When the first Trump administration started elevating unqualified cranks and Biglaw associates to the federal bench, the legal community braced themselves for dingbat outcomes like written opinions becoming insulting rants or tragi-comic linguistic gymnastics over basic vocabulary words. While those wacky predictions came to pass, some of us focused on another fear: if Trump had already picked so much low-hanging fruit to end up here… what sort of dregs would populate second term bundle of nominees?
The answer to that question began to take shape this morning with the Times reporting that personal Trump lawyer turned DOJ official Emil Bove might be tabbed for the Third Circuit.
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One of the department’s most formidable and feared political appointees in the second Trump administration, he has emerged as a top contender to fill a vacancy on the U.S. Court of Appeals for the Third Circuit, which covers Pennsylvania, New Jersey and Delaware, those people said.
There are two vacancies on the court — one based in New Jersey and one in Delaware. It is not clear which seat Mr. Bove is under consideration for. He has a property in Pennsylvania, and some conservatives have called for moving the Delaware-based seat to Pennsylvania.
Bove, a sort of bargain Roy Cohn, served in the Southern District U.S. Attorney’s Office for years, but somehow that experience did not induce the proper level of professional shame to keep him from advancing some of the zaniest of Trump’s NY criminal case arguments, including the theory that the end of Chevron deference meant Trump couldn’t commit campaign fraud because who is the “Federal Election Commission” to talk anyway?
After the election, Bove took a leading role in the Justice Department, taking the initiative on key policy decisions because no career official — either Republican or Democrat — was willing to sign their name to the filings. It was Bove, for instance, who ordered his old SDNY office to dismiss charges against Mayor Eric Adams on the grounds of being nice to Donald Trump, triggering a wave of resignations leaving him as the only one willing to show up and argue for it.
If Trump follows through on the nomination, it will be Bove’s first trip to the Senate, as his current DOJ post falls below the confirmation threshold. Most administrations would balk at subjecting an agency hatchet man to Senate scrutiny, but after successfully installing a parasitic brain worm in charge of the nation’s health policy, there’s not much to suggest a bargain to drop a detailed and galling public corruption indictment of the mayor of the country’s largest city will register much pushback.
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But we’re back to the question: what makes for a judicial nominee in a Trump 47 term? Certainly there is a cohort of FedSoc faithful with shiny resumes and four years more years of seniority, but that crop can only go so far. The Killer Bs lineup of Bondi-Blanche-Bove at Justice already signaled an interest in personal connections over fidelity to the conservative movement catechism. I mean… it’s hard to believe Federalist Society headquarters wants to be in the position where a Yale Scalia clerk like Danielle Sassoon is out while the administration fills the same job in other jurisdictions with fucking Judge Janine and parking garage lawyer Alina Habba.
And Leonard Leo certainly cares more about judges than the US Attorney gig, but that’s the traditional stepping stone. Between the FedSoc bench getting lighter and lighter and Trump feeling more personally emboldened and untethered by the Senate, when do we just admit that it’s better to have some personal tie to the president than a pristine record with the Federalist Society? What does Donald Trump care if someone clerked for Gorsuch when he could elevate Alina Habba’s former paralegal?
Maybe this is a one-off from the Federalist Society’s continued dominance of the nomination process. But there is a tipping point out there where Trump stops caring about the carefully manicured resumes he gets from the movement and starts just starts handing jobs to people who work themselves into his good graces. If we reach that point, we’re going to look back on this one as an early indicator of where things were going.
Or maybe this is the tipping point itself.
Bove, Top Justice Dept. Official, Is Considered for Circuit Court Nomination [New York Times]
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.