Bush's Chosen One

Spend time in Downtown's federal courthouse, and you notice something: It's often silent. Unlike the bustling Common Pleas Court a few blocks down Grant Street, the halls of justice that run most of the length of the U. S. Post Office and Courthouse are almost churchlike. There are rarely cops here, or drug dealers, or neck-braced car crash victims. You only occasionally see a lawyer, reporter or judge. Don't mistake that serenity for inconsequence, though. You don't vote for the judges that reign here, and you might never venture into a federal courtroom. But lawsuits that affect your rights as a worker, tenant, voter, arrestee, worshiper or unbeliever are decided here. Sometimes those cases are appealed all the way to the U.S. Supreme Court, and become the law of the land. It's here that the Constitution is tested, interpreted and defined.

This is where Thomas Michael Hardiman wants to work. Hardiman, 37, is President George Bush's choice for a lifetime appointment to a federal court judgeship for the Western District of Pennsylvania, which covers one third of the state, including Pittsburgh, Johnstown and Erie. He's widely considered a bright lawyer. And he's got political ties to top local Republicans and Democrats that would normally grease his path through the U.S. Senate, which rejects or confirms all federal judge nominees.

But two and a half months after Bush anointed Hardiman, the lawyer's nomination is stalled in the Senate Judiciary Committee, and mired in questions. Is he qualified, in light of a lukewarm endorsement by the American Bar Association? Did he forthrightly describe his trial history in biographical information submitted to the Senate? Does the lawyering he's done -- including pitched battles on behalf of landlords accused of discrimination, communities trying to keep out the poor, and a county determined to keep the Ten Commandments on its courthouse walls -- reflect a rigid conservative ideology, or a good attorney's desire to give all comers their day in court?

Hardiman is keeping as quiet as the court he aspires to. The federal Department of Justice, which shepherds judicial nominations, bars nominees from press interviews. But court records, interviews with attorneys who've worked with and against him, and Hardiman's responses to Senate questions paint a picture of a lawyer who could bring energy to the quiet court -- or silence the cries of the less fortunate.



As an advocate, I am required to represent my client zealously within the bounds of the law. & [As a judge] I would faithfully enforce all the laws of the land, including our civil rights and anti-discrimination laws.-- Hardiman, in response to a written question from Sen. Patrick Leahy



An "advocate" is one who pleads in another's favor, especially a lawyer, says Webster's. It can also be one who supports a cause. Hardiman has spent the last 13 years drifting from that first definition to the second. Whether he can change course and become a balancer of the scales of justice is an open question.

According to his nomination application, Hardiman was born in 1965 in Winchester, Mass., a toney Boston suburb. He left the area in 1983 to attend the University of Notre Dame in Indiana, where he graduated with honors after majoring in what the school calls "liberal studies" and Spanish. After a brief stint as a taxi driver and dispatcher back home, he enrolled in Georgetown University's law school in Washington, D.C. In 1990 he passed the bar exam, and landed a job at the Washington office of huge corporate law firm Skadden, Arps, Slate, Meagher & Flom. There he met Lori Zappala, who would become his wife, bring him to Pittsburgh -- and give him instant entrée into the legal and political circles that have made him a nominee for judge.

Lori Zappala is the daughter of Richard A. Zappala, whose real-estate interests include the McIntyre Square shopping center in Ross Township. Her uncle is former state Supreme Court Justice Stephen A. Zappala, whose son and namesake is Allegheny County's district attorney. Another of the former justice's sons, Gregory Zappala, headed up municipal financing firm RRZ Public Markets, until it was purchased by New York-based JP Morgan Chase & Co. in February.

Hardiman married into the politically connected, heavily Democratic clan on Oct. 24, 1992, at Sacred Heart Church in Shadyside. That year, he found work with Titus & McConomy, a firm that typically boasted two dozen lawyers. Many of his early clients were Zappala family-owned companies that were suing or being sued. He became a partner in 1996, and upon that firm's breakup in 1999, he was given the same title at Reed Smith. The move made Hardiman a partner in one of the state's largest and most powerful firms, with nearly 1,000 lawyers, including 225 at its gilded flagship office on Sixth Avenue.

Hardiman registered as a non-partisan voter in 1992, but went Republican in 1994. He began building a bipartisan political network that went far beyond his wife's family. In 1994, at then-City Councilor Dan Onorato's request, he represented the residents of Allegheny Commons East in their effort to keep the federal Department of Housing and Urban Development from allowing very-low-income residents into their North Side community. (Onorato is now county controller and the Democratic candidate for county executive.)

