The U.S. Supreme Court building stands in Washington, D.C., U.S. (Photographer: Andrew Harrer/Bloomberg)

Kavanaugh Has ‘Slight’ Edge, Scholar Who Helped Shape Trump’s Court Choices Says

(Bloomberg) -- After being first runner-up a year ago, Judge Thomas Hardiman seems to be a strong contender to be Donald Trump’s second pick for the Supreme Court, said three people familiar with the process, as the president completes his deliberations.

Other finalists for the vacancy created by the retirement of Justice Anthony Kennedy are said to be appeals court judges Brett Kavanaugh -- who was tipped as the winner on Sunday by an influential conservative scholar -- Amy Coney Barrett and Raymond Kethledge.

Trump said Sunday that he would finalize his decision by noon on Monday from a short-list of four candidates. He’s scheduled to announce the selection at a prime-time event from the White House East Room at 9 p.m. EDT Monday night. The president spoke to reporters as he boarded Air Force One to return from a three-day weekend at his golf course in Bedminster, New Jersey.

Vice President Mike Pence was at Bedminster for dinner and Supreme Court discussions on Friday but returned to Washington Friday night. Chief of Staff John Kelly was at Trump’s side for most of the three-day weekend before flying to Washington Sunday morning to prepare for the president’s upcoming trip to Europe.

Deadline Pressure

The deliberations are coming against a background of a tight deadline to guide the nominee through Senate confirmation in time for the new justice to be seated when the Supreme Court returns in October, a goal of Trump and Republican leaders.

Kavanaugh as recently as Friday appeared to have the inside track, but as of Sunday morning, Hardiman was solidly still in the mix, the people said. Trump also had a strong favorable reaction to Kethledge. Barrett was seen as a less likely choice. The president’s interview with her was only about 30 minutes -- shorter than with the others.

On Sunday, John Malcolm of the conservative Heritage Foundation, who helped shape Trump’s list of possible justices, predicted that Kavanaugh had a “slight” advantage.

Speaking on Fox News, Malcolm described Kavanaugh, a federal appeals court judge in Washington, as a “committed textualist” who “cares a lot about separation of powers” and would not give “undue deference” to regulatory agencies. He said Kavanaugh’s seat on the appellate court could help him because he sees a lot of issues that Trump cares about.

Paper Trail

Kavanaugh is also said to be favored within the White House, including having the support of White House Counsel Don McGahn, who’s supervising the search.

Yet the 53-year-old has something his competitors don’t have -- a massive paper trail, including from his 12 years as an appeals court judge, his stint in George W. Bush’s White House as an associate counsel and then as staff secretary, and his time working for independent counsel Kenneth Starr on the years-long Whitewater investigation into Bill and Hillary Clinton.

Sifting through those documents could bog down the confirmation process, as well as potentially raise red flags with Democrats already leery of all the people on Trump’s short list.

Senate Majority Leader Mitch McConnell, while not arguing against Kavanaugh on the merits, has spoken to the White House about the volume of material that would need to be pored through, said people familiar with the process.

Kagan’s Emails

A similar document dump happened when President Barack Obama nominated Elena Kagan to the Supreme Court. She’d worked in the White House under President Bill Clinton from 1995 to 1999, and 160,000 pages of documents, including her emails, were released by the National Archives over several weeks. In fact, Kagan was the first high court nominee to have emails subjected to intense scrutiny in the confirmation process.

Justice Neil Gorsuch, who worked at the Justice Department in 2005 and 2006, had a smaller set of documents for review. He was confirmed just 66 days after he was nominated. The Kagan proceedings took a bit longer, a full 87 days from start to finish.

Hardiman narrowly lost out to Gorsuch in 2017, when Trump made his first pick for the Supreme Court, to replace Justice Antonin Scalia. He has another potential advantage: he has served with Judge Maryanne Trump Barry -- the president’s sister -- on the 3rd U.S. Circuit Court of Appeals in Philadelphia.

Taxi Driver

Given Trump’s known habit of leaning on family ties and valuing loyalty above all, that could be decisive.

Hardiman, who turned 53 on Sunday, would bring a working-class background and conservative track record to the high court. He’s a former cab driver who was the first in his family to graduate from college. A graduate of Georgetown University’s law school, he would be the only sitting justice without an Ivy League degree.

Raised in Waltham, Massachusetts, west of Boston, Hardiman was appointed to his current post in Philadelphia in 2007 by President Bush, winning confirmation on a 95-0 vote. On the 3rd Circuit, he has backed gun rights and hasn’t ruled directly on abortion.

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