Michigan's Larsen falls short of High Court pick

Melissa Nann Burke
The Detroit News

Federal appeals court Judge Joan Larsen of Michigan fell short of a nomination to the U.S. Supreme Court after rising to secure a spot on President Donald Trump's short list in recent days. 

Trump announced Saturday at the White House that he picked Judge Amy Coney Barrett to replace Justice Ruth Bader Ginsburg. Ginsburg's death Sept. 18 set off a debate over whether the Senate should fill the vacancy so close to the November presidential election. 

Trump indicated earlier this week that Larsen was on his list of five he was considering for the High Court. Larsen was also among the judges whom Trump looked at to replace Justice Anthony Kennedy when he retired in 2018.

Barrett, who sits on the 7th U.S. Circuit Court of Appeals, appeared on the same panel as Larsen before the Senate Judiciary Committee in 2017. 

Judge Joan Larsen in 2015

Both women are viewed as conservative jurists, but in 2017, Barrett took the bulk of questioning from skeptical Democrats, who focused in part on her writings on law and religion.

Barrett’s ability to counter the attacks made her appealing to Republicans, said Carl Tobias, an expert in the judicial selection process at the University of Richmond School of Law.

Barrett also participated in more high-profile cases on the 7th Circuit than Larsen did in the 6th Circuit, and that situation helped raise Barrett’s profile, he said. 

"There was little that Larsen could do to counter that, and some was just luck of the case draws that their respective courts addressed and their random panel assignments," Tobias said. 

"None of this reflects badly on or is a criticism of Larsen, who is a well-respected jurist but just had fewer opportunities to be in the limelight."

Trump tapped Larsen, 51, for the 6th Circuit U.S. Court of Appeals in 2017 when she served on the Michigan Supreme Court. She was confirmed by the Senate in a bipartisan vote of 60-38 with the support of Michigan U.S. Sens. Debbie Stabenow and Gary Peters, both Democrats.

Larsen once clerked for Justice Antonin Scalia, is a member of the conservative Federalist Society and taught at the University of Michigan Law School.

She had volunteered for Joe Biden's unsuccessful presidential campaign in 1987 in Iowa, her home state, according to the questionnaire that she completed for the Senate Judiciary Committee. 

She had described her role in the campaign in the summer of 1987 as "minor," saying she recalled doing "low-level volunteer" work such as stuffing envelopes and making phone calls for Biden, then a Delaware senator and now the Democratic presidential nominee running against Trump.

Larsen also volunteered in 1996 for a Republican presidential candidate, Bob Dole, for whom she edited or drafted "white papers/position papers from facts supplied by the campaign," according to her questionnaire.

Earlier this week, Republicans said they secured the 51 votes they will need to ensure Trump's nominee gets a confirmation vote in the Senate this year, after Michigan native Sen. Mitt Romney, a Utah Republican, announced his support.

Senate Democrats have strongly opposed the GOP plan to move ahead with a vote on Trump's nominee before the election in a chamber where Republicans hold a slim majority. 

Peters, D-Bloomfield Township, said the GOP is trying to "rush a nominee through what should be a deliberative process," and that the selection should wait until after Inauguration Day next year. 

"Jamming the Supreme Court nomination through now will without question further divide our country and disregard the fact that the American people are now voting, or soon will be in many states," Peters said Tuesday on the Senate floor.

"Americans should have a voice in selecting who will choose the next nominee — a nominee who, if confirmed, will serve for a lifetime."

Stabenow, D-Lansing, said what’s at stake in the Supreme Court fight is health care for millions of Americans, since the justices are set to hear arguments a week after the Nov. 3 election over the constitutionality of the Affordable Care Act, the federal health care law known as Obamacare.

The lawsuit was brought by Republican attorneys general and has the support of the Trump administration in urging the high court to overturn the law.

“What happens in the next few months in terms of filling another Supreme Court vacancy, as well as what happens in the election, could have life and death consequences for Michigan families and families across the country,” Stabenow said on the Senate floor.

“In case anyone has forgotten, we’re in the middle of a once-in-a-lifetime pandemic. … This is not the time to be ripping health care away from American families. There’s never a good time. But certainly not now. But that’s exactly the scenario we could be facing.”

Michigan Republican Party Chair Laura Cox said Friday there is a desire among Trump supporters to fill Ginsburg's seat.

"I've been touring around the state for the past two weeks, and people are excited," Cox told reporters on a call. "There's been chants at rallies that I've been to. People understand it's the president's obligation, and they support his choice."

Former state Attorney General Bill Schuette, a Republican, said there's "plenty of time" for the Senate to consider and vote on the nominee.

"This is going to fire up our base across the country to support the responsibility of the Senate and the president to make the nomination and confirm," Schuette said on the call. “It will be jet fuel on our base."

Michigan Judge Raymond Kethledge, who also serves on the 6th Circuit U.S. Court of Appeals, has also been on Trump's list of potential Supreme Court nominees, as has former Michigan Supreme Court Chief Justice Bob Young.

Young, 69, told The Detroit News this week that he was "too old and too male" to be considered for Ginsburg's seat.