The appointment of Trump apparatchik Emil Bove to the influential Third Circuit Court of Appeals is terrible, deeply compromising the standards of integrity and judicial independence that have been at the core of our constitutional system since 1789.
The judiciary is, as Alexander Hamilton declared it, “the weakest of the three” branches of government. It does not need to be any weaker. But it is not yet the end of the world.
The clear and present danger is that the Bove appointment, perhaps the worst Trump has made, is a chip-shot away from our supremely partisan Supreme Court.
Only one judge has made it from the Third Circuit to the Supreme Court — the hard-right Justice Samuel Alito, appointed by President George W. Bush in 2006. Alito is 75, at the threshold of a reasonable retirement. But beware, with Bove waiting in the wings, the stage is set for Alito to get off the court.
Some of the elements a good judge must possess are experience, intellect, judgment, temperament, integrity, character and fairness.
Bove flunks on all counts. Forget that he has no prior federal judicial experience. This has been true of the greatest of our Supreme Court justices, the venerated Chief Justice John Marshall, and the very worst, Chief Justice Roger Taney, who wrote the infamous Dred Scott opinion denying citizenship to Black people. It is also true of Justice Oliver Wendell Holmes and Justice Louis Brandeis.
Fifty senators shamefully caved on Bove, just as they did with the hideous appointments of Pam Bondi, Pete Hegseth, Kristi Noem, Robert F. Kennedy Jr. and Kash Patel, to name a few. But remember, Bove gets a lifetime appointment, while the others will be there only so long as Trump is. Bove is joined even more closely with Trump at the hip, having defended him as his personal lawyer in multiple criminal cases. A group of former prosecutors wrote a letter urging Bove’s rejection and calling him “the worst conceivable nominee.”
Sen. Susan Collins (R-Maine) voted against confirming Bove, stating that his “political profile and some of the actions he has taken in his leadership roles at the Department of Justice cause me to conclude he would not serve as an impartial jurist.”
Bove makes us queasy with statements that put his temperament and judgment in doubt. What is the temperament of someone quoted by Justice Department colleagues as advocating defiance of court orders with the crude battle cry, “F— the courts!” What is the judgment of someone who has described the investigation and prosecution of those who attacked the Capitol as “a grave national injustice that has been perpetrated upon the American people”?
What is the integrity of someone who told the court there was no quid pro quo in the Justice Department decision he led to dismiss the indictment of New York City Mayor Eric Adams “without prejudice”? The federal judge who had the case found this representation to lack credibility and dismissed with prejudice, stating, “There may or may not be good reasons to drop this prosecution. But the reasons articulated by [the Justice Department], if taken at face value, are inconsistent with a decision to leave the charges in the indictment hanging like the proverbial sword of Damocles over the mayor.”
But even though Trump has cheapened the standards for appointment to the federal judiciary, there is still some hope. Sitting in the Third Circuit, which comprises Pennsylvania, New Jersey, Delaware and the Virgin Islands, Bove will have to come to terms with a complement of 13 judges, seven Democrats and six Republicans. There is one remaining vacancy which Trump will try to fill.
But take a deep breath. The Third Circuit rarely hears cases with ideological implications. Because its jurisdiction includes Delaware, where many corporations are housed, many of the cases coming before it are business or corporate disputes. Bove will mostly sit on a panel of three judges, and some Republican judges on the court have shown considerable independence.
In a 2020 election case, for example, Third Circuit Court Judge Stephanos Bibas, a Trump appointee, authored a unanimous decision rejecting the Trump campaign’s claims of fraud in Pennsylvania, writing that “calling an election unfair does not make it so.”
The MAGA-era Supreme Court is a horse of a different color from Bove’s Third Circuit. If not historically a political policy-making body, it certainly is one now. The Supreme Court has arrogated to itself untrammeled policymaking authority. With cases like the Dobbs decision overruling Roe v. Wade, the immunity decision giving Trump a free pass for criminal deeds while in office, and the shadow docket decisions giving Trump carte blanche to ride roughshod on constitutional rights without opinion or reasoning, we now have a supremely partisan Supreme Court.
Emil Bove is 44. If he makes it to the Supreme Court, he will be there for a generation or longer. But of course, he may never make it. Adults in the appointing authority may make a sounder judgment next time around. However fraught, it would be premature for liberals to wear the hair shirt.
James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is the author of “Supremely Partisan,” a book arguing that the Supreme Court has become politicized. He is also the host of the public television talk show and podcast Conversations with Jim Zirin.
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