Trump’s fed court nominee Larsen ‘on fast track’

Jonathan Oosting and Melissa Nann Burke,

President Donald Trump on Monday nominated Michigan Supreme Court Justice Joan Larsen for the federal appeals court bench — a pending promotion for a jurist whose star has quickly risen inside the Republican Party.

White House spokesman Sean Spicer said Larsen would fill an opening on the U.S. Circuit Court of Appeals for the 6th Circuit. She and Minnesota Supreme Court Justice David Stras, a nominee for the 8th Circuit, were among 21 individuals who Trump said he would consider for the U.S. Supreme Court during the presidential campaign.

Larsen and Stras were among nine selections the president made Monday to fill various federal court vacancies.

“These highly respected people are the kind of scholars that we need to preserve the very core of our country and make it greater than ever before,” said Spicer during Monday’s news briefing, quoting a Trump campaign statement from September.

The 6th Circuit in Cincinnati has jurisdiction over district courts in Michigan, Ohio, Kentucky and Tennessee. Larsen would replace Michigan Judge David McKeague, who is taking “senior status,” a form of semi-retirement.

Since Trump named Larsen among his possible U.S. Supreme Court nominees last year, legal experts speculate the appellate seat is Larsen’s stepping stone to the High Court.

“She’s sort of being seen as being on a fast track in that regard. Putting her on the 6th Circuit is possibly positioning her for a nomination in case something opens up upstairs,” said Brian C. Kalt, a professor at Michigan State University College of Law.

Larsen, 48, is a former University of Michigan law professor and Federalist Society member who clerked for conservative U.S. Supreme Court Justice Antonin Scalia, who died last year and whose seat was filled by Justice Neil Gorsuch.

Larsen’s 17-month stint on the state Supreme Court will leave a relatively short paper trail of opinions for critics to dissect during the confirmation process.

“I think she’ll be a fairly uncontroversial nominee in the pattern of the Gorsuch nomination,” said lawyer Clifford Taylor, a former chief justice of the Michigan Supreme Court.

Scalia comparison

Like Scalia, Larsen is a textualist — interpreting the law based on the statutory language and not legislative history or purpose, Taylor said.

“I never signed on for the job of philosopher king,” Larsen told The News last year. “If I thought I was any good at crafting policy, I would be in a different branch of government.”

And while Larsen considers Scalia among her role models, she does not share his proclivity toward stinging prose.

“I’ll say one thing that I said to his face many times — I think his pen was a little too sharp,” she said in 2016. “He knew that I was never quite sure why he took the tone that he did in some of his opinions. That’s not my approach.”

Hours after her nomination Monday, 32 law professors at UM — including several liberal voices — wrote to urge Michigan Democratic Sens. Debbie Stabenow and Gary Peters to support her nomination, praising Larsen’s “top-flight legal analysis,” her personal integrity and collegiality.

“Not all of us share Justice Larsen’s views on judicial methodology. But every single one of us agrees that she will be an outstanding federal judge,” they wrote. “For those of us who have found ourselves on the opposite side of a debate with Joan about a case, a statute or some broader issue of constitutional history, she has demonstrated time and again that she is both a gracious and an intellectually honest partner in the collaborative project of figuring things out. What matters for Joan is not winning, but working out the right answer.”

The assessment was echoed by Michigan Supreme Court Justice Bridget McCormack, who has known Larsen since they both started teaching at UM in 1998.

“She is incredibly principled,” said McCormack, who was nominated to the court by Democrats. “... She shows up to each conference and each case call having done a lot of hard work, having lots of thoughtful questions and ready to engage.

“She’s willing to listen and change her mind — or change your mind when she has a good argument — in just a lovely, collegial way. Never raises her voice. Never tries to persuade with anything other than good arguments.”

Gov. Rick Snyder appointed Larsen to fill a vacancy on the Michigan Supreme Court in September 2015. She won a partial, two-year term last fall and can seek re-election to a full eight-year term in 2018.

“Justice Joan Larsen has brought to the Michigan Supreme Court a lifetime dedicated to legal scholarship, regard for our Constitution and abiding respect for the rule of law,” Michigan Supreme Court Chief Justice Stephen Markman said Monday. “We plan to take full advantage of her judicial insights and contributions until she is finally confirmed by the United States Senate.”

Mich. ramifications

Larsen clerked for Judge David Sentelle of the U.S. Court of Appeals for the District of Columbia Circuit from 1993-94 and then spent a year clerking for Scalia before entering private practice at the Chicago-based Sidley & Austin LLP in the firm’s constitutional, criminal and civil litigation section in Washington.

She also served as a deputy assistant attorney general for the U.S. Department of Justice from January 2002 to May 2003 under President George W. Bush, advising the White House on constitutional and statutory law.

Larsen taught for 10-plus years at UM; her interests included constitutional law, criminal procedure, statutory interpretation and presidential power.

Larsen and her husband, UM law professor Adam Pritchard, have two school-aged children and, as of last year, resided in Scio Township.

Larsen’s nomination, if confirmed by the U.S. Senate, would help solidify the Republican majority on the 16-member federal appeals court. There are three vacancies on the 6th Circuit. Seven Republicans and six Democrats currently sit on the court.

Larsen’s departure to the federal appeals court would create a second vacancy on the state high court. Former Chief Justice Bob Young resigned last month.

Her departure would give Snyder a chance to shape a majority of the seven-member high court. The Republican governor already appointed justices Brian Zahra and David Viviano, and the two vacancies give him a chance to select four justices total. Snyder is expected to name Young’s replacement as soon as Tuesday.

MSU’s Kalt said he knows Larsen from his time as a summer associate at Sidley & Austin when she also worked there.

“She’s generally a reliable conservative in the judicial sense,” Kalt said. “Judicially, she’s more likely to try to limit the decision to what she thinks the law requires rather than taking a more expansive view of what the law might be.”

Larsen has written four Michigan Supreme Court opinions during her year and a half on the bench, including a unanimous decision Monday that the state Department of Health and Human Services did not reasonably accommodate a woman with an intellectual disability who had her parental rights terminated but was seeking reunification with her two children.

Larsen recused herself from a presidential recount case late last year because Trump had listed her as a potential judicial candidate.

Her highest-profile opinion, published in April 2016, was in a case in which the state court unanimously held that a staffer for Republican former U.S. Rep. Thaddeus McCotter could be tried on a felony charge for faking voter signatures on nominating petitions the day before they were due.

McCotter campaign district director Paul Seewald was accused of conspiring to commit a legal act in an illegal manner but, “in an anomalous reversal of roles,” he argued that he conspired to commit an illegal act illegally, and therefore could not be prosecuted under the statute.

“The irony is not lost on us,” Larsen wrote in an opinion reversing a ruling from the Michigan Court of Appeals.