Trump hopes to build on political momentum from Kavanaugh confirmation in 2019

close

Video

Trump apologizes to Kavanaugh on behalf of American people

President Trump says Supreme Court Justice Brett Kavanaugh faced 'historic scrutiny' and was 'proven innocent'; Peter Doocy reports from the White House.

Of all the tumultuous tussles in Donald Trump's Washington  -- a government shutdown, abrupt staff departures, and the Russia probe -- none perhaps was more bitter, yet more significant, in the long-run than the confirmation of Brett Kavanaugh to sit on the U.S. Supreme Court.

2019 promises more drama -- on and off the bench.

The justices are confronting a number of immigration-related legal challenges that could be added to the docket in coming months -- and the president sees the high court's shaky conservative majority as his best shot at upholding a top political and national security priority. This after the lower federal courts have all but eviscerated his immigration agenda.

“This case will be settled by the United States Supreme Court!" Trump tweeted in October about his plans to end birthright citizenship for children born in the United States to unauthorized immigrant parents.

Other pending court challenges where the justices could soon decide include religious freedom, healthcare, gerrymandering, abortion and transgender military members. And it will be the court's newest member who could have unusual sway over the docket.

"Before he joined, this was a court that was evenly split 4-4 on many of the most intractable constitutional issues," said Thomas Dupree, a former top Justice Department official in the Bush administration. "I think you're going to see a concerted effort by the lawyers in these cases to try and pick off that fifth vote from Justice Kavanaugh, making arguments that will appeal to him."

And after two high court confirmations in Trump's first two years, the White House is quietly hoping for more.

Despite a recent Senate slowdown, Senate confirmations of the president's judicial picks overall have been brisk in 2018. Judge Jonathan Kobes took the bench two weeks ago in St. Louis, Trump's 30th federal appeals court nominee, far ahead of the pace of his recent predecessors.

COURTING KAVANAUGH

The 114th justice has kept a pretty low personal and professional profile since barely surviving a Senate vote in early October. But that could change in February when the court will hear arguments in a pair of high-wattage cases: a war memorial in the shape of a Christian cross that sits on public land; and an executive power fight over plans to add a citizenship question to the 2020 census.

Those appeals will test Justice Kavanaugh's reliably conservative credentials. But a look at two recent orders issued by the Supreme Court reflect the unpredictable nature of internal deliberations on issues that have yet to reach the merits stage.

Earlier this month, the justices turned down an appeal backed by 13 states that sought to block Medicaid money from Planned Parenthood. Chief Justice John Roberts and Kavanaugh joined their more liberal colleagues in signaling they were not anxious to revisit the abortion controversy.

The judicial order kept in place lower court rulings preserving money for a range of reproductive health services offered by the nation's largest abortion provider. Although no federal funding is permitted for the procedure itself, several state legislatures sought to restrict all of Planned Parenthood's taxpayer revenue.

Three conservatives, led by Justice Clarence Thomas, blamed his benchmates for allowing a "politically fraught issue" to justify "abdicating our judicial duty."

Yet just days later in a separate order, Kavanaugh sided with conservatives in an emergency government appeal over immigration. At issue was a federal judge's ruling halting enforcement of Trump's plan to deny asylum to migrants crossing the U-S border illegally. The Justice Department asked the high court to intervene and allow the policies to move ahead, for now.

They were on the losing side, however, as Roberts again stood with the left-leaning bloc to keep the injunction in place.

Both the abortion and asylum issues could be back at the high court in the near future, when the constitutional issues would be at stake. And so court watchers say it is too early to read much now into Kavanaugh's jurisprudence now, since none of the current temporary orders set any precedent.

RIPPING ROBERTS

As buoyant as the White House may be for Kavanaugh's long-term impact, it is the chief justice’s evolving power base that most concerns the president and his allies.

It all came to a head when Trump last month criticized District Court Judge Jon Tigar, who imposed the injunction on the migrant asylum policy -- slammed by the president as an "Obama judge."

That prompted a rare rebuke from a sitting member of the high court. Roberts in a statement said, "We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for."

The back-and-forth continued with Trump saying "Sorry Chief Justice John Roberts, but you indeed have 'Obama judges.'"

