As a rule, the Republicans’ judicial pipeline works with remarkable efficiency. Partisan operatives tell Donald Trump whom to nominate; the White House sends the nominees to Capitol Hill, and the Republican-led Senate serves as a rubber stamp. The result, as regular readers know, is a largely successful initiative to move the entire federal judiciary to the right.
But once in a great while, a wrench ends up in the machine.
In a small handful of instances, for example, some GOP senators have balked at Trump nominees – in one recent case, because Republicans were concerned the jurist wasn’t far enough to the right.
Politico reports today, however, on an entirely different dynamic, which would’ve been tough to predict: Vice President Mike Pence and his team derailed one of the White House’s own selections.
The backstory seemed pretty straightforward: the White House carefully nudged aside Judge Michael Kanne, an older conservative on the 7th Circuit Court of Appeals, telling him that one of his former clerks, Indiana Solicitor General Tom Fisher, would replace him. The judge agreed, took senior status, and created a vacancy for Donald Trump to fill.
Everything went according to plan, right up until Pence’s office balked and scuttled Fisher’s nomination.
As solicitor general of Indiana, Fisher had defended Gov. Mike Pence’s policies in court, and aides to the now-vice president feared his nomination would dredge up events and information politically damaging to Pence.
In a series of tense conversations with the White House counsel’s office, Pence’s lawyers, Matt Morgan and Mark Paoletta, and his then chief of staff, Nick Ayers, objected to Fisher’s nomination, which died before it ever became a reality. Pence himself was kept apprised of the conversations.
As best as I can tell, this was the first time the vice president’s office thwarted a Trump judicial nominee.
It’s tough to know which parts of Fisher’s work most concerned Team Pence, but the Politico piece pointed to the former governor fighting to block Syrian refugees from settling in Indiana – a policy Fisher unsuccessfully tried to defend.
Regardless of the reasoning, Team Pence apparently came to believe a Fisher nomination would air some dirty laundry from the Hoosier State, so the plan to put Indiana’s solicitor general on the appellate bench quietly went away.
As for Michael Kanne, the 79-year-old judge who was prepared to make way for one of his former clerks, the Reagan appointee also reversed course and effectively un-retired after Fisher was passed over.
Politico added, “The virtually unprecedented move turned heads in legal circles at the time,” and now we know what transpired behind the scenes.