a way that some observers consider it an indication that they are the front-runners.
“Under our Constitution, the power rests with the people, and that was at the core of Justice Scalia’s legacy, and you heard from President Trump’s inauguration that is the core of Trump’s agenda, and that’s very much the core of what Neil Gorsuch’s record is as a jurist,” Leo told Politico. “He’s an excellent writer. He’s got sharp analytical ability, strong intellect and he’s got a lot of strength and courage. Those are things that the president very much wants in a nominee.
“Hardiman,” Leo added, “shares many of the same qualities.”
At one point, Pryor had appeared to be Trump’s preferred choice for the Supreme Court seat. But he has since come under criticism from conservatives for joining with the majority in Glenn v. Brumby, a 2011 decision that protected transgender people from workplace discrimination.
The court found that the Georgia General Assembly had discriminated against transgender woman Vandy Beth Glenn when a supervisor fired her from her job as an editor in the General Assembly’s Office of Legislative Counsel, after finding out she intended to transition.
Despite joining the majority in the Glenn case, LGBT advocates have expressed concerns about Pryor’s record on LGBT rights, particularly his position on the right to privacy. In 2003, when he was Alabama’s Attorney General, Pryor filed an amicus brief in support of Texas’ anti-sodomy law, which was being challenged in the Supreme Court.
Pryor argued that states should be permitted to criminalize consensual sex between LGBT couples, even when it occurs in the privacy of their homes.
The Lawrence v. Texas decision, which found anti-sodomy laws unconstitutional, was later used to set the stage for future litigation advancing LGBT rights, including U.S. v. Windsor, which overturned the federal Defense of Marriage Act, and Obergefell v. Hodges, which legalized marriage equality nationwide.
Laura Epstein, press secretary for People for the American Way, says her organization is not aware of any past decisions by Gorsuch or Hardiman that were explicitly anti-LGBT, but simply pointed to Trump’s promise to appoint a Supreme Court justice ‘in the mold of Scalia,’ who was hostile to LGBT equality.
She noted that the Federalist Society and the Heritage Foundation — conservative think tanks that take a dim view of expanding or explicitly recognizing LGBT rights — have been advising Trump on a potential nominee.
Epstein also said that Gorsuch was one of the original judges in the Hobby Lobby v. Burwell case, which found that a corporation can be considered a “person” for legal purposes, and therefore can impose religious beliefs on employees by refusing to offer birth control. As Metro Weekly previously reported, the implications of the decision extend far beyond birth control and could endanger some LGBT protections.
“This has troubling ramifications,” Epstein explained. “If the heads of corporations are anti-gay, Gorsuch could rule that corporations have a right to restrict the benefits they give to LGBTQ employees.”
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