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None of the eight justices currently sitting on the U.S. Supreme Court served on state supreme courts before being nominated to the court. But that could change soon, as several of the potential nominees on the lists released by President-elect Donald Trump hail from state supreme courts – including Joan Larsen, a justice on the Michigan Supreme Court.

The 48-year-old Larsen has solid conservative bona fides and mixes roots in the heartland – she received an undergraduate degree from the University of Northern Iowa – with serious Washington-insider credentials. After graduating first in her class from Northwestern University’s law school (like retired Supreme Court Justice John Paul Stevens before her), Larsen clerked for Judge David Sentelle of the U.S. Court of Appeals for the District of Columbia Circuit and then for Justice Antonin Scalia on the Supreme Court.

After a stint in private practice in the Washington office of Sidley Austin, Larsen served as a deputy assistant attorney general in the Department of Justice during the George W. Bush administration. Larsen worked in the Office of Legal Counsel, which provides legal advice to the president and the executive branch. During Larsen’s time at OLC, other lawyers in the office authored memos that provided advice on and justification for interrogation techniques such as waterboarding and sleep deprivation. When Michigan Governor Rick Snyder nominated her to serve on the Michigan Supreme Court in 2015, Larsen told reporters that she had not played any role in the creation of the memos, explaining that “those national security measures in the Justice Department were classified.” Larsen apparently served as co-author of a March 2002 memo that addressed whether detainees in the war on terror could go to court to challenge their detention, but the memo itself has not been made public.

After leaving the Bush administration and Washington, Larsen taught at the University of Michigan Law School, where she also served as special counsel to the law school’s dean. The school’s website lists courses on criminal procedure and legislation and regulation as courses that she taught recently.

When Larsen was up for re-election in November 2016, she was endorsed by The Detroit News, the Michigan Farm Bureau, and the Fraternal Order of Police. She captured nearly 58 percent of the vote in her race against Democratic and Libertarian candidates, allowing her to serve out the two years that remained in her predecessor’s term when she resigned; she will need to run again in 2018 for a full eight-year term.

Larson’s paper trail as a state supreme court justice is thin. During her short tenure on the bench, she has not addressed any hot-button issues. If she were nominated to succeed Scalia, that could be both an asset and a liability: Democrats might lack ammunition to oppose her (although they would certainly attempt to attack her service in OLC), but it might also not assuage the concerns of conservatives, who have vowed to avoid “another David Souter” – a justice who was nominated by President George H.W. Bush in 1990 but was considered a reliable vote for the court’s liberal bloc by his 2009 retirement.

Larsen’s most notable action as a state supreme court justice may have come in December of 2016, when she announced that she would recuse herself from two appeals involving efforts by Green Party presidential candidate Jill Stein to seek a recount in Michigan. Larsen explained that she did not recuse herself “lightly.” However, she noted, because she had been included by President-elect Donald Trump on his list of potential nominees, she believed that her “appearance on the president-elect’s list and his presence as a party in these cases creates a conflict requiring my disqualification.”

Beyond her legal opinions, Larsen’s paper trail is similarly slender but right-leaning. In 2012, she donated $500 to Mitt Romney’s presidential campaign. She is listed as an “expert” on the website of the Federalist Society, a conservative legal group, and has moderated panels organized by the group. However, when she was nominated to the Michigan Supreme Court, she indicated that she wasn’t sure whether she is actually considered a member of the Federalist Society.

Larsen’s campaign website contains a section labeled “Judicial Philosophy,” in which she writes that “judges should interpret the laws according to what they say, not according to what the judges wish they would say. Judges are supposed to interpret the laws; they are not supposed to make them.” Although Larsen does not say so expressly, that view is popular among conservative jurists and scholars – including Chief Justice John Roberts, who famously pledged during his confirmation hearing to “remember that it’s my job to call balls and strikes and not to pitch or bat.”

Larsen’s other writings, although few, also reflect a conservative bent. In 2004, she published an article in the Ohio State Law Journal on the Supreme Court’s use of foreign and international laws to interpret the U.S. Constitution. Suggesting that it “would be an understatement in the extreme to call the Supreme Court’s decision in Lawrence v. Texas” – in which the justices, by a vote of 6-3, struck down a Texas law criminalizing consensual private sexual activity by same-sex couples – “revolutionary,” Larsen criticized the majority’s failure to offer “a thoughtful and thorough justification” for its reliance on international law. “Until they do,” Larsen asserted, “it seems we are better off to abandon this particular use of foreign and international law.” And in a 2006 op-ed for The Detroit News, Larsen defended then-President George W. Bush’s use of signing statements against a resolution by the American Bar Association that decried them as “contrary to the rule of law and our constitutional separation of powers.” Those statements had included one that accompanied Bush’s signature on legislation, introduced by Sen. John McCain, that would bar U.S. officials from torturing detainees; Bush had indicated that he could waive the ban to protect the country from terrorist attacks. Larsen wrote that the “presence of a signing statement only gives notice of the president’s view of his constitutional commitment, and giving notice is usually thought to be a good thing.” Addressing the anti-torture signing statement, Larsen interpreted Bush’s comments to signal that, “if circumstances arose in which the law would prevent him from protecting the nation, he would choose the nation over the statute” – an expansive view of the president’s power.

That broad view of executive power could appeal to Trump, as could Larsen’s relative youth and the fact that she would succeed Scalia, for whom she clerked. However, it is not clear whether she has the kind of cheerleaders within the Trump team that, say, Judge William Pryor of the U.S. Court of Appeals for the 11th Circuit (another judge on Trump’s list) has in Senator Jeff Sessions, the Alabama senator whom Trump intends to nominate to serve as attorney general. She should therefore be considered a strong candidate, but not necessarily a front-runner to fill Scalia’s slot.

Larsen is married to Adam Pritchard, a Michigan law professor who teaches corporate and securities law. The couple live outside Ann Arbor with their two children, who attend public schools. Larsen maintains a Twitter account, although she is not as prolific with her tweets as another state supreme court justice on the Trump shortlist, Justice Don Willett of Texas. Larsen’s Twitter feed reveals that she is an avid Michigan football fan and includes pictures of her with Michigan coach Jim Harbaugh.

Posted in Featured, Profiling potential nominees to succeed Justice Scalia

Recommended Citation: Amy Howe, Potential nominee profile: Joan Larsen, SCOTUSblog (Jan. 9, 2017, 3:40 PM), http://www.scotusblog.com/2017/01/potential-nominee-profile-joan-larsen/