In 1999, Hardiman emerged as a backer of Jim Roddey. He gave the Republican businessman's successful campaign for county executive $8,500, and then co-chaired the exec's transition team. In 2000, he was Roddey's handpicked candidate for treasurer of the Republican Committee of Allegheny County, and won the post.

"Tom, I think, was a major part of the Roddey coalition. That's really how he came on the scene," says Robert Owsiany, former solicitor for the Republican Committee. "He wasn't a long-term conservative activist."

Hardiman quickly became the Republicans' go-to guy when politics and litigation collided. When Democrats drew up a new county council district map that could relegate Republicans to minority status for a decade, he fought their efforts in state and federal courts for 18 months. (The Dems had to change their map, but ultimately won the court battle.) When Democrats sued to knock Moon Republican John Pippy out of a race for state Senate in March, arguing that he could not simultaneously serve military duty and be a political candidate, Hardiman jumped into the fray. "Although there is no good time for a federal court to wade into the political realm of state elections or to infringe on the constitutional separation of powers, this time of imminent war is especially inappropriate," Hardiman wrote in court filings. He prevailed when Secretary of Defense Donald Rumsfeld's office granted Pippy a waiver from the rule that usually bars soldiers from the ballot.

Hardiman's work has impressed many of the lawyers he's worked with or faced off against. "He's honest, he's skilled, he's knowledgeable, he's a fine person," says David Armstrong, solicitor for the Allegheny County Democratic Committee, who sparred with Hardiman in the county council redistricting case.

"I find anyone who wears their politics on their sleeve, Democrat or Republican, as bothersome. And Tom isn't one of them," says Fred Thieman, a lawyer who worked with Hardiman at Titus & McConomy. Thieman, a Democrat, went on to serve as U.S. Attorney for Pittsburgh under President Bill Clinton. "I'd be really comfortable in front of [Hardiman] as a judge," he says.

But some lawyers say Hardiman has occasionally stepped over the legal lines. Attorney Caroline Mitchell battled Hardiman in a housing discrimination case. Mitchell says in a letter to Sen. Patrick Leahy, a Vermont Democrat, that Hardiman issued as many as five subpoenas in that case without informing her. Known as an "ex parte subpoena," that practice has been forbidden since about 1980, because it can allow the lawyer issuing the subpoena to secretly get private information about an opposing party or a witness. In her letter, Mitchell called the subpoenas "a deliberate decision by [Hardiman], to disobey the federal rules to procure documents he was not entitled to have." Wrote Mitchell: "An attorney's inability to read and understand the plain requirements of the federal Rules of Civil Procedure calls into question one's ability to comprehend the complex litigation characteristic of federal courts."

Two other lawyers also told City Paper they objected to Hardiman tactics they thought were overly aggressive, but declined to speak on the record, noting that they may have to handle cases before him if he becomes a judge. "Speaking against a guy who is going to be a federal judge," says one lawyer, "is career suicide."



Plaintiff's claim regarding a "divide" between church and state in the United States is not accurate. Religious principles, ideas, and beliefs have impacted our history and influenced our laws since colonial times.-- From a legal filing by Hardiman and other lawyers in Modrovich vs. Allegheny County, 2001





When atheists Andy Modrovich and James Moore, with help from Washington-based Americans United for Separation of Church and State, sued Allegheny County to force it to take down a plaque listing the Ten Commandments, Roddey put out a call for free legal help. Hardiman answered the call, helping to assemble a team of lawyers to defend the plaque. When asked by the Senate to list "the ten most significant litigated matters which you personally handled," Hardiman listed the Modrovich case second.

"[Hardiman] is friends with Jim Roddey, and when Jim asked [Reed Smith] to get involved, he was a natural, because of his friendship with Jim and his knowledge of First Amendment law," says Perry Napolitano, a Reed Smith lawyer who has worked extensively on the case.

The First Amendment to the Constitution holds that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." According to Modrovich's attorneys, the presence of a Ten Commandments plaque on the Courthouse wall is tantamount to declaring a state religion. Hardiman's team has countered with page after page of photos of government buildings with images of Moses' tablets, quotes from the founding fathers that reference the commandments and famous speeches that cite the Biblical code. "The Constitution no more requires the expungement of public references to the Ten Commandments than it does any other aspect of the heritage we share as Americans," they wrote in court filings.

