Washington — Michigan Supreme Court Justice Joan Larsen on Wednesday told the Senate Judiciary Committee that she respects the independence of the judiciary and would have no problem ruling against the president who nominated her, Donald Trump.
“I would have absolutely no trouble ruling against the president who appointed me or any successor president, as well,” Larsen said.
“Judicial independence means one very simple thing, and that is putting the law above everything else. Statutes passed by this body and the Constitution of the United States. So I would have absolutely no trouble. Indeed, that would be my duty.”
Larsen, 48, was nominated May 8 for the U.S. Circuit Court of Appeals for the 6th Circuit, which has jurisdiction over district courts in Michigan, Ohio, Kentucky and Tennessee. She previously taught at the University of Michigan Law school for more than 10 years.
Earlier this year, Larsen earned the top rating of well-qualified from the American Bar Association, but her nomination has drawn criticism from several liberal groups, which raised concerns over her affiliation with the conservative Federalist Society and over some of her writings on executive power.
Democrats asked Wednesday about Larsen’s inclusion on candidate Trump’s list of possible U.S. Supreme Court nominees.
Sen. Richard Blumenthal, a Connecticut Democrat, said Trump has communicated that his potential nominees oppose abortion and would vote to overturn Roe v. Wade.
“Do you meet that litmus test?” Blumenthal said.
“I don’t know how I got on that list,” Larsen replied, saying she was surprised when it was released.
“If someone thinks I met that litmus test, I don’t know how they came to that conclusion,” she added.
California Sen. Dianne Feinstein, the panel’s ranking Democrat, said some in her party are uneasy about where Larsen falls on respect for Roe v. Wade.
“As a justice of the Michigan Supreme Court and if I’m fortunate to be confirmed to the 6th Circuit, there’s no opportunity for me to be a ‘no’ vote on Roe,” Larsen said. “I would be bound by the precedents of the Supreme Court of the United States.”
The groups Alliance for Justice and the People for the American Way have expressed alarm over a 2006 Detroit News guest column on President George W. Bush’s use of signing statements to accompany bills he signed into law.
“Larsen’s view of executive power poses a direct threat to the rule of law, an especially serious concern where, as here, we have a president who has already shown his willingness to use the pardon power to nullify judicial enforcement of the Constitution,” Marge Baker, executive vice president at the People for the American Way wrote last week to the Judiciary Committee, urging members to reject Larsen.
Sen. Orrin Hatch, R-Utah, said Larsen’s critics mistakenly described the 2006 op-ed, in which Larsen said a president may only ignore the expressed will of Congress “for one reason alone: Because the Constitution so commands.”
“Can the president ignore a statute just because he wants to do so?” Hatch asked Larsen.
“Absolutely not,” she replied.
Sen. Chris Coons, a Delaware Democrat, quoted a Larsen article from 2004 in which she said it would be an “understatement in the extreme” to describe the high court’s decision striking down a sodomy law in Lawrence v. Texas as “revolutionary.” Coons asked whether Larsen thought the Lawrence court was wrong.
But Larsen was reluctant to discuss the merits of previous Supreme Court decisions, repeating the posture of many nominees before her that she would not take position on whether those cases were rightly or wrongly decided.
“That is because all circuit court nominees, and in my current position as a justice on the Michigan Supreme Court, we are bound by the Supreme Court’s pronouncements,” she said.
Democrats asked about a memo that Larsen wrote when she served as a deputy assistant attorney general in the Office of Legal Counsel from January 2002 to May 2003 under Bush, advising the White House and attorney general on constitutional and statutory law.
The March 2002 memo, which is not public, has to do with the habeas corpus rights of detainees to challenge their detention in a court of law, according to the American Civil Liberties Union, which says it learned of the memo through ongoing litigation.
Larsen told senators Wednesday that the U.S. Department of Justice has claimed privilege over that memo in litigation, so she had an ethical obligation not to disclose it.
“It would not be my place to describe that memo to you,” Larsen said in response to Feinstein.
Under questioning, Larsen said she had no involvement in drafting, reviewing or otherwise contributing to the Office of Legal Counsel’s memos on torture, warrentless wiretapping or the policy of indefinite detention.
“I did not even know they were being produced in our office,” Larsen said of the torture memos, adding that she only learned about them later from newspaper reports when she was back in Michigan as a private citizen.
Early in her career, Larsen clerked for conservative U.S. Supreme Court Justice Antonin Scalia, who died last year and whom Larsen considered a mentor and role model. Legal scholars say that, like Scalia, Larsen is a textualist, interpreting the law based on the statutory language and not legislative history or purpose.
Sen. Mike Lee, R-Utah, said it was “disappointing but perhaps not surprising” that some have criticized Larsen for her association with Scalia. He asked how Scalia’s jurisprudence helped shape Larsen’s approach to the law.
“Justice Scalia believed in following the law where the law led him. He never worked the other way around. That is, find the result that you liked and then find the precedents to fit it,” she said. “The one clear simple rule he taught us was the law governs,” not personal interest.
In the questionnaire that she completed for the Senate panel, Larsen disclosed minor volunteer roles in two presidential campaigns.
In 1987, she volunteered for the campaign of Democrat Joe Biden in Iowa, where she stuffed envelopes, made phone calls and completed other low-level tasks. In 1996, she volunteered for Republican Bob Dole, for whom she edited or drafted position papers based on facts provided by the campaign, she said.
Larsen’s testimony occurred at an unusual hearing where the committee was also considering the nominations of four others, including Amy Coney Barrett, who is nominated for the U.S. Circuit Court of Appeals for the 7th Circuit.
Larsen’s husband, UM law professor Adam Pritchard, and their two children joined her for Wednesday’s hearing. Also in attendance were several former students, as well as Justice David Viviano and Judge David Sentelle of the U.S. Court of Appeals for the District of Columbia Circuit, for whom Larsen clerked from 1993-94.
People for the American Way criticized the manner of Larsen’s nomination, for which the White House — unlike the previous two administrations — did not seek the input of home-state Sens. Debbie Stabenow of Lansing or Gary Peters of Bloomfield Township.
“A president who intends to select a qualified nominee without an ideological agenda would have no need to shut senators out of the process of identifying and evaluating potential nominees,” Baker wrote.
Sen. Sheldon Whitehouse, D-Rhode Island, asked Larsen how she could defend the backing of a “dark money group,” the Judicial Crisis Network, which paid for a $140,000 digital ad campaign in Michigan over the summer urging Stabenow and Peters to support Larsen.
Whitehouse asked Larsen what the Judicial Crisis Network expects in return for that investment.
“I honestly don’t know,” Larsen said, noting she was not made aware of the ads ahead of time.
She offered an example from her two years on the Supreme Court, noting she has ruled about 50-50 in cases with a corporation or insurer on one side and consumers on other, demonstrating no preference for industry.
“If anyone thinks they are buying something in terms of commercial interests, I don’t think my record bears that out,” Larsen said.
Whitehouse said, “Well, we’ll see if they keep spending the money. Because, obviously, they think so. I think it’s the damnedest thing.”
Gov. Rick Snyder appointed Larsen to fill a vacancy on the Michigan Supreme Court two years ago. She won a partial, two-year term in November and could seek re-election to a full eight-year term in 2018 if her nomination is not approved by the U.S. Senate.