Article: Fisher’s defense of Pence policies cost him 7th Circuit bid

July 12, 2019

Behind-the-scenes maneuvering by the Trump Administration to elevate Indiana Solicitor General Thomas Fisher to a seat on the 7th Circuit Court of Appeals was apparently quashed by Vice President Mike Pence, according to a story published online Friday by Politico.

According to the article, the White House counsel’s office, lead by then-attorney Don McGahn, wanted Judge Michael Kanne to retire so his seat could be filled by a younger conservative judge. In January 2018, conversations began with Kanne, now 80.

The Indiana native told Politico that he told the White House he would consider taking senior status if Fisher — his former law clerk — was nominated as his replacement. However, Pence derailed the effort because, according to Politico, he did not want a public rehashing of the social-conservative controversies his administration was embroiled in during his time as Indiana governor.

Contacted by Indiana Lawyer, Fisher declined to comment on the story and Kanne did not return a phone call.

“I had not intended to take senior status because that wasn’t my plan, but if I had a former clerk who had the chance to do it, then I would,” Kanne said in an interview, Politico reported. “On the consideration that he would be named, I sent in my senior status indication to the president.” The article says Kanne withdrew his senior status request after the deal soured.

Politico reported that according to five people familiar with the plans, “Pence’s aides got wind of the plan and scuttled Fisher’s nomination.” The report further said “neither McGahn nor his deputies had consulted with the vice president’s office before striking the tentative deal with Kanne, a breach of protocol that rankled Pence and his aides.”

Fisher joined the Indiana Attorney General’s office in 2001 and became the state’s first solicitor general in 2005. A graduate of Wabash College and Indiana University Maurer School of Law, Fisher had the challenge of establishing the duties and responsibilities of solicitor general.

“I didn’t want this to be a position that becomes in any way identified with me in the future,” Fisher said in a 2008 article for the Wabash College alumni magazine. “I just want this to be a solid stable position that has a well-defined role within the office. I’ll do the best I can to map that out and develop it even more.”

As solicitor general, Fisher is often before Indiana and federal appellate courts defending the state’s laws or policies. He was often out front, defending the Pence administration’s most controversial policies and sometimes enduring withering attacks from the judges of the 7th Circuit.

In 2014, Indiana appealed the overturning of its ban on same-sex marriage and Fisher unsuccessfully argued the state’s case at the 7th Circuit. Now-retired 7th Circuit Judge Richard Posner, in particular, was skeptical and kept pushing the solicitor general on how the ban was hurting the children in same-sex families.

“What horrible stuff,” Posner said to Fisher during oral arguments in the case. What benefits to society in barring gay marriage, he asked, “outweighs that kind of damage to children?”

Fisher tangled with Posner when the Pence Administration tried to ban Syrian refugees from being settled in Indiana.

At one point, Posner quarried Fisher, “Are Syrians the only Muslims Indiana fears?” Fisher responded, “This has nothing to do with religion” which caused Posner to retort, “Oh, of course it does.” The two then engaged in a heated exchange for which Fisher was admonished for arguing over Posner.

“Attempting to argue over a judge is not a productive method of argument,” Posner’s fellow panelist, Judge Frank Easterbrook, advised Fisher.

The Religious Freedom Restoration Act that Pence singed in 2015 ignited a national firestorm when it was widely interpreted as allowing discrimination against members of the LGBTQ community. Legal scholars, including several professors from Indiana law schools, warned of the potential consequences of RFRA, and Indiana University Robert H. McKinney School of Law had to cancel the annual Birch Bayh Lecture when the speaker declined to appear because of RFRA.

Fisher was never called upon to defend the law. The Indiana General Assembly quickly adopted an amendment that was touted as fixing RFRA, but the legal community believed the courts would still have to grapple with issues raised by the law.

Also, the fix apparently put Pence in hot water with religious conservatives.

Pence was tapped to be vice president in the summer of 2016, but Fisher has continued to defend the former administration.

As governor, Pence signed the House Enrolled Act 1337 in 2016, which limited access to abortion. The ACLU of Indiana and Planned Parenthood of Indiana and Kentucky filed two separate lawsuits challenging different provisions in the law.

PPINK and the ACLU argued in the first lawsuit that HEA 1337 violated the Constitution by placing a prohibition against terminating a pregnancy because of the race, gender or genetic anomaly and by requiring that fetal remains be either buried or cremated. In the second complaint, the nonprofits asserted the law’s requirement that women seeking an abortion have an ultrasound at least 18 hours prior to the procedure created an undue burden. 

Fisher represented Indiana’s position when the U.S. District Court for the Southern District of Indiana blocked key provisions from being enacted. The 7th Circuit affirmed the district court’s rulings but in a per curiam decision, the Supreme Court of United States upheld the fetal disposition provision of HEA 1337. 

Fisher previously was among 15 applicants interviewed for a seat on the Indiana Supreme Court in 2016, but he was not among the three finalists the Indiana Judicial Nominating Commission presented to Pence for his appointment. Pence appointed Geoffrey Slaughter to the bench, replacing retired Justice Brent Dickson.


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