Emil Bove is one of President Donald Trump’s former criminal defense lawyers. He’s now a senior Justice Department official — and he’s widely described as Trump’s “enforcer” for his hard-charging, unapologetically MAGA approach to that job.
If Trump gets his way, moreover, Bove could soon become one of the most powerful people in the United States. Last week, Republicans on the Senate Judiciary Committee voted to approve Bove’s nomination to the US Court of Appeals for the Third Circuit, after the committee’s Democrats walked out in protest. In the likely event that Bove is confirmed, he’ll be well-positioned to become one of the United States’ nine philosopher kings and queens.
SCOTUS, Explained
Get the latest developments on the US Supreme Court from senior correspondent Ian Millhiser.
According to legal journalist Jeffrey Toobin, “the president is grooming Mr. Bove for bigger things — possibly a seat on the Supreme Court.” Should that happen, it would mark a return to cronyism in Supreme Court nominations. For many decades, presidents of both parties have chosen justices largely based on those justices’ allegiance to their political party’s ideological agenda, rather than based on personal loyalty to the president.
Indeed, Trump’s decision to place personal loyalty over conservative ideology may explain why much of the opposition to Bove is bipartisan. Bove isn’t simply opposed by lefty groups that traditionally protest many Republican judicial nominees — he is also opposed by some prominent right-wing judicial activists, one of whom warned that Trump is turning “his back on principled legal conservatives.”
Bove’s views on a wide range of issues that have historically animated movement conservatives — such as abortion and religion — are largely unknown. So, while Bove will almost certainly be unflinchingly loyal to Trump if he is confirmed to the federal bench, there’s no way to know whether he will hold to the Republican line on a wide range of domestic policy issues.
The case against Emil Bove
Based solely on his resume, Bove is conventionally qualified for a federal judicial appointment. He graduated from Georgetown University’s law school, clerked for a federal appeals court judge, and worked as a litigator for more than a dozen years — both at the Justice Department and in private practice.
Bove currently serves as principal associate deputy attorney general, essentially the No. 2 lawyer in the Justice Department’s No. 2 office. For the first month-and-a-half of Trump’s second term, however, he was DOJ’s second-ranking official, period — acting deputy attorney general.
By backing nominees like Bove, Republicans risk filling the bench with the same kind of unreliable allies that they fought to stop in 2005.
Though Bove’s tenure in the more senior role was brief, it was quite eventful. He is probably best known for ordering the DOJ to dismiss corruption charges against New York City Mayor Eric Adams “without prejudice,” a maneuver that would allow the Trump administration to reinstate the charges if Adams did not cooperate with the administration’s immigration crackdown. (A federal judge rejected this maneuver, ruling that the DOJ could not bring the same charges against Adams again.)
Seven Justice Department lawyers resigned rather than comply with Bove’s order, including acting US Attorney Danielle Sassoon, a former law clerk to the iconic conservative Justice Antonin Scalia. Another of those lawyers, Hagan Scotten, wrote in his resignation letter to Bove that “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.” Scotten clerked for Republican Chief Justice John Roberts after clerking for future Republican Justice Brett Kavanaugh.
A whistleblower complaint by another former Justice Department lawyer, meanwhile, claims that Bove stated, in a meeting about a court decision halting some deportations, “that D.O.J. would need to consider telling the courts ‘fuck you’ and ignore any such order.”
Multiple lawyers who litigated against Bove also accuse him of abusive and unprofessional behavior. As one lawyer put it, “what he enjoyed most as a prosecutor was wielding power.” In late 2020 or early 2021, the Justice Department opened a formal investigation into Bove’s management style while he was working as a supervisor in a US attorney’s office. Investigators eventually recommended that Bove be demoted from his supervisory role, although the office never followed through on this demotion.
So the nonpartisan case against Bove is fairly straightforward: His critics see him as a reckless bully. As Ed Whelan, a longtime conservative activist best known for his attempt to rebut sexual assault charges against Justice Kavanaugh by using the real estate website Zillow, wrote in the National Review, “I have serious doubts that Bove has the character and integrity to be worthy of confirmation as a federal judge.”
Why Republicans used to oppose cronies
Bove’s nomination marks a return to the kind of crony politics that animated Supreme Court nominations for much of the Court’s history, but that has largely faded in recent years as the Court became more partisan.
For much of American history, presidents paid surprisingly little attention to their Supreme Court nominees’ ideology. President Woodrow Wilson, for example, appointed his attorney general, James Clark McReynolds, to the Supreme Court in large part because Wilson found McReynolds to be personally obnoxious — and putting him on the Court meant that Wilson did not have to deal with McReynolds in his Cabinet.
President Dwight D. Eisenhower complained that his appointment of Justice William Brennan, a hugely influential left-liberal justice, was one of the biggest mistakes Eisenhower made in office. But Ike’s White House never vetted Brennan for ideology, and Eisenhower chose him largely because Brennan was Catholic; Eisenhower thought that the appointment would appeal to Catholic voters.
Often, presidents selected justices from among their friends and political allies. Chief Justice Fred Vinson, who President Harry Truman appointed to the Court, was also a regular at Truman’s poker games. President Lyndon B. Johnson appointed one of his former personal lawyers, Justice Abe Fortas. And Fortas continued to act as a presidential adviser while he also sat on the Supreme Court.
But it’s been quite some time since a justice joined the Court because of their personal loyalty to the sitting president. Today, presidents typically create a bench of potential Supreme Court nominees by appointing ideologically reliable lawyers to federal appeals courts. These lawyers are selected more because of their loyalty to their political party’s agenda than to any particular person. Supreme Court nominees are then drawn from the Democratic or Republican Party’s bench in the lower courts.
Eight of the current justices fit this model. The one exception is Justice Elena Kagan, who served as President Barack Obama’s solicitor general before her elevation to the high Court but who was never a lower court judge.
Indeed, in a letter opposing Bove’s nomination, Gregg Nunziata — who served as Senate Republicans’ chief nominations counsel during the confirmations of Chief Justice John Roberts and Justice Samuel Alito — writes that confirming Bove would “betray the decades-long project of the conservative legal movement” by inviting “more nominations of presidential loyalists in place of committed conservative lawyers.”
Nunziata has a point. The most recent example of a president attempting to appoint a personal loyalist to the Supreme Court occurred in 2005, when President George W. Bush nominated his own White House lawyer Harriet Miers. But the Miers nomination crashed and burned in just a few weeks, largely because conservatives feared that she had a thin record on key issues like abortion.
Barring extraordinary events, Trump will not be president in four years. That means that, if he appoints Bove to the federal bench, Bove will soon no longer be able to make decisions by asking “what would the president want me to do?” At that point, it really will matter what Bove thinks about issues like abortion, religion, marriage equality, or transgender rights.
But Bove spent the bulk of his career practicing criminal law. And, if anything, his record on many of these issues is even thinner than Miers’s. So, by backing nominees like Bove, Republicans risk filling the bench with the same kind of unreliable allies that they fought to stop in 2005.
