In January 2018, Judge Michael Kanne received an unexpected call from the White House. Kanne, an Indiana native who sits on the 7th Circuit Court of Appeals, was then 79 years old.
Under leadership of Don McGahn, the White House counsel’s office was focused almost singularly on filling the federal bench with conservative judges, and in Kanne, Trump’s lawyers had spotted an opportunity to nudge out an old-timer and lock in a conservative who could serve on the federal bench for decades to come. Rob Luther, a McGahn deputy responsible for nominations, had phoned Kanne to suggest he retire. Luther told the judge the White House had a successor in mind: Tom Fisher, Indiana’s solicitor general and a former clerk for Kanne.
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“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. “On the consideration that he would be named, I sent in my senior status indication to the president.”
Taking the status, a form of semi-retirement for judges, would allow Kanne to continue working while creating a vacancy on the bench for Trump to fill. It seemed like the perfect plan — until Vice President Mike Pence’s aides got wind of it and scuttled Fisher’s nomination, according to five people familiar with the events.
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.
The clash provides a rare glimpse into the vice president’s political calculations and ambitions, which he has been excruciatingly careful to conceal since signing on to the Trump ticket in the summer of 2016.
In this case, Pence’s private political considerations cost the administration a chance to elevate a fresh conservative to the federal bench when Kanne, who was nominated by President Ronald Reagan in 1987, revoked his senior status upon learning that Fisher wouldn’t be nominated to replace him.
“A number of weeks later, I got a phone call from [Fisher] saying, ‘It’s off, I’m not going to be named,’” Kanne said. “And I said, ‘If you’re not going to be named, then I’m not going to take senior status.’”
The virtually unprecedented move turned heads in legal circles at the time, but the backstory went unreported.
Pence almost never airs any disagreements with the president, even in private, and lavishes him with praise in public. Since Trump’s inauguration, he has worked to position himself as the president’s natural heir.
Like most vice presidents, he has packed his calendar with political events, but Trump’s disinterest in some of the routine aspects of coalition building have provided an opening for Pence to build his own base of support.
Pence has regularly hosted dinners at the Naval Observatory for conservative movement leaders and played a central role in convening White House gatherings focused on religious liberty and opposition to abortion.
He also has embraced the role of sweet-talking deep-pocketed GOP benefactors, serving as the chief conduit between the administration and Republican donors the president has shown little interest in cultivating.
Pence has remained heavily involved with judicial nominations in his home state, and 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, particularly Paoletta, who had a fraught relationship with McGahn.
Of particular concern to the vice president’s team was Fisher’s involvement in the litigation surrounding Pence’s attempt to stop Syrian refugees from settling in Indiana after the November 2015 terrorist attacks in Paris — a move that ultimately was knocked down in court.
A three-judge panel on the 7th Circuit ripped into Fisher’s defense of the Pence policy in an unusually vicious manner when he attempted to convince the court that the state had a legitimate concern about the federal government’s ability to vet Syrian refugees — and that they should instead be sent to other states.
“Honestly, you are so out of it,” Judge Richard Posner, who has since retired from the bench, told Fisher during the proceeding. “You don’t think there are dangers from other countries?” The Pence administration was handed a stinging legal defeat in September 2016, while the then-governor was on the campaign trail with Trump.
Pence had been elected governor of Indiana in November 2012, following stints as a radio talk show host and a member of Congress. His tenure in Indianapolis was tumultuous and hit a low point in the spring of 2015 when he signed the Religious Freedom and Restoration Act, a move cheered by religious conservatives but slammed by liberals and many businesses. A fix to the law passed by the Indiana Legislature left both groups unsatisfied, and Pence was in the midst of a difficult reelection battle when Trump tapped him as his running mate in July 2016.
Fisher, who became Indiana’s first solicitor general in 2005 under the state’s previous Republican governor, Mitch Daniels, continued on under Pence.
“The political issues that had been very controversial in Indiana while Pence was governor Fisher had also been very involved in because he was solicitor general, and that nomination would reignite those battles — and they could potentially embarrass the vice president,” said a former administration official involved in the conversations surrounding Fisher’s potential nomination.
Fisher did not respond to a request for comment.