Republicans in the Senate may be on the verge of their most consequential capitulation to President Trump so far — and I am not talking about the deficit-busting “big, beautiful bill.”
On Wednesday, when the eyes of the nation were still fixed on the Middle East, the Senate Judiciary Committee held a hearing on Trump’s nomination of Emil Bove to serve as a judge on the United States Court of Appeals for the Third Circuit, which covers cases from Pennsylvania, New Jersey, Delaware and the Virgin Islands.
Bove’s nomination is yet another sign that Trump’s second term is beginning (yes, it’s still only the beginning) very differently from his first. Just as he wants sycophants and yes men staffing his administration, he’s now moving toward staffing the judiciary with the same kind of person: judges who will do whatever it takes to curry favor with a president who values fealty above all.
By now, Americans are accustomed to the devolution of Trump’s team. Serious people populated the highest levels of the executive branch at the start of Trump’s first term, but now some of the most important positions in American government are held by cranks like Kash Patel, Robert F. Kennedy Jr. and Pete Hegseth.
But as bad as those men are, their influence is ultimately limited — first by Trump himself, who feels completely free to overrule and disregard any decision they make for the sake of his own interests and whims, and second by time itself. Trump’s political appointees won’t be in American government for long, and while they can inflict lasting damage during their short tenures, the next president can replace them and at least start the process of repair.
Emil Bove, however, would be a problem for a very long time. At 44 years old, he’s been nominated for a lifetime appointment to the federal bench. That means he’d long outlast Trump in the halls of American power, and if past performance is any measure of future results, we should prepare for a judge who would do what he deems necessary to accomplish his political objectives — law and morality be damned.
Bove was formerly a prosecutor in the Southern District of New York, and after he left the Department of Justice during President Joe Biden’s term, he served as one of Trump’s lead defense attorneys in his federal and state criminal cases.
At the start of his second term, Trump named Bove the acting deputy attorney general, and Bove immediately made himself an instrument of Trump’s vengeance. He ordered F.B.I. officials to compile lists of agents who participated in investigations related to the Jan. 6 attack on the Capitol. He fired Justice Department prosecutors who were hired to work on Jan. 6 cases without any evidence of wrongdoing.
He ordered prosecutors in the Southern District of New York to drop criminal charges against Eric Adams, the mayor of New York, seemingly on the ground that prosecuting Adams could interfere with Trump’s immigration agenda, an action which triggered a revolt in the Southern District.
Danielle Sassoon, a former law clerk for Justice Antonin Scalia who was then the acting U.S. attorney for the Southern District, resigned, declaring that she did not see “any good faith basis” for Bove’s legal position. Another attorney with impeccable conservative credentials, Hagan Scotten, wrote perhaps the most scathing resignation letter I’ve ever read.
“No system of ordered liberty,” he wrote, “can allow the government to use the carrot of dismissing charges, or the stick of threatening to bring them again, to induce an elected official to support its policy objectives.”
And consider these words, which we should never have to hear about any prosecutor, much less a prosecutor who’s nominated to serve as a federal judge:
Any assistant U.S. attorney would know that our laws and traditions do not allow using the prosecutorial power to influence other citizens, much less elected officials, in this way. If no lawyer within earshot of the president is willing to give him that advice, then I expect you will eventually find someone who is enough of a fool, or enough of a coward, to file your motion. But it was never going to be me.
Judge Dale Ho, a federal district judge in the Southern District of New York, wrote that Bove’s decision to dismiss the charges against Adams “smacks of a bargain: dismissal of the indictment in exchange for immigration policy concessions.”
On Tuesday, a former Justice Department lawyer named Erez Reuveni filed a whistle-blower complaint that included claims that Bove said in a March meeting that the Justice Department should consider saying “fuck you” to courts that enjoined efforts to deport immigrants under the Alien Enemies Act. Bove denies Reuveni’s account.
Even before Trump’s second term, Bove was a controversial figure. During his first tenure at the Department of Justice, he faced an internal investigation over alleged mistreatment of subordinates. His superiors initially recommended a demotion but then later decided against it.
In a Truth Social post announcing Bove’s nomination, Trump included this ominous line: Bove, he wrote, will “do anything else that is necessary to, MAKE AMERICA GREAT AGAIN.” That statement caused Ed Whelan, a senior fellow in the Ethics and Public Policy Center, to write in National Review that there is a “danger that Bove, if confirmed, would leap to the top of Trump’s list for the next Supreme Court vacancy.”
Context matters here. Trump’s nomination of Bove comes just as he turned on Leonard Leo and the Federalist Society. In May, he called Leo — a man who was instrumental in helping Trump nominate the justices who overturned Roe v. Wade — a “sleazebag” and a “bad person who, in his own way, probably hates America.” He attacked the Federalist Society for giving him “bad advice” on judicial nominations.
Trump’s first-term judicial nominees are conservative, but (with very few exceptions) they are not Trumpists, and that means when Trump’s demands conflict with the text and the original meaning of the Constitution, they’ll side with the Constitution over Trump — an unforgivable outrage to the president.
Judicial liberals no doubt have many differences with the Federalist Society, but as a rule, both conservative and liberal jurists share commitments to the Constitution, the rule of law and the judiciary as the branch of the federal government that is tasked with interpreting the law, not with driving public policy or political agendas.
In other words, liberal and conservative judges have mainly differed in their judicial philosophies, not in their commitment to integrity and America’s liberal democracy.
Bove, by contrast, has signaled as clearly as he can that he is committed to Trump.
But he kept quiet about this at his confirmation hearing. During his testimony on Wednesday, Bove not only denied that he’d threatened to defy court orders, he said, “I am not anybody’s henchman, I am not an enforcer.”
But actions, as you may have heard, speak louder than words, and Bove’s actions indicate that Trump was exactly right when he said that Bove would do “anything else that is necessary” for the MAGA movement.
Republican senators have so far given Trump everyone he wants in the executive branch this term. They haven’t voted down a single nominee (Matt Gaetz and several others stepped aside before any Senate votes), even when those nominees were obviously and grotesquely inexperienced and incompetent. Trump won the election, they reason, and they’re letting him staff his team.
But judges are not part of the president’s team. They’re a separate branch of government. This means that there is an even more urgent necessity for Republican senators to exercise their independent judgment.
There is recent precedent for a Republican revolt against a Republican president’s judicial nomination: when George W. Bush nominated Harriet Miers, his White House counsel, to the Supreme Court. Republicans reacted strongly, believing that she was undistinguished and inexperienced in constitutional law and lacked a clear record of a conservative legal philosophy compared with other potential candidates.
Republicans weren’t betraying the president; they were exercising their constitutional responsibilities. Bush ultimately withdrew her nomination, and replaced her with Samuel Alito.
Our nation does not need vengeful political operatives on the federal bench. Bove is a far worse nominee than Miers. Critics questioned her experience and her qualifications. They did not question her integrity. But with Emil Bove, integrity is precisely what is in doubt.
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David French is an Opinion columnist, writing about law, culture, religion and armed conflict. He is a veteran of Operation Iraqi Freedom and a former constitutional litigator. His most recent book is “Divided We Fall: America’s Secession Threat and How to Restore Our Nation.” You can follow him on Threads (@davidfrenchjag).
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