Nancy Gertner is a retired US district judge and a senior lecturer at Harvard Law School.
Retired judge Michael Luttig and I organized a letter opposing President Trump’s nomination of Emil Bove for a lifetime appointment to the US Court of Appeals for the Third Circuit because he is not qualified. About 80 retired judges, both federal and state, signed the letter.
“Elevating a nominee whose record reflects a pattern of misconduct, disregard for lawful authority, and political entanglement would not only compromise the integrity of the courts, it would set a dangerous precedent that judicial power may be wielded in service of personal fealty rather than constitutional duty,” we wrote.
More than 900 former lawyers from the Department of Justice agreed. In a letter they signed opposing Bove’s nomination, they wrote, “It is intolerable to us that anyone who disgraces the Justice Department would be promoted to one of the highest courts in the land, as it should be intolerable to anyone committed to maintaining our ordered system of justice.”
Bove, formerly a criminal defense attorney for Trump, now serves as principal associate deputy attorney general.
Let’s be clear: Judicial nominations have been contested before, but nothing like this. This is not the usual grousing about a nominee of the other political party, typical in these extraordinarily divided times. Bove is uniquely unfit to serve as a federal judge.
I know something about the qualifications for federal judges. I served for 17 years on the federal bench in Massachusetts. In the years since I retired, I have had extensive experience in identifying and vetting candidates for federal judgeships. Potential candidates have been rejected for things that seem minor in retrospect, next to Bove’s record — things like cocaine use in college, too strident blogging about political issues, even regularly filing late tax returns or a particularly bitter divorce. Bove’s record is different. It goes to the heart of whether he can be an independent, neutral judge at all, ever.
No one is born neutral. Every judge must move to neutrality. The challenge of the judicial vetting process is to determine whether a candidate’s past life predicts that he or she can make the change, that he or she can become an independent and dispassionate judge.
Nothing about Bove’s record suggests he can. Indeed, just the opposite. Bove was Trump’s personal lawyer, although that standing alone would not have been enough to trigger opposition of this scale. (I was a criminal defense lawyer, too, although my client list was not nearly as exalted.) The key issue concerns Bove’s record at the Justice Department. Most judges on the federal bench were prosecutors, a role in which they were expected to prove that they can rise above partisanship. Unlike lawyers who represent individuals, prosecutors represent society as a whole and are obliged to work toward a just result. Bove did not — far from it.
In January, as acting deputy attorney general, he instructed the leadership of the FBI to compile a list of prosecutors involved in criminal proceedings stemming from the Jan. 6, 2021, Capitol attack. Soon afterward, dozens of federal prosecutors in the US attorney’s office for the District of Columbia who investigated the attack were dismissed. In February, Bove sought to end federal corruption charges against Mayor Eric Adams of New York City in exchange for Adams’s commitment to enforce Trump administration policies, triggering the resignations of Danielle Sassoon, the acting US attorney for the Southern District of New York, and Hagan Scotten, an assistant US attorney, both Federalist Society members, and five prosecutors in the Justice Department’s Public Integrity Section.
In June, Erez Reuveni, a 15-year veteran of the department, filed a whistleblower complaint alleging that Bove said that if a court tried to stop deportation flights of Venezuelan immigrants under the purported authority of the 1798 Alien Enemies Act, the DOJ would consider telling the courts “[expletive] you” and “ignore any such order.” And it’s not just Reuveni’s account: Text messages with other staff and Reuveni’s contemporaneous emails confirm that the DOJ attorneys understood Judge James Boasberg’s order and Bove’s order not to follow it. The record is so clear that on April 16, Boasberg ruled there was probable cause to hold Trump administration officials in criminal contempt for violating his order.
Records suggest Bove’s approach may also have suffused the Department of Justice. In a recent analysis, The Washington Post reported that Justice Department lawyers and the agencies they represent have been accused of defying 1 in 3 judges who ruled against the administration, with “dozens of examples of defiance, delay and dishonesty.” This is not a disagreement about the ideological positions of a candidate or his judicial philosophy. No, this is different. Everything about Bove’s record predicts that he won’t follow the law; he will follow the man, the political interests of this president. This is not a candidate for an independent judiciary. This is a partisan — or worse, a toady.