Sen. Richard Durbin of Illinois has questioned Hardiman's involvement in the case. "Do you believe that every American -- Christian or non-Christian -- has a right to have the tenets of his & religious beliefs displayed in government buildings?" Durbin asked Hardiman in a written questionnaire. Hardiman ducked the question, citing American Bar Association recommendations that nominees not discuss issues likely to come before the courts. "I am not at liberty to express a personal opinion regarding whether every American has a right to post his or her religious beliefs in government buildings," he wrote.

Modrovich isn't the only case Hardiman has worked on that has led senators to question his positions on civil rights issues. In some housing-related cases, he has argued that alleged acts of discrimination didn't necessarily cause damage. He's also made the case that efforts to reverse segregation might cause incalculable harm.

In 1995, Ron and Faye Alexander sought to rent a Squirrel Hill apartment from Joseph and Maria Riga. The Alexanders, who are black, alleged in a subsequent lawsuit that the Rigas refused to show them the Darlington Road apartment, claimed it had already been rented, and only later rented it to someone else. The Fair Housing Partnership of Greater Pittsburgh later sent white and black volunteers to the apartment, pretending to be prospective renters, to gauge the Rigas' reaction. The black tester reported that the Rigas invited her to see the apartment -- but gave her the wrong address.

Hardiman turned the case into a referendum not on the Rigas' behavior, but on the Alexanders' credit history. He obtained evidence that they had defaulted on at least $6,700 in bills. There was no way the Rigas could have known that -- they never did a credit check on the Alexanders. But in his legal motions, Hardiman argued that the Rigas' ignorance of the Alexanders' credit history didn't matter. "The evidence of the Alexanders' abysmal credit is so overwhelming that there can be no genuine dispute that they were not qualified for the apartment," he wrote. A federal jury bought the argument that since the Alexanders wouldn't have gotten the apartment anyway, the discrimination didn't matter; the jury awarded no damages. (On appeal, higher courts ruled that the jury could have awarded punitive damages, and sent the case back for reconsideration. The two sides then reached a confidential settlement.)

In 1996, many Edgewood Borough residents and officials were in an uproar over a Department of Housing and Urban Development plan to buy eight houses and turn them into subsidized housing for low-income families. The eight houses were to be among 100 purchased countywide, as part of a settlement of a court case alleging a history of discriminatory racial segregation in public housing. Edgewood, though, wanted no part of the effort. The borough hired Hardiman, who was fresh from his successful fight against HUD at Allegheny Commons East.

"[T]he influx of public housing units will depress property values," Hardiman wrote in court filings. That would harm Edgewood's tax base, he added. Hardiman's pleadings dismissed out of hand the possibility of HUD making payments to Edgewood to make up for any damage to the tax base. "There is no adequate legal remedy because the damage will be ongoing and, as such, impossible to measure," he wrote. The only solution, Hardiman's filings implied: Put the poor elsewhere. Edgewood lost the case, but political pressure compelled HUD to reduce the number of subsidized homes in the little borough from eight to three.



[The government] has an obligation to law-abiding citizens to not pay for violent criminals to live in their neighborhoods.-- From Hardiman's motions in Beverly Powell vs. Housing Authority of the City of Pittsburgh



Hardiman's efforts also led to rulings that ensure that if the poor aren't good parents, they may lose their Section 8 housing benefits. The federally funded benefit pays 70 percent of a poor family's rent. Beverly Powell used her Section 8 voucher to rent a home in Brighton Heights for herself and three sons, two of whom were teenagers. In August 1998, the two teenage sons saw a car sitting in a supermarket parking lot with the engine running, according to court filings. They jumped in, noticed a 75-year-old woman sitting in the back seat, pepper-sprayed her and kicked her out of the car. Then they took a spin around the neighborhood and abandoned the car. They were later caught and put into the juvenile justice system.

A month later, the Housing Authority of the City of Pittsburgh notified Powell that it was terminating her Section 8 benefits, based on federal regulations allowing it to cut off the subsidy if a resident commits a violent crime in the "immediate vicinity" of their home. Powell got a lawyer and filed an appeal. Common Pleas Judge Stanton Wettick ruled that the crime occurred too far from Powell's home to trigger a benefit cutoff, and ordered the Housing Authority to continue paying the subsidy.