Court sources say the whole episode has left a bad taste among the nine-member bench, which tries to insulate itself from the partisan slings occupying much of the capital.

Roberts' role as head of all the federal courts has led him to quietly promote judicial independence and consensus. But more practically, the July retirement of so-called "swing" Justice Anthony Kennedy has sparked unwanted debate that the chief justice is prepared to become the chief decider, using his influence to cobble together malleable majorities on both left and right, on those hot button issues that most divide the bench.

The New York Times recently suggested Roberts was an "isolated figure" on the court, scorned by the left and right, and that Kavanaugh could emerge as the chief's ideological "friend."

Some liberal leaders hold out tenuous hope Roberts takes a more active role as that "swing" vote – but there is conflicting evidence he would drift left with abandon.

That has those on both sides feeling frustrated.

"Chief Justice John Roberts is not your resistance hero," said Meagan Hatcher-Mays of DemandJustice.org, the group behind the Stop.Kavanaugh.com ad campaign opposing the nominee. "The Supreme Court is extremely partisan, in large part due to John Roberts himself."

And Trump himself has danced warily around Roberts. As a presidential candidate he whipped up his base on the campaign trail by repeatedly calling his judicial counterpart an "absolute disaster," "disappointment," and "nightmare"-- for the chief's 2012 blockbuster decision upholding Obamacare's chief funding mechanism.

But the president's real anger is aimed at an entire region: the 9th Circuit, which includes federal district courts and an appeals court in nine western states. Judges there have repeatedly struck down the president's policies, especially on immigration and border security, including the travel ban, sanctuary cities, and DACA. But those Trump setbacks -- as well as other nationwide issues like the environment and transgender people in the military -- are not confined to the 9th Circuit.

He calls that appeals court "a big thorn in our side" and promised to "file a major complaint" against some of its decisions, although it was not clear what Trump meant or what he could do.

"We get beaten, and then we end up having to go to the Supreme Court. Like the travel ban that we won. The 9th Circuit, we are going to have to look at that," he posted last month.

In April 2017, he tweeted "First the Ninth Circuit rules against the ban & now it hits again on sanctuary cities—both ridiculous rulings. See you in the Supreme Court!"

His allies promise change, and President Trump has six pending nominations on the 29-member 9th circuit appeals court, the largest by far in the country, and overwhelmingly dominated by judges appointed by Democratic presidents.

NOMINEE NEWS

Opportunity awaits the Trump White House. There are 143 federal court vacancies, with 31 nominees ready for action on the Senate floor.

But following a rhetorical kick in the pants by progressive groups, Senate Democrats have begun in recent weeks to dig in their heels to slow the confirmation process. Most of the rancor of the recent government shutdown was over border wall funding, but the end of the 115th Congress was also split over the Democrats' refusal to approve the final slate of judges before year's end.

That has conservative legal activists livid.

"This is what a fit of partisan spite looks like," said Thomas Jipping, a senior legal fellow at the conservative Heritage Foundation. "Even though confirmations are down and vacancies are up, Democrats would rather keep the judiciary understaffed and overworked than cooperate with Republicans."

Video

Just as it was two years ago, the makeup of the courts promises to be a 2020 campaign issue. The progressive Demand Justice last week released a campaign ad in all-important Iowa, aimed at potential Democratic presidential contenders.

"Donald Trump is trying to overturn Obamacare in court," reads the ad. "So why are Democratic leaders in Washington making it easier for Trump to pack the courts with anti-Obamacare judges?"

Justice Ruth Bader Ginsburg’s recent health issues has drawn predictable attention from left and right. The oldest justice at 85 recently suffered a fall, injuring her ribs. A follow up medical visit revealed two cancerous lobes in her left lung, requiring a pulmonary lobectomy.

A court spokeswoman said Ginsburg was discharged Tuesday from the hospital, and that there was no further evidence of the disease. The White House was predictably mum on whether it was anticipating any near-term vacancies, but the quiet speculation will only grow as the court term heads to its June recess.

Just days before Kennedy announced he would be stepping down, the Federalist Society’s Leonard Leo, who has been an official Trump adviser on judges, told Fox News the odds were better than 50/50 the president could get multiple high court picks.

"The odds are high that over the course of the next couple of years, several years, you're going to see a couple of vacancies," he said.