NAF TOOK A STAND/JUDICIAL NOMINEES/Michael Fisher/NAF's statement of opposition

National Abortion Federation Opposes The Nomination of D. Michael Fisher to the Third Circuit Court of Appeals

The National Abortion Federation opposes the nomination of D. Michael Fisher, Attorney General of Pennsylvania, to the Third Circuit Court of Appeals, which encompasses Delaware, New Jersey, and Pennsylvania. During his time as a public figure, Fisher has demonstrated an ultra-conservative agenda including extraordinary efforts to restrict the reproductive freedoms of Pennsylvania's women. Additionally, Fisher is a litigant in a case that is pending before the Third Circuit, presenting a clear conflict of interest. This gross impropriety, coupled with Fisher's record of extreme politics and lack of judicial experience, make him unqualified to serve as a federal appellate court judge.

Throughout his career, Fisher has fought against a woman's right to choose.

Fisher's nomination is another example of the Bush administration's anti-choice and anti-woman agenda. His nomination to the Third Circuit Court of Appeals appears to have been based solely on his history of opposition to women's reproductive rights.¹ In fact, Pennsylvania's two Republican senators, Arlen Specter and Rick Santorum, suggested four women for this judicial post, each of whom was rejected by the Bush administration.²

Fisher has repeatedly voiced his opposition to a woman's right to choose. He has stated "abortion is wrong and every life is sacred, born or unborn."³ Fisher also believes that state governments need to limit access to abortion and promote abstinence.⁴

He has stated:

[A]bortion is becoming no more than just a form of family planning by those people who are seeking it. . . . The more accessible abortions are-there's no question in my mind-the stronger the likelihood there is a mother will seek that alternative first before looking at other alternatives. . . . [It is] my belief that all life is sacred."⁵

As a legislator, Fisher's actions were driven by his personal beliefs. He voted for the Pennsylvania Abortion Control Act, which required a 24-hour waiting period, parental consent, reporting requirements, biased counseling, and required that a married woman obtain the consent of her spouse before having an abortion. The spousal consent requirement was later invalidated by the U.S. Supreme Court.⁶

Fisher also drafted a state bill that would have prevented public school officials from "arranging, facilitating or counseling an abortion" to a student. Had this legislation been passed, it would have prevented school counselors from discussing legal abortion as an option with young women. Fortunately, the bill was never introduced by anyone in the Pennsylvania legislature.⁷

While serving on the Pennsylvania Board of Pardons, Fisher refused to clear the record of a man who was convicted of assisting a female friend in obtaining an abortion at a time when abortions were illegal.⁸ He later changed his vote following critical editorials and letters.⁹

When running for governor, Fisher stated an ongoing intention to be "an advocate for life." Fisher has expressed support for the federal so-called "Partial Birth Abortion" ban that will be challenged as soon as it is signed into law.¹⁰ The U.S. Supreme Court found a state version of this law unconstitutional in 2000.¹¹ Additionally, Fisher has divulged that he believes access to contraception should be limited.¹² Fisher also opposes public assistance to those who need help in getting abortions.¹³

Fisher has a clear conflict of interest that should be resolved before he is considered for a seat on the Third Circuit.

In February of this year, a federal jury determined that Fisher and other defendants had violated the civil rights of two state narcotics agents and awarded $1.5 million in damages. Of that amount, $225,000 in actual and punitive damages were assessed against Fisher personally for his role in the retaliation.¹⁴ A spokesperson for Fisher has stated that the Attorney General's office plans to appeal the verdict.¹⁵

If appealed, this case would be heard by the Third Circuit, the very court to which Fisher is nominated. The pending lawsuit and troubling issues it raises make Fisher's nomination inappropriate at this time. Depriving employees of their civil rights is an extremely serious matter that demands thorough investigation and consideration. The transcript of the trial itself is more than 1,000 pages, and the jury's verdict is to be reviewed by the trial court as well as the court of appeals. Fisher should not have been nominated until this matter was resolved, and the Committee should wait until the case is concluded and it has the opportunity to review the entire case history in order to assess Fisher's fitness for a lifetime judicial appointment. It would be unprecedented for a nominee to be confirmed to a court in which he is a litigant in a pending case.

Conclusion

When addressing the complex issues seen in the federal appellate courts, judges must be objective in reaching their decisions. Otherwise, personal beliefs contaminate the even-handed rule of law, and the rights of Americans are forfeited. D. Michael Fisher has demonstrated his lack of respect for many of the freedoms that Americans take for granted. Moreover, Fisher has no experience in objective judicial decision-making. Fisher is another example of a candidate who is endorsed and supported by the Bush administration solely for his extreme views. His nomination to the Third Circuit Court of Appeals would place the rights of Americans in jeopardy.

1. Editorial, Fisher as an Appeals Judge, The Harrisburg Patriot, Apr. 30, 2003 ("What we find perplexing - and more than just a little disturbing - is that the abortion issue was put forward by the Bush Administration as the sole litmus test."); Peter L. DeCoursey, Fisher Nominated to 3rd Circuit Court, The Harrisburg Patriot, Apr. 29, 2003 ("Statewide GOP sources said Bush insisted on a nominee who was likely to be confirmed and opposed abortion.")
2. Gar Joseph, "Fisher to Become Federal Judge: PA Senators Wanted a Woman, But White House Rejected Their Choices," Philadelphia Daily News, Apr. 11, 2003, Pg. 12.
3. "Mike Fisher and Ed Rendell," WITF Debate Transcript (Oct. 24, 2002).
4. Id.
5. Pennsylvania Catholic Conference, "Interviews with Gubernatorial Candidates" (available at http://www.pacatholic.org/election%20archive/fisher.htm)
6. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).
7. Matt Archbald, "Activist Seeks an Ally on Abortion Legislation," Philadelphia Inquirer, Sept. 3, 1999, Pg. B01.
8. Westchester Coalition for Legal Abortion, "Pardon Denied for Aiding Abortion in 1961" (available at http://www.wcla.org/99-spring/pardon.html)
9. Charles Thompson, "Tobacco Settlement Tops Fisher's Achievements," Harrisburg Patriot, Oct. 29, 2002.
10. Mike Fisher for Governor, "Who Will Protect Life?" (http://www.mikefisher.com/files/life.pdf - no longer online). As Attorney General of Pennsylvania, Fisher joined an amicus curiae brief in Stenberg v. Carhart (Carhart I) arguing for the constitutionality of Nebraska's Partial Birth abortion ban. National Jewish Democratic Council, "Voter Guide: Pennsylvania Governor" (available at http://www.njdc.org/political.php)
11. Stenberg v. Carhart, 530 U.S. 914 (2000).
12. Interview with the Catholic Archdiocese of Philadelphia.
13. Mike Fisher for Governor, supra note 10.
14. Micewski v. Fisher, No. 3:00-CV-0521 (M.D.Pa. Feb. 12, 2003) (special verdict judgment).
15. "Jury Gives Award to Drug Agents Transferred After Accusations," New York Times, Feb. 13, 2003, at A35.

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