It could have ended there. Instead, the Housing Authority hired Hardiman, who appealed Wettick's decision. At about the same time, court filings by Powell's attorney allege, Hardiman's office arranged for the Housing Authority to pay Powell's subsidy into an escrow account, rather than to her landlord. That prompted her landlord to threaten her with eviction. In an angry court motion, Powell's attorney accused the authority of "attempting to achieve & by deceitful and unlawful means, what it could not achieve on the merits: the eviction, and consequential homelessness, of Beverly Powell and her 10-year-old child."

Attorney Dianna Wyrick, who helped Hardiman on the case, says the lawyers believed they were acting within their rights when they put the subsidy in escrow. She says they thought HUD regulations would bar Powell's landlord from kicking her out. For six and a half months, though, Powell's housing situation hung by a thread, until Wettick ordered the authority to pay back rent. Hardiman appealed Wettick's decisions, losing at every level except the state Supreme Court, where he finally prevailed. Now housing authorities have wider latitude to cut off subsidies when a family member commits a crime.

Some lawyers say Hardiman's clients and arguments may not necessarily shed light on his philosophy. "The fact that one tries a case from one side or the other only means that you're a lawyer," says James "Burt" McConomy, who worked alongside Hardiman at Titus & McConomy. Lawyers take the work that comes their way, and defend their clients to the best of their ability and according to the rules of the court, say McConomy and others.



"Tom has certainly argued discrimination cases from the other side, too," says Paul Titus, also formerly of Titus & McConomy. For instance, in the mid-1990s Hardiman helped Titus in a successful fight to stay the execution of Charles Cross, who was convicted of murdering Denise Lucic of Ambridge and her two children, ages 6 and 3. Titus and Hardiman argued that Cross' original attorney didn't introduce enough evidence of the defendant's troubled childhood, and allowed the jury to be improperly influenced by Cross' prior rape conviction. Cross is still on death row, while the courts weigh his plea to have his sentence reduced to life in prison. Hardiman is no longer involved in the case.

Despite Hardiman's work on the Cross case, some national civil rights groups say his work on housing issues worries them. "Housing discrimination is a particularly insidious form of discrimination, because it affects something we all need," says Marsha Kuntz, director of the Judicial Selection Project at the Alliance for Justice, a liberal group. "We believe that among the criteria that the Senate should consider is whether the nominee has a commitment to equal justice. I think that Hardiman's work on housing discrimination goes against that."

Bush's judicial nominees have generally been panned by liberal groups and Democratic senators alike. "His nominees have been far more ideological then those by recent presidents of either party," contends David Carle, spokesman for Sen. Pat Leahy of Vermont. Leahy, the top Democrat on the Judiciary Committee, has slowed down Hardiman's confirmation process by asking for more time to investigate his qualifications. But with Republicans in control of the Senate, deliberation has been the exception, rather than the rule, says Carle. "The process in recent months has resembled a conveyor belt."

"The federal judiciary has an impact on things like clean water, clean air, what rights [workers] have as employees," says Judith Schaeffer, deputy legal director of People for the American Way, a progressive group. Bush "has certainly been trying to pack [federal] courts with right-wing ideologues who will turn back the clock on civil rights, individual liberties, environmental rights and other things many Americans hold dear."

Such criticisms are "the prerogative of people who label themselves as liberal," says Department of Justice spokesman Mark Corallo. "They are going to have objections to nominees from a Republican administration." The department has complained about the "sluggishness" with which Senate Dems have handled some Bush judicial nominees. So far, though, Hardiman's confirmation process is "right on schedule," Corallo says.

Sen. Arlen Specter, a Pennsylvania Republican who is a member of the Judiciary Committee, did not return multiple calls for comment. Nor did his fellow Pennsylvania Republican, Sen. Rick Santorum.

Democratic senators' efforts to smoke out Hardiman's views on issues like abortion and privacy rights haven't succeeded. Hardiman has said only that he'd abide by existing and future Supreme Court decisions on those topics. Asked by Sen. Durbin about Santorum's comments that a right to consensual, gay sex would be comparable to a right to bigamy, incest or adultery, Hardiman waffled. He answered that he was "not familiar with the full context of [Santorum's] remarks," and couldn't comment anyway, because they were related to a pending Supreme Court case.

Hardiman's unwillingness to comment on Santorum's comments may not be surprising. His ties to the senator are one part of a potent political resume -- one that some observers say is more impressive than his professional credentials.



