Emil Bove cannot become a federal judge

This is a line that cannot be crossed. Also: Monday was a holiday, but the Trump administration has already racked up a lot of losses in court this week.

First, Emil Bove was Donald Trump's criminal defense lawyer. Then, president-elect Donald Trump named him to a senior role at the Justice Department. Then, Bove forced out ethical lawyers at DOJ to advance President Donald Trump's aim of getting the case against Eric Adams tossed out.

On Wednesday, Bove got a judicial nomination in return for his services. Not just any judicial nomination, either. A federal appeals court nomination — one of the people who often, in essence, have the final say on what the law means for people within that circuit because the U.S. Supreme Court hears so few cases.¹

Bove, Trump told the world on Wednesday, is being nominated for a seat on the U.S. Court of Appeals for the Third Circuit.

Simply put, Bove cannot become a federal judge — let alone an appellate judge.

Don’t just take my word for it: Gregg Nunziata, former chief nominations counsel to Senate Republicans, called this an “outrageous and unacceptable” choice. In an extensive thread, he wrote, in part:

Many of my friends on the legal right who disagreed with my view of Trump insisted that we should expect Trump 2.0 judicial nominations to continue the generally excellent trend of Trump 1.0. If he didn't, they said, conservatives would oppose him. He hasn't. The test is here. …

As an executive branch official, Bove has proven he cannot honor his oath or put law before politics. Putting him in a robe, with life tenure and a much higher obligation to serve law over politics, would be an obscenity. The Senate must reject this nomination.

Nunziata and I have disagreed on much over the years, but there is no question that he is right about this.

If you forgot about Bove’s actions regarding the Eric Adams case, go re-read my report from February. His February 10 and February 13 letters alone disqualify him for Senate confirmation.

Of course, Bove is not Trump’s first or even most recently announced judicial nominee. Earlier this month, Trump announced his first judicial nominees: One appeals court nominee — Whitney Hermandorfer, for a seat on the U.S. Court of Appeals for the Sixth Circuit — and four district court nominees in Missouri. On Wednesday, following the Bove announcement, Trump also announced five Florida district court nominees. Trump has announced one D.C. Superior Court nominee as well.

There are significant questions already being raised about several of those nominees, and I hope to spend time on nominations as I can and as appropriate in the coming weeks and months.

But, for now, Bove is a line in the sand. 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 — but it is another thing altogether to name a lawless loyalist to a federal appeals court.

Not only can Bove not be confirmed because Bove cannot become a judge; Bove cannot be confirmed because Trump and his advisors need to know that Boves are not — and will not be — judges.

This is a line that cannot be crossed.

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Trump’s court losses mount

On the “actual judges in court“ side of the ledger, the Trump administration keeps racking up losses. Here are just a handful of losses between Tuesday and Wednesday:

• Trump’s executive order targeting WilmerHale is unconstitutional, U.S. District Judge Richard Leon, a George W. Bush appointee, ruled in an opinion that stated: “The cornerstone of the American system of justice is an independent judiciary and an independent bar willing to tackle unpopular cases, however daunting. The Founding Fathers knew this!“ (Note that U.S. District Judge John Bates, another George W. Bush appointee, ruled last week that the executive order targeting Jenner & Block is similarly unconstitutional — as yet U.S. District Judge Beryl Howell, an Obama appointee, ruled earlier this month as to the Perkins Coie executive order.)

• The U.S. Court of Appeals for the First Circuit denied DOJ’s request for an administration stay of the preliminary injunction blocking the Trump administration’s effort to largely dismantle the Education Department.

• A multistate lawsuit against the non-department Department of Government Efficiency can proceed, as U.S. District Judge Tanya Chutkan, an Obama appointee, largely denied the Trump administration’s request to dismiss the case.

• U.S. District Judge Lewis Liman, a Trump appointee, issued a temporary restraining order on Tuesday blocking the Trump administration’s efforts to stop New York City’s congestion pricing program. On Wednesday, he followed up by granting the challengers’ preliminary injunction request in a 109-page opinion.

• And, on Wednesday evening, the United States Court of International Trade struck down Trump’s “Worldwide, Retaliatory, [and] Trafficking Tariff Orders.”

1. This sentence was edited shortly after publishing to clean up the language about what appeals courts do. I was a little sloppy with the initial phrasing. Apologies!