Michigan's Kethledge on Trump's short list for Supreme Court

Melissa Nann Burke and Beth LeBlanc
The Detroit News
Judge Raymond Kethledge

Federal appeals court Judge Raymond Kethledge of Michigan has emerged as a top contender for the U.S. Supreme Court, as President Donald Trump considers a nominee to replace retiring Justice Anthony Kennedy.

Kethledge was among four appellate court judges who met with Trump on Monday at the White House, three anonymous sources told the Washington Post. He was also considered a finalist last year for the High Court seat that ultimately went to Justice Neil Gorsuch, according to Bloomberg News.

Indeed, conservative commentator Hugh Hewitt has dubbed Kethledge "Gorsuch 2.0," as a jurist "in the mold of Antonin Scalia" who has consistently ruled in line with the original intent of the Constitution. 

“They are really incredible people in so many different ways, academically and every other way, and I had a very, very interesting morning,” Trump told reporters Monday.

The president spoke to three more potential nominees Tuesday and plans to announce his choice Monday before he leaves on a European trip.

“I think the person that is chosen will be outstanding,” Trump said.

Kethledge lives near Ann Arbor and has served on the 6th U.S. Circuit Court of Appeals  for the last 10 years, appointed by President George W. Bush in 2007 when he was 41.

He is known for penning his own, sometimes sharply worded opinions, once writing that "words matter" when interpreting the law. Kethledge clerked for Kennedy and briefly served as counsel for Ford Motor Co. from 2001-02.

He is among three Michigan current or retired judges on Trump's list of 25 potential Supreme Court picks.

Also on the list are Judge Joan Larsen, a former Scalia clerk who also serves on the 6th Circuit, and retired Michigan Supreme Court Justice Robert Young, who ran for the U.S. Senate as a Republican last year and is now counsel for Michigan State University. 

Michigan has not had a justice on the Supreme Court since President Franklin Roosevelt in 1940 appointed former Gov. Frank Murphy, who served until his death in 1949. 

At age 67, Young is widely viewed by court watchers as too old to be in serious contention. Trump wants a justice who will influence the court for many decades to come. 

Kethledge, 51, and Larsen, 49, are in the target age range for a nominee, have the right credentials and would likely perform well in confirmation hearings, said Richard Friedman, an expert in Supreme Court history who teaches constitutional law at the University of Michigan. 

Trump needs a nominee who can win over moderate Republican Sens. Susan Collins of Maine and Lisa Murkowski of Alaska — who both generally support abortion rights — or earn the support of vulnerable Democrats, Friedman said.

“They’re both people generally of very conservative outlook,” Friedman said of Kethledge and Larsen.

“But I don’t know that either of them have said anything that would be a particular trip wire to arouse opposition.”

Whatever you think of their views, “Larsen and Kethledge are both smart, technically skilled lawyers and judges,” who would do well as Supreme Court justices, said Richard Primus, also a professor at the University of Michigan Law School.

Although Kethledge has significant appeals court experience, he has ruled on fewer controversial issues than other leading candidates such as Judge Brett M. Kavanaugh of the U.S. Court of Appeals for the D.C Circuit, said Carl Tobias, a professor at the University of Richmond School of Law.

Kethledge also has the benefit of being from Michigan — the heartland of America — far from the “swamp” of Washington that Trump often ridicules, he said.

“Some may criticize his opinions as too conservative in areas such as labor and employment,” Tobias said.

“Trump might like Kethledge because he is not from the swamp but does have excellent credentials as a Michigan Law grad and a strong record.”

Personal, professional history

Kethledge was born in Summit, New Jersey, in 1966. His family moved to Michigan, where his father, Raymond A. Ketchledge, worked as a senior executive in the car business, according to Kethledge's book. 

Kethledge earned his bachelor's degree from UM in 1989 and graduated in 1993 from the UM Law School, where he now lectures. 

He practiced law for 15 years including stints at the Detroit firm Honigman Miller Schwartz & Cohn and later at his own firm, Bush Seyferth Kethledge & Paige in Troy.

Kethledge's career included two and a half years in Washington, D.C., serving as counsel to then-U.S. Sen. Spencer Abraham, R-Auburn Hills, including matters for the Senate Judiciary Committee. 

Abraham described Kethledge as someone of honesty, integrity and goodwill, with an "absolutely top-rate legal mind." He recalled phoning Kennedy to recommend Kethledge for a clerkship. 

“I was struck with the fact that when he worked for me, even staff members from the other side of the aisle had high regard for him,” Abraham said. 

"He commanded respect and got respect in return. He just had character and does today. I think he’d be a great selection."

While the Supreme Court has diversity in terms of gender and race, every justice went to Yale or Harvard, Abraham noted.

"The idea of having somebody who went to law school at a state school — although one of the greatest law schools in the country, the University of Michigan —  I think would bring something to the court, as well," said Abraham, a Harvard Law graduate himself. 