4. State the number of cases in courts of record you tried to verdict or judgment (rather than settled) &[A]n incomplete record of my cases, indicates 54 cases that have gone to verdict or judgment &-- Question on judicial nomination application, and Hardiman's answer, submitted in May

3. In your questionnaire, you indicate that you have handled 54 cases that have gone to verdict or judgment. How many cases have you tried to judgment?I have tried the following 19 cases to judgment &-- Written question presented by Sen. Edward Kennedy, and Hardiman's answer, submitted in June



For 50 years, presidents, the Senate and the legal community had a system for ensuring that federal judicial nominees were qualified for the job. The president would submit proposed nominees' names to a 15-member committee of the American Bar Association, which would rate them "well qualified," "qualified," or "not qualified." If a nominee's qualifications were questionable, the president could -- and often did -- quietly shelve the nomination.

In 2001, Bush flipped the order. Now, the ABA gets candidates' names only after they are publicly nominated. "The president essentially cut the ABA out of the process when he moved their vetting process to after the nomination," says Schaeffer of People for the American Way. The ABA still interviews nominees and issues ratings.

Of the 61 federal judicial nominees rated by the ABA this year through mid-June, 36 were rated "well qualified" and 24 -- including Hardiman -- were rated "qualified." Just one was rated "not qualified." But Hardiman is just one of just eight nominees who were rated "qualified" with the caveat that one or more committee members judged him "not qualified." (The ABA doesn't release the actual vote counts, nor identify dissenting voters.) Sen. Leahy, the ranking Democrat on the Judiciary Committee, has seized on the "not qualified" vote or votes as a reason for slowing Hardiman's confirmation process.

"I am led to understand that the minority dissent [on the ABA rating committee] was more a personal attack than a reflection on his qualifications," says Corallo, who says he doesn't know the name of any dissenting committee members. "We think that he is fully qualified, as the majority opinion of the ABA rating shows."

In his nomination application, Hardiman's efforts to tout his qualifications may have gone too far for some senators' tastes. Asked how many cases he had "tried to verdict or judgment," Hardiman offered an answer that may have been accurate in a legal sense, but could have misled the casual reader. "[A] few years ago, I began compiling a list of matters I have handled," he wrote. "That list, which is an incomplete record of my cases, indicates 54 cases that have gone to verdict or judgment &"

Many cases go to verdict or judgment without being tried. Attorneys regularly try to have cases kicked out of court long before trial, and those motions are sometimes granted. Sen. Edward Kennedy, a Massachusetts Democrat, picked up on the subtle wording issue and asked Hardiman, in writing, how many cases he had "tried to judgment." The answer: 19.

Nineteen trials in 13 years "is not bad," says Democratic attorney Armstrong. "He's at Reed Smith, and they've got all the finest clients in the land, but they don't take many cases to trial." Most lawyers try to avoid the uncertainties of trials, preferring to get cases thrown out early in the process, or to settle, Armstrong and other lawyers note.

Hardiman's relative youth might be an asset, says McConomy. "It's great that a young person is heading for the bench. ... I really think the energy that's required today is considerably higher than was required 20 or 30 years ago."

Hardiman's political pedigree, however, is beyond question. With ties to the Democratic Zappalas and Republican Roddey, he's got bipartisan juice. Even Onorato and Pittsburgh Mayor Tom Murphy, both Democrats, have written to the Senate in support of Hardiman's nomination.

In addition to his work for -- and contributions to -- Roddey, Hardiman has made $16,500 in federal contributions, including donations to the campaigns of Bush, Santorum, Specter, U.S. Reps Melissa Hart and Tim Murphy, and several failed House candidates from the region. In June 1999, Hardiman may have gotten a little too enthusiastic about Bush. According to Federal Election Commission computerized records, he gave the Bush campaign a $2,000 donation -- double what was then legal for an individual. Bush's campaign returned $1,000 of that in August, according to the FEC database. The same day Bush returned that sum, Lori Hardiman made a $1,000 donation to the campaign.

The nomination "is payback for his work for the Republican Party," says one local attorney who knows Hardiman, and asked not to be named. "This is business-as-usual politics," he adds. "He's there, probably, because he doesn't have much of a paper trail, and he is closely tied to the Republican Party."

Republicans deny that. "Tom Hardiman in my experience has a very solid reputation in this town as a bright, accomplished courtroom lawyer," says Owsiany. "Whoever's opposing this is grasping at straws."

Others just hope the confirmation process weighs all of the issues. "The federal courts are a court system that has as a principal function the protection of citizens' fundamental constitutional rights," says attorney Tim O'Brien, who often handles civil rights cases for plaintiffs and has crossed swords with Hardiman in court. "It's a very important event, the selection of a judge. It should be done carefully."