Larsen’s Record, Nomination Raise Serious Questions

WASHINGTON, D.C., July 18, 2017 – Alliance for Justice today released a report on the record of Joan Larsen, an associate justice on the Michigan Supreme Court, who has been nominated for a seat on the United States Court of Appeals for the Sixth Circuit. Among other details AFJ has noted in her record, Larsen once authored a memo, while working in the Office of Legal Counsel (“OLC”) under President George W. Bush, regarding the habeas corpus rights of detained prisoners. The content of that memorandum has yet to be disclosed. AFJ believes that under no circumstances should Larsen’s nomination proceed until the content of the memo has been provided to senators who must evaluate her nomination.

AFJ President Nan Aron released the following statement:

“There are several troubling aspects about Joan Larsen’s nomination. First, she was nominated in a very irregular way – without any attempt at the customary traditional consultation with her home-state senators, which sets off alarm bells. In addition, Larsen’s name was plucked from the list of recommended Supreme Court nominees that President Trump obtained from The Federalist Society, and he claimed his nominee would ‘automatically’ overturn Roe v. Wade. She also has written about presidential power in a way that suggests she may be willing to give free rein to some of the most extreme impulses of President Trump. We can’t afford to let that happen.”

Among other things, the AFJ report notes:

• The content of a memo that Larsen authored while working in the Office of Legal Counsel (“OLC”) under President George W. Bush, regarding the habeas corpus rights of detained prisoners, has been withheld. Larsen’s nomination should not proceed until her work on this critical issue, touching upon issues of executive power, can be properly evaluated. In a similar situation involving an Obama judicial nominee who had written a memo at OLC that had not been disclosed, then-Ranking Member of the Senate Judiciary Committee, Chuck Grassley, demanded disclosure, stating, “The Senate simply cannot evaluate whether this nominee is fit for lifetime appointment to one of the nation’s most important courts without complete access to his writings.”
• Larsen praised the use of presidential signing statements by George W. Bush, claiming that: “Denying the president a constitutional voice is the real threat to our system of separated powers. . . . If circumstances arose in which the law would prevent him from protecting the nation, he would choose the nation over the statute.”
• Throughout her career, Justice Larsen has written about and advocated for originalism. This view potentially calls into question her commitment to civil rights for African Americans, women’s rights, and LGBTQ rights. The concern is exacerbated by Larsen’s vociferous praise of her former boss, Justice Scalia, who consistently ruled against voting rights, the right to choose, and granting even the most basic protections to LGBTQ individuals.
• As a state supreme court justice, Larsen failed to give Obergefell v. Hodges full effect, refusing to review an appellate court decision which declined to grant parental visitation rights to a lesbian mother.
• Larsen took issue with the Supreme Court’s decision in Lawrence v. Texas, which struck down discriminatory sodomy laws, writing that “it would be an understatement in the extreme to call the Supreme Court’s decision in Lawrence v. Texas revolutionary.” Although her writing focused on whether international law could be applied to a U.S. case, she called the Lawrence decision “remarkable” and asserted that it “should alarm us” that the majority allegedly cited international norms without what she considered a sufficient explanation.

AFJ believes that Larsen has the burden to show that she would be an eminently qualified jurist, and to address questions on all the foregoing issues.