I learned over the past year or so that predicting Donald Trump’s next move is often a fruitless exercise. I therefore will not venture a definitive prediction about Trump’s upcoming pick for the Supreme Court. Instead, I will simply say this: keep an eye on Justice Joan Larsen of the Michigan Supreme Court.
In some ways, Justice Larsen looks like an obvious choice to fill Justice Scalia’s seat. She clerked for Scalia (and David Sentelle on the D.C. Circuit), she is a high-profile Republican lawyer who also served in the last Bush Administration, and her appointment would represent one more notable appointment for a Michigander, as Michigan was key to securing Trump’s election — Betsy DeVos (Education) is also from Michigan, and Ben Carson (HUD) grew up here. And she is comparatively young (48).
In other ways, though Justice Larsen might not fit the mold to which we have become accustomed, her appointment would represent a welcome change. Justice Larsen would break the Harvard/Yale stranglehold on the Court. She went to law school at Northwestern, where she was first in her class and won several prestigious awards. Notably, she received her undergraduate degree from Northern Iowa, which would make her the only Justice besides Justice Thomas not to have a bachelor’s degree from either Stanford or an Ivy League school (Thomas has a bachelor’s from the excellent Holy Cross). So her appointment would certainly diversify the educational backgrounds of the current Court. Moreover, like Scalia (and Elena Kagan, on the current Court) she brings the background of a full-time law professor (she taught at Michigan).
Of course, one might consider it a strike against her that she does not serve on a federal court. Federal courts have generally been the proving ground for every appointment since Sandra Day O’Connor, the last appointee to serve on a state court but never a federal court (David Souter served on the New Hampshire Supreme Court, but then served on the First Circuit; Justice Kagan never served as a judge on any court; William Rehnquist had never served as a judge before his initial appointment, but became Chief Justice after 14 years as an associate justice). But that is all the more reason to see Justice Larsen as a potential pick: Trump likes to buck trends and conventional wisdom. Still, in addition to her impressive federal clerkships, she served as a deputy assistant at the Office of Legal Counsel (OLC) and worked at Sidley & Austin, so she has high-level federal law practice experience on her resume. Indeed, the combination of federal and state experience might make her even more desirable.
Of course, it remains true that the likes of judges Diane Sykes and Bill Pryor will continue to garner the lion’s share of attention. But regardless of who it is that ultimately gets the nod for the Court, it is important to remember two other positions that Trump must fill that also can help to shape the Administration’s approach to constitutional law. Trump will need to pick a Solicitor General and the head of OLC. Given Justice Larsen’s previous time as a DAAG at OLC, her background in separation of powers questions, and her current work on a state supreme court, she might be regarded as a good fit for either position. Indeed, President-elect Trump needs to be surrounded by lawyers with, shall we say, heightened knowledge of separation of powers and constitutional structure. And whoever gets SG could be naturally well-positioned for the next SCOTUS opening, should it occur during Trump’s term. So even if Justice Larsen is not Trump’s pick for Scalia’s seat, she remains an attractive choice for other key legal positions in the Administration.
Trump would be wise to make his pick soon. Place the Senate in the position of having to confirm the Cabinet and the SCOTUS pick all at once. Senate Democrats will have limited political capital, and will need to decide where to use it: the appointments for State, EPA, Justice? Or the Court? So long as Trump’s SCOTUS pick is sensible and well-qualified, Democrats may be willing to forego a fight over the Court and focus their resources on a couple of picks for the Cabinet.
Again, this is not a prediction, just an observation: watch for the rise of Justice Joan.