"I think having somebody from the heartland is needed because, in any institution of government, it's good for people to know there’s representatives from their part of the world and background. That's another asset he'd bring to that court."

Kethledge's appointment to the 6th Circuit was initially opposed by Michigan's senators, with then-Sen. Carl Levin, D-Detroit, pushing for confirmation of former President Bill Clinton nominee Helene White. 

Kethledge was ultimately confirmed by a voice vote in June 2008 after Levin negotiated a compromise with Bush that also cleared the way for White — a Levin cousin-in-law who had been blocked by Senate Republicans. 

Solitude focus of book

Kethledge has said he learned he was on Trump's initial list of potential Supreme Court nominees while working on a chapter of his book at his "barn office," which overlooks Lake Huron in a forested area of northern Michigan.

"I didn’t know anything about it until it happened. ... The landline phone rang. It was my wife, calling from the gym, where she was on a treadmill. She said, 'I just saw you on TV! You’re on Trump’s list!'" Kethledge told the blog Above the Law last year.

"It was distracting. I really had to get that chapter done in the short time I had up there. So, I thanked my wife for letting me know and went back to work. Fortunately, my cellphone doesn’t work up there."

His book "Lead Yourself First," co-written last year with Michael S. Erwin, focuses on how successful leaders used solitude "to function more effectively."

The book describes Kethledge as a "strong introvert." A hunter and outdoorsman, he sought solitude during law school while fishing on solo camping trips in northern Michigan.

As a law clerk to Kennedy, he would take walks by himself in the U.S. Capitol and Supreme Court building while pondering a case. 

As a judge, Kethledge retreats to his barn office — which has no internet connection — when drafting opinions in "difficult" cases. 

It's unusual for judges to write their own opinions at Kethledge's level, but he says he loves to write and that "judges should do their own work." 

"As with (President Dwight) Eisenhower writing memos to himself, the process of writing makes me think so much harder about the subject than just editing does," he told Above the Law.

"I have more insights about the case or doctrine when I go through the agony of writing the opinion myself." 

Kethledge edits his clerks' drafts of unpublished opinions in a process called "sandblasting," in which he marks and annotates every change to help them learn and improve. 

Notable cases 

Some of Kethledge’s opinions “suggest he’d be more conservative on the big issues," said Philip Pucillo, a professor at Michigan State University College of Law.

Kethledge lacks a record on hot-button issues such as abortion and gay rights, which could help him survive the confirmation process but might damage his chances for the nomination, he said. 

“There’s some uncertainty there,” Pucillo said. “Would he be like his mentor Anthony Kennedy?”

One of Kethledge's most widely read opinions was overturned by the Supreme Court last month in a Detroit case that considered whether investigators' acquiring months' worth of a suspect's cellphone location data constituted a constitutional search.

Kethledge, who wrote the 6th Circuit opinion, said it was not a search, but the High Court disagreed in a 5-4 ruling written by Chief Justice John Roberts in United States v. Carpenter.

In a 2016 case, United States v. NorCal Tea Party Patriots, Kethledge chastised Justice Department lawyers for withholding internal lists needed to determine whether the Internal Revenue Service had discriminated against tea-party groups based on their political views. 

"I will say that, had the groups been socialist, the case would have come out precisely the same way," Kethledge said in December during a speech at UM.

Kethledge could face criticism from labor groups for an opinion he wrote in 2013 upholding Michigan's law banning payroll deductions for union dues for public school employees.

The statute — signed into law by Republican Gov. Rick Snyder — made it costlier and more cumbersome for some unions to collect dues, especially after the state's right-to-work law took effect in 2013.

In that 2-1 ruling in Bailey v. Callaghan, Kethledge rejected the arguments by unions representing Michigan school employees that school districts' failure to collect the dues for unions violated their First Amendment right to free speech. 

“Public Act 53 does not restrict the unions' speech at all: They remain free to speak about whatever they wish," Kethledge wrote.

“Instead, the Act merely directs one kind of public employer to use its resources for its core mission rather than for the collection of union dues. This is not a First Amendment concern.”

The conservative Wall Street Journal's editorial board praised Kethledge for penning the judicial "Opinion of the Year" when he delivered a "legal smackdown" to the Equal Employment Opportunity Commission in 2014. 

Kethledge chided the EEOC for relying on a faulty expert report that claimed that Kaplan Higher Education Corp.'s policy of running credit checks on job applicants had a "disparate impact" on African-Americans. 

He pointed out that the EEOC had sued the defendants for "using the same kind of background check that the EEOC itself uses." 

“The EEOC brought this case on the basis of a homemade methodology, crafted by a witness with no particular expertise to craft it, administered by persons with no particular expertise to administer it, tested by no one, and accepted only by the witness himself," Kethledge wrote. 

He has also voted to uphold the constitutionality of legislator-led prayer, arising from a Michigan case.