Trump’s Michigan judicial nominee hits a snag

Melissa Nann Burke
Detroit News Washington Bureau

Washington — The Senate Judiciary Committee has not taken up the nomination of Michigan Supreme Court Justice Joan Larsen nearly two months after her selection for the federal appellate bench — a development that concerns her supporters.

The panel is waiting for the go-ahead from her home state senators, Democrats Debbie Stabenow of Lansing and Gary Peters of Bloomfield Township. They are still reviewing Larsen’s nomination, including a Michigan-specific questionnaire that she returned to the senators’ offices last week.

The committee’s custom is not to hold hearings for a judicial nominee until that nominee’s home state senators submit blue slips consenting to their moving forward.

Neither Stabenow nor Peters has publicly raised concerns about Larsen’s selection for the 6th U.S. Circuit Court of Appeals, though other Democrats have.

A spokesman for Committee Chairman Charles Grassley, R-Iowa, noted that Larsen’s nomination materials have been available for review for several weeks, including a 64-page questionnaire received by the committee June 2.

“We are still awaiting word from the home state senators,” said Taylor Foy, a Grassley spokesman. “She is exceptionally qualified and has received the highest marks from the American Bar Association, so her nomination should not be delayed.”

The ABA gave Larsen its top rating of “well qualified.”

The lingering nomination has prompted the Judicial Crisis Network, a conservative political group, to launch a $140,000 digital ad campaign in Michigan last week urging Stabenow and Peters to “end the political games” and support Larsen’s selection.

“Justice Joan Larsen is one of the most impressive lawyers of her generation, yet Sens. Stabenow and Peters are holding up her nomination for petty political reasons,” Carrie Severino, the group’s chief counsel and policy director, said in a statement.

Stabenow said she and Peters are seeking additional input on Larsen’s nomination, including asking bar associations in Michigan for feedback.

“We’ve said nothing at all that would politicize this process,” Stabenow said in an interview.

“The wisest thing for her supporters would be to give us constructive input. We’re in the process of doing our due diligence. It’s a very, very important position, and it’s our responsibility to the people of Michigan to get all the information.”

Lawyers tout Larsen

If they decide to object to her lifetime appointment, it could be the first test of whether Grassley will honor the blue-slip tradition for federal appellate court seats, said Carl W. Tobias, a law professor at the University of Richmond who studies the federal judiciary.

“There will be increasing pressure from Republicans to move” on Larsen, Tobias said. “I don’t see anything extraordinary about the time so far, but at some point I think Republicans will start to question the timeline.”

The other test case could be Minnesota, another state with two Democratic senators who have not yet returned blue slips for Trump’s pick for the 8th Circuit — Minnesota Supreme Court Justice David Stras. He was nominated the same day as Larsen.

Both Larsen and Stras were on the list of potential U.S. Supreme Court nominees that Trump released during his campaign. Some Democrats have criticized the list because it was drafted with help from the conservative Federalist Society and Heritage Foundation.

Larsen, 48, is a former University of Michigan law professor and Federalist Society member who clerked for the late U.S. Supreme Court Justice Antonin Scalia.

A group of 32 UM law professors, including several well-known liberal thinkers, have written to Stabenow and Peters, hailing Larsen’s “top-flight legal analysis,” personal integrity and collegiality. They said she would be an “outstanding federal judge.”

Republican Rep. Tim Walberg, who counts Larsen among his constituents, said he has spoken to both senators about Larsen and hopes they move the process along.

“I understand that they have to do their due diligence but, personally, I see it hard to find any significant negatives on this particular nominee, unless you want to make it a political problem — and they’ve not given me that impression,” Walberg said.

“I’m taking them at their word. They both said they’re going to take it seriously.”

Surprise White House move

The White House traditionally consults with senators before selecting judicial nominees, but Trump’s White House notified the senators’ offices without seeking input on Larsen.

The University of Richmond’s Tobias said the lack of consultation could be adding to the time the senators need to review the nominee.

“If the White House would consult, then maybe the senators would sit down with the nominees or candidates beforehand,” he said. “I would put some of that back on the process in the White House, which could have made it much smoother.”

Tobias noted that the prior administrations of Democrat Barack Obama and Republican George W. Bush consulted with senators in advance when they could.

“It’s a piece of patronage in some ways, but also gives the people a voice, so you don’t just have the president nominating but talking back and forth with the senators to try to reach some agreement, if possible,” he said.

There are 20 vacancies in the regional circuit courts of appeals — roughly 12 percent of 163 seats.

The blue-slip tradition, which dates to 1917, is the only leverage that the minority party has to oppose nominees since 2013 when Democrats changed the rules to end the 60-vote threshold for most nominations.

Some Republicans have argued that Grassley should honor the blue-slip custom for district court seats but not appellate judgeships. Democrats note that Sen. Pat Leahy, the Vermont Democrat, abided by the tradition when he was Judiciary Committee chairman.

“I think the blue slip is more respected for district court judges historically than it has been for circuit,” Grassley told CQ Roll Call and the Associated Press in May.

“I mean, this is going to be an individual case-by-case decision, but it leads me to say that there’s going to have to be a less strict use or obligation to the blue slip policy for circuit, because that’s the way it’s been.”

Tobias said four appeals court nominees last year never got Senate hearings because a Republican senator never returned their blue slip, including Senate Majority Leader Mitch McConnell.

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