Bench Memos

Law & the Courts

Misguided ‘Pro-Life’ Attack on Trump Supreme Court Candidate Joan Larsen

A second Trump Supreme Court candidate whom Andy Schlafly flatly declares to be “NOT pro-life” (his emphases) is Michigan supreme court justice Joan Larsen.

Schlafly charges that Larsen was

[1] a feminist law professor who declared recently that there is sexism in law; [2] she has repeatedly mentioned Roe v. Wade without criticizing it; she clerked for Justice Scalia but many of his clerks were not pro-life; she has no federal judgeship experience and [3] is similar to David Souter in her weakness in writing ability, which makes her susceptible to influence by the liberal media.

Let’s examine the charges I’ve numbered:

1. I’ll start with Schlafly’s reference to Larsen as a “feminist law professor who declared recently that there is sexism in law.” I’ve known Larsen for years—among other things, we were fellow deputies in DOJ’s Office of Legal Counsel in the George W. Bush administration—and I’m especially surprised to see her called a “feminist law professor.” At Michigan law school, she taught criminal procedure and legislation, not “Feminism and the Law.” And she’s written law-review articles and book reviews bearing such titles as “Importing Constitutional Norms from a ‘Wider Civilization’: Lawrence and the Rehnquist Court’s Use of Foreign and International Law in Domestic Constitutional Interpretation” and “Constitutionalism Without Courts?” Her beautiful New York Times tribute to Justice Scalia sounds this very non-feminist note:

I am often asked what it was like to be a woman clerking for Justice Scalia. “Much like being a man clerking for him” is my easy answer. 

As Schlafly’s hyperlink reveals, here’s all that underlies his statement that Larsen “declared recently that there is sexism in law”: As an invited speaker at a Michigan Women’s Commission meeting, Larsen, when asked about dealing with sexism in her career, “acknowledged that sexism still exists in the career of law” and “commented that she had two choices—to get angry at a sexist comment or to laugh at it, and she chose to laugh.” She hardly sounds like the stereotypical feminist. Indeed, if you had given me that quote blind, I might have guessed that Phyllis Schlafly (Andy’s late mother) spoke it. Does Andy Schlafly really think that the belief that some “sexism still exists in the career of law” is controversial and that such a belief somehow counts as evidence that a person is “not really pro-life” or not anti-Roe?

2. I don’t know what Schlafly is referring to when he complains that Larsen “has repeatedly mentioned Roe v. Wade without criticizing it.” When and where has she “repeatedly mentioned Roe”? And if Schlafly is going to disqualify her for not having openly criticized Roe, shouldn’t there be a lot more names on his “unacceptable” list?

3. Schlafly’s charge that Larsen “is similar to David Souter in her weakness in writing ability, which makes her susceptible to influence by the liberal media” is badly confused (and poorly written). Having reviewed her work with care when we were colleagues in OLC, I can attest that she is a fine writer. Schlafly doesn’t even bother to try to provide any support for his contrary claim.

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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