POTUS election could have ‘huge’ impact on Mich. judges

Jennifer Chambers, and Jim Lynch
DetroitNews

They are both Michigan judges who clerked for a justice on the U.S. Supreme Court and have dedicated their lives to the law.

Supreme Court Justice Joan Larsen pauses for a picture outside the Michigan Supreme Court chambers on Wednesday in Lansing.

The next step in their careers, depending on who wins the presidency in November, could be a job on the U.S. Supreme Court.

Last month, presumed Republican presidential candidate Donald Trump took the unusual step of releasing a list of 11 names he said represent his preferences for a potential nominee for the country’s highest court. On that list was Michigan Supreme Court Justice Joan Larsen and U.S. Court of Appeals Judge Raymond Kethledge.

“It came as a complete surprise to me. I had no idea that was coming,” Larsen said in a recent interview with The Detroit News.

“We’d been having a portrait ceremony for Justice (Michael) Cavanagh, who retired from the bench. Right before it began, my phone just started ringing and buzzing.”

Larsen is relatively new to the judiciary, having just been appointed to the Michigan Supreme Court in October by Gov. Rick Snyder. Kethledge, meanwhile, was appointed in 2008 by President George W. Bush to the appeal’s bench based in Cincinnati.

A ‘whirlwind’ since selection

A former University of Michigan law professor who clerked for the late Supreme Court Justice Antonin Scalia, whose death this spring created the current opening, Larsen has said Scalia and U.S. Appeals Judge David Sentelle, for whom she clerked, helped launch her legal career and were among several key role models.

Larsen, 47, had no prior judicial experience before joining the Michigan Supreme Court in 2015. She was special counsel to the UM law school dean and a deputy assistant U.S. attorney general in 2002-03, who provided legal counsel in President George W. Bush’s Department of Justice.

Larsen told The News the months since Snyder tabbed her to fill a vacant seat on the state’s Supreme Court have been a “whirlwind.”

“My job is to faithfully interpret the work of the Legislature and to try and communicate to our judgments as clearly as possible,” Larsen said in describing her approach.

She said ruling on what’s included in legislation should take priority over reading into what is not.

“I never signed on for the job of philosopher king,” she said. “If I thought I was any good at crafting policy, I would be in a different branch of government.”

One area where Larsen tries to be apart from Scalia is tone. Known for his wit and his withering criticisms, verbally and on the page, Scalia often came across to the public in a manner drastically different from his demeanor behind the scenes.

“I’ll say one thing that I said to his face many times — I think his pen was a little too sharp,” Larsen said. “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.”

At the moment, Larsen is preparing to embark on her first political campaign to fill the final two years of the seat vacated by retired Justice Mary Beth Kelly.

Should she be successful, Larsen faces the prospect of running for re-election again in 2018. It’s a daunting scenario for a political newcomer, but her time on the bench since October has convinced Larsen this is where she wants to be.

And while she “would never say never,” the prospect of stepping away from what she has in Michigan, including residence near Ann Arbor, right now is not particularly attractive.

“Honestly, I love this job — that’s not even some talking point,” she said. “I love this job, and I want to keep this job. My kids are in school here in Michigan, and my family is here in Michigan.”

Kethledge

‘Straight shooter’

Kethledge is a judge on the U.S. Court of Appeals for the Sixth Circuit, which hears appeals from the federal district courts of Michigan, Ohio, Kentucky, and Tennessee. He clerked for U.S. Supreme Court Justice Anthony Kennedy and Judge Ralph B. Guy Jr. of the U.S. Court of Appeals for the Sixth Circuit.

Kethledge also worked in the U.S. Senate, serving as counsel to then-Sen. Spencer Abraham, handling matters related to the Senate Judiciary Committee. Later, with two partners, he founded the Bush Seyferth & Paige law firm in Troy.

He did not respond to multiple requests for an interview.

Kethledge’s former law partner, Patrick G. Seyferth, said the two met at UM Law School in the early 1990s and became partners in 2003 when the boutique firm was founded.

Seyferth spoke at Kethledge’s investiture and said Kethledge is a “great guy, straight shooter, a normal person.”

He recalled a time in law school when he tried to give Kethledge advice.

“I remember trying to give him some advice on constitutional law. He got an award in the class. He didn’t need the advice,” Seyferth said.

While he worked at the Troy firm, Kethledge dedicated himself to pro bono service and charitable causes, earning the Community Legal Service’s Pro Bono Attorney of the Year award for his work with the disadvantaged in Michigan.

“He is a very giving person and somebody who is always very fair-minded. Extremely high character kind of person who was also very down to earth,” Seyferth said. “Even now as a 6th Circuit Judge, which puts him at a pretty high level, he doesn’t want people to call him judge.”

Kethledge, 49, who lives in Oakland County, and is married with children, actually writes his own opinions, which Seyferth said is not typical at the federal appeal’s court level in which career law clerks often handle the job.

“Ray is writing opinion from start to finish. He takes pride in authoring them,” Seyferth said.

In fact, an opinion Kethledge wrote in 2014 about a case on the Equal Employment Opportunity Commission was named the Wall Street Journal’s Opinion of the Year. The newspaper described the opinion as a “hilariously caustic rebuke” of the commission by Kethledge.

“The EEOC had sued Kaplan, the for-profit education company, for using ‘the same type of background check that the EEOC itself uses,’ as Judge Raymond Kethledge cheekily put it in the first sentence of his ruling in EEOC v. Kaplan,” the WSJ wrote.

U.S. District Judge Avern Cohn sat with Kethledge on the Eastern District bench in Detroit for a day in April. It was a special invitation for appeals judges and district judges to work together.

“(Kethledge) calls them as he sees them,” said Cohn, who is the most senior judge in the Eastern District of Michigan. “Kethledge would be the right of (former U.S. Supreme Court justice) John Paul Stevens. There is nothing right wing about Kethledge.”

‘A perfect clone for Justice Scalia’

Michigan Supreme Court Justice Bridget Mary McCormack met Larsen when both women joined the faculty at the University of Michigan Law School in 1998.

McCormack said Larsen, who taught criminal procedure, was a popular professor for good reasons.

“She cares about and takes the teaching part very seriously. She treated students with respect and kindness. She was generous to a fault with her time and patience and cared about making sure students had their questions answered,” McCormack said.

On the state court bench, where the justices do their work sitting around a conference table speaking face to face and then collaborate in emails and over the phone, Larsen has thrived in the collegiate environment where relationships matter and make the court effective and productive, McCormack said.

“She is terrific. She is serious. She really digs in and does her work. She is respectful and kind. She is made to serve on the court like this,” she said.

Michigan Court of Appeals Judge Peter O’Connell described Larsen as brilliant, personable and easy to talk to.

“She is very articulate and carries herself extremely well. She hasn’t got any trappings of being a judge or having an attitude,” O’Connell said. “She has a great sense of humor and has a great personality. Some judges weren’t given that gift.”

Larsen, who is married with children, is cut from the mold of Scalia, a textualist, O’Connell said. Compared to her peers on the bench, Larsen is a traditional conservative, he said.

“She interprets the law as it is written. She will apply the law. She could be a perfect clone for Justice Scalia,” he said.

Nicholas Bagley, professor of law at the University of Michigan Law School, worked with Larsen at the Justice Department in Washington, D.C. before he worked with her again on the faculty at UM Law School in 2010.

Her place on Trump’s list is no surprise to Bagley but likely the result of Trump turning to the D.C. legal establishment and asking who is the best in the nation.

“Joan’s name was at the top of the list,” Bagley said.

jchambers@detroitnews.com