Then, two years into his tenure, in a case that was widely expected to lead to Roe v. Wade's reversal, Souter voted to save it, albeit in diminished form. Over the course of the next few years, Souter evolved into a reliable liberal, forming a bloc with Stevens and Clinton appointees Ruth Bader Ginsburg and Stephen Breyer. For conservatives, and in particular pro-lifers, it was a stunning betrayal, one that hardened their conviction to only appoint solid conservatives with track records to prove it from thereon out. The Souter fear was crucial in sparking a backlash to Harriet Miers, George W. Bush's 2005 nominee to replace Sandra Day O'Connor, who wound up having to withdraw after conservatives judged her too wishy-washy to be trusted. Now, some conservatives are expressing concern that Third Circuit Court of Appeals Judge Thomas Hardiman, widely believed to be one of Trump's likely picks for the Supreme Court seat, could be Souter 2.0. Sure, he was appointed twice (first to district court, then the court of appeals) by George W. Bush. Yes, he has pretty solidly conservative track record of decisions on crime and gun rights. But some conservative activists are petrified nonetheless: Decision Desk HQ Erick Erickson So what gives? Why is a two-time Bush appointee generating these kinds of jitters?

Hardiman is a reliable conservative…

He has a mixed record on the First Amendment, but it's mixed in a way that should be amenable to conservatives. He sided with an anti-abortion protester who was convicted of violating the terms of a permit and interfering with agency function after he refused orders from park rangers to leave a sidewalk in front of the Liberty Bell Center, and dissented to side with a mother and son who had been barred from reading from the Bible in a kindergarten "show and tell" session, arguing that barring religious texts infringed on free speech and religious liberty rights. He wrote an opinion striking down a Philadelphia charter provision barring donations from police officers to the police union's PAC; while pro-union, the implication of the ruling is that he's sympathetic to First Amendment challenges to campaign finance regulation, challenges like Citizens United. On the other side, he sided against the NAACP in a case where it tried to place an ad criticizing mass incarceration in the Philadelphia airport, writing, "I view the City's restriction a reasonable attempt to avoid controversy at the airport." He dissented in a case involving a middle school that banned breast cancer awareness bracelets reading, "I ♥ boobies! (KEEP A BREAST)"; the court ruled that the middle schoolers had a First Amendment right to wear the bracelets, whereas Hardiman wrote in dissent that "the Majority's approach vindicates any speech cloaked in a political or social message even if a reasonable observer could deem it lewd, vulgar, indecent, or plainly offensive."

…but there are a number of red flags for GOP activists

Donald Trump with his sister Maryanne Trump Barry in 2008. Ed Jones | AFP | Getty Images

So what's not to love? Well, for one thing, there's Hardiman's reported backer: his Third Circuit colleague Maryanne Trump Barry, the president's sister. Barry has fairly strong Republican bona fides. She was first appointed to a district court by Ronald Reagan, and then picked for the Third Circuit by Bill Clinton as an attempt to balance out some Democrats he was appointing. Matthew Stiegler, who runs the Third Circuit–focused blog CA3, has described her as a "moderate-conservative Republican centrist." But a lot of conservative activists hate Barry, mostly for a 2000 ruling she made overturning New Jersey's ban on so-called "partial-birth" abortion. Barry argued that the ban was unconstitutionally vague, potentially encompassing many other types of abortion clearly protected under Roe. The decision also came down shortly after Stenberg v. Carhart, a Supreme Court case striking down a nearly identical Nebraska law. For that reason, even Samuel Alito, then on the Third Circuit, concurred in Barry's judgment. That said, because Barry argued in her opinion that the ban was arbitrary for its focus on cases where fetuses are partially outside the uterus, many pro-lifers attacked her for, in the words of Ramesh Ponnuru, "beginning to rationalize a constitutional right to commit and procure infanticide." It makes sense that anyone Barry endorses might, from the perspective of someone who thinks of her as an infanticide apologist, be suspect by extension.

After the psychological scarring Republicans have suffered from William Brennan and David Souter (and, to a lesser extent, Anthony Kennedy), the idea of a Court nominee who doesn’t have ‘set ideas about particular hot-button issues’ makes me nervous. Allahpundit Conservative blogger

The influential pseudonymous conservative blogger Allahpundit, in an otherwise quite positive piece on Trump's shortlist, flagged as concerning this quote from a Pittsburgh Post-Gazette profile of Hardiman: Richard Heppner Jr., who went to Harvard Law, served as one of four law clerks for Judge Hardiman in 2010. The one-year appointment, he said, was a great experience. "Every day, there was thoughtful, careful attention to the law and arguments," he said. The judge, he continued, was conscientious and strove to get the law right, while adhering to the Constitution and precedent. Although Judge Hardiman tends toward conservative values, Mr. Heppner said, those don't color his work on the court. "I don't think he really has set ideas about particular hot-button issues that would lead him to pre-judge a case that came before him," he said. "True, you don't want a justice 'prejudging' cases," Allahpundit writes. "But after the psychological scarring Republicans have suffered from William Brennan and David Souter (and, to a lesser extent, Anthony Kennedy), the idea of a Court nominee who doesn't have 'set ideas about particular hot-button issues' makes me nervous." There are a handful of Hardiman decisions, flagged by SCOTUSblog's Howe, that defy conservative orthodoxy by siding with claims of discrimination from marginalized groups. He wrote an opinion allowing a gender stereotyping claim from a self-described "effeminate" gay man, concluding that he was "harassed because he did not conform to [his employer's] vision of how a man should look, speak, and act." He ruled in favor of African-American firefighters challenging a fire department's residency requirement, on the grounds that it was a form of discrimination against black firefighters not living in the overwhelmingly white area served by the fire department. He noted that while only 3.4 percent of the population covered by the department is black, 0.62 percent of the firefighting force is, concluding, "minority workforce representation that low suggests discrimination." He's also ruled in favor of a Honduran asylum seeker fleeing gang violence, a decision that has already earned him the enmity of the pro-Trump white supremacist site VDARE. Finally, an influential measure of judicial ideology — the Judicial Common Space score — places Hardiman somewhere between John Roberts and Anthony Kennedy: that is, right in the middle of the Court. That suggests he's far to the left of Antonin Scalia, whom he would be replacing. Ben Casselman tweet

Why the Hardiman = Souter arguments don't make sense