PRO BONO Illegal Alien Volunteer Judge Thomas Hardiman Should Be Non-Starter for SCOTUS


Donald Trump has already done more for patriotic immigration reform in three days than all his predecessors in the last half century combined and he’s poised to do even more. But he will face stiff litigation from both Blue states and well-funded non-profits over everything from routine deportations to defunding Sanctuary Cities and working with local law enforcement on immigration.  For even bolder steps, like ending birthright citizenship, he will need a solid Supreme Court behind him. That is why he cannot take the risk of nominating Third Circuit Judge Thomas Hardiman to the seat previously held by tragically-deceased Antonin Scalia.

The prediction market Predict.org currently shows Hardiman slightly behind Neil Gorsuch as SCOTUS favorite. I would like to do more research on Gorsuch. But Hardiman’s immigration record makes him a non-starter. Ominously, as a student and a young lawyer, he did pro-bono work on behalf of illegal aliens. As a federal judge, he has twice overruled the overwhelmingly permissive and Leftist Board of Immigration Appeals to grant asylum in questionable cases.

During Hardiman’s confirmation hearings for a district court judgeship in 2003, he explained,

My time spent at Ayuda, a legal aid clinic here in Washington, was some of the most valuable  time that I spent as a law student and as a lawyer…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…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.

[Confirmation Hearings on Federal Appointments, S. Hrg. 108-135, Pt. 3, April 30, 2003]

So Hardiman helped this illegal alien as a young associate at a large law firm. Well, as a young lawyer, I’ve had law firm partners tell me to do Leftist pro-bono work. I had to help. But Hardiman also says began volunteering for Ayuda in law school. He can’t blame the firm for that.

Perhaps Hardiman’s views changed. Perhaps he overemphasized this youthful indiscretion’s importance to appear “moderate” in a confirmation hearing.

Unfortunately, however, there are signs that Hardiman brought a softness for illegal aliens to the bench.  Thus in two cases, he overturned the already-overly-permissive Board of Immigration Appeals to grant asylum to illegal aliens under dubious circumstances.

The Board of Immigration Appeals rejected this application on the grounds that you must be persecuted for your opinions, or be a member of a persecuted particular and visible social group, to receive asylum. (Although not mentioned in the opinion, MS-13 likely does not try to recruit teachers or doctors to join the gang, rather than other criminals.)

Here Hardiman signed on to an opinion which greatly expanded the definition of a “social visibility” and “particularity.” Even more absurdly, it allowed for the possibility that opposition to a violent gang was a “political opinion.”  Inasmuch as Latin America is filled with violent cartels and street gangs, this could open the doors of millions of illegal aliens to claim asylum on the grounds that gangs might target them in their home countries.

In this case, a Chinese illegal alien conveniently became a “devout Christian” after his appeal from deportation was denied. This should be laughed out of court. By his own argument, he was not fleeing persecution, but decided to make himself a member of an allegedly persecuted group once he was about to be deported.

Nonetheless, the court overturned the decision of the Board of Immigration Appeals, claiming it had not spent enough time evaluating the Chinese Alien’s arguments that China persecuted Christians.

Hardiman’s defenders could argue that these decisions were administrative law cases, ultimately determined on very technical grounds. But many important immigration cases, like US v Texas (in which Judge Andrew Hanen blocked Obama’s DAPA program)were ultimately decided on otherwise mundane administrative provisions.  [The U.S. Supreme Court’s Big Immigration Case Wasn’t About Presidential Power, by    Peter M. Shane, Atlantic, June 28, 2016]

Moreover, if Hardiman stretches the law to grant relief to people that even the Bush and Obama administration wanted deported, imagine how much he could obstruct Trump.

Ryan Lovelace noted Hardiman’s record represents “a different approach to illegal immigration than the one President Trump espoused on the campaign trail” [Get to know Supreme Court short lister Thomas Hardiman, Washington Examiner, January 26, 2017].

Admittedly, two asylum cases and some pro bono work in law school does not guarantee Hardiman will be bad on immigration. However, given the stakes, we cannot afford to take any chances at all.

Immigration patriots need to let Trump know that he must pick a reliable Justice.

John Reid [email him] is an American citizen and a recent law school .