What to Do — And Not to Do — About a Judge Like Emil Bove

Emil Bove, the nominee to be U.S. Circuit Judge for the 3rd U.S. Circuit Court of Appeals, is sworn in before his confirmation hearing in the Senate on June 25, 2025, in Washington.Photo: Bill Clark/CQ-Roll Call via Getty Images

President Donald Trump’s second term has so far been a constant barrage of unconstitutional actions and illegal orders. So it was thus no surprise when the Senate on Monday confirmed Trump’s former personal lawyer and Justice Department lackey, Emil Bove, to a lifetime appointment on the 3rd U.S. Circuit Court of Appeals.

That 50 Republican senators would install this fascist bootlicker to one of the most powerful judicial positions in the land for life is, as MSNBC legal analyst Andrew Weissmann put it, “a nail in the coffin” for a system of checks and balances on authoritarian presidential overreach.

There’s a risk, however, after a grave blow like this to legal, political, and constitutional norms, that liberal epitaphs to the American constitutional order will mourn the wrong thing.

Bove’s appointment confirms something worse than the Republican embrace of lawlessness. He represents the Republicans’ use and abuse of our fraught constitutional order for the purposes of enacting profound, life-denying, and long-lasting injustices to uphold a white nationalist regime.

Liberal epitaphs to the American constitutional order risk mourning the wrong thing.

Calling on the restoration of preexisting norms of law and constitutionality to reverse course will be, at best, insufficient. After all, liberal reliance on a system of order above justice helped deliver us Trump and his jurist enablers in the first place.

This is not to understate how appalling it is that Bove has been appointed a federal judge.

“It is one thing to put lab-designed Federalist Society members on courts across the country — and, to be clear, several of Trump’s nominees from his first administration went far beyond that,” wrote legal journalist Chris Geidner when Trump nominated Bove, “but it is another thing altogether to name a lawless loyalist to a federal appeals court.”

Geidner called Bove’s confirmation a “line that cannot be crossed.” It has now been crossed.

Bove is perhaps best known as the Justice Department official who dismissed corruption charges against New York Mayor Eric Adams — a decision that led more than 10 Justice Department attorneys to resign in protest. He fired federal prosecutors who had worked on January 6 cases.

According to three Justice Department whistleblower accounts, Bove also told federal attorneys that they “would need to consider telling the courts ‘fuck you’” and ignore orders blocking the administration from sending immigrants to El Salvador’s gulag. Over 900 former Justice Department attorneys, identifying with both parties, wrote letters opposing Bove’s judgeship.

Yet Republican senators refused to hear whistleblower testimony and dismissed the widespread concerns about Bove as Democratic meddling. As usual, they did what the president asked.

Democrats’ Role

Bove’s new, permanent position assures more serious harms to come. Given how few cases are heard by the Supreme Court, the 3rd Circuit is most often the final voice in the law for cases from Delaware, New Jersey, Pennsylvania, and the U.S. Virgin Islands.

Bove has made unwaveringly clear that, for him, the law is the president’s will. This position is now standard in the Republican Party and all too consistently affirmed by a Supreme Court majority committed to unitary executive theory to vest authoritarian powers in Trump’s hands.

Earlier this month, Geidner posted on social media that “should Bove be confirmed — which he should not be — he should immediately be the subject of an impeachment inquiry should Dems retake Congress.”

Based on his actions at the Department of Justice, there are ample grounds to call for impeachment. Democrats should vow to do this immediately.

Senate Democrats carry significant blame for Bove’s judgeship, too.

Senate Democrats, after all, carry significant blame for Bove’s judgeship, too. His seat should have been filled by Biden nominee, Adeel Mangi, who would have been the first Muslim judge on a federal appeals court. Instead of shutting down vile, Islamophobic Republican attacks against Mangi, Senate Democrats allowed the smears to gain ground and eventually stood down on the nomination.

Senate Minority Leader Chuck Schumer on Tuesday said, “To confirm Mr. Bove is a sacrilegious act against our democracy.”

He did not mention that, when he was Senate majority leader, he permitted a relentless Islamophobic campaign to tank Mangi, a qualified nominee, which left the judge’s seat open for Trump’s taking.

The Democratic establishment may lament Bove’s confirmation as “a dark, dark day,” but we have no reason to think that this party leadership will bring us toward the light. Geidner’s suggestion — to pursue impeachment — would be the very least that Democrats can do. What they should already be doing is using every tool in their power to hinder Trump’s deportation machine.

Given the Democrats’ own vile embrace of harsh border rule, I am not holding my breath.

Not Our Savior

The judges who have continued to push back directly against Trump’s illegal actions, meanwhile, remain a crucial constraint on some of the administration’s worst attacks on our rights. These judges are under unprecedented attack.

On the same day Bove was confirmed, Trump’s Justice Department filed a baseless misconduct complaint against U.S. District Judge James Boasberg. In March, Boasberg issued an order to block deportation flights to El Salvador under Trump’s invocation of the 1798 Alien Enemies Act — the very sort of order that Bove reportedly told attorneys to say “fuck you” to.

In an obscene retaliatory escalation, the Justice Department’s complaint claims that Boasberg’s alleged comments — that the administration could trigger a “constitutional crisis” by disregarding court orders — “have undermined the integrity and impartiality of the judiciary.” The complaint says that the administration has “always complied with all court orders.”

The idea that it constitutes judicial misconduct to suggest otherwise, despite clear evidence of the executive’s disregard for certain unfavorable court orders, is the sort of authoritarian logic that obviates concerns about a constitutional crisis in the worst way: There can be no crisis if fascist rule silences all constitutional pushback.

Then the problem is not a constitutional order in crisis, but a fascist order without opposition.

This is not yet the state of affairs. The courts — certain courts, at least — are not yet a dead end. It should be increasingly clear, however, that they will not deliver us from fascism either.

As legal scholar Aziz Rana wrote earlier this year, the left should “strongly back litigation efforts and condemn Trump’s defiance of the courts,” but not because the courts are a terrain of liberatory struggle.

Rana is clear that “the reason to oppose Trump’s violation of court orders is not out of a general faith in judges or constitutional norms,” but because they are a tool, however limited, for protecting people and holding the administration to account.

“Fuck You” to Humanity

The affront at the heart of Bove’s confirmation is not that he does not respect the law — although that should no doubt be disqualifying for a judge. If that’s where we object, however, we risk lionizing a criminal legal system that also gives rise to racist policing and mass incarceration.

Bove’s violence lies primarily in his commitment to a form of injustice that ensures impunity for the corrupt and powerful, while the poorest and most vulnerable are treated as wholly disposable.

The infamous advice Bove allegedly gave to ignore court orders over deportations was a “fuck you” to the Constitution and the rule of law, yes, but above all it was a “fuck you” to the over 200 men who were rounded up, kidnapped, shaved, beaten, and tortured in a foreign gulag without any recourse. It was a “fuck you” to human beings.

It should go without saying that the constitutional order in and of itself has never in practice guaranteed equality and justice for all. The constitutionalization of slavery’s abolition and many basic civil rights protections took extraordinary social struggle and political work. The successful dismantling of the constitutional right to an abortion took decades of political organizing, too. Nothing in the Constitution guarantees progress.

“The great social movements of the past, from abolition to civil rights, labour to women’s suffrage, famously called for the defiance of unjust court judgments that sustained slavery, segregation and disenfranchisement, or criminalized union organizing,” Rana noted. “Considering the current right-wing control over the courts, the left may find itself in a similar place in the coming years, calling for civil disobedience of judicial authority.”

With judges like Bove in place, such action will likely be all the more necessary.

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