Emil Bove will make an excellent addition to the Third Circuit Court of Appeals. We know this because the three of us shepherded 252 Article III judges to confirmation under President Trump as Republican chief counsels for nominations on the Senate Judiciary Committee under Chairmen Charles Grassley (R-Iowa) and Lindsey Graham. (R-S.C.).
Collectively, we have more knowledge and experience than anyone about what worked, what didn’t, and what to look for going forward. And we know that Bove is a great pick.
Bove is unquestionably qualified for the job. Indeed, his resume looks just like those of Trump’s best judges. He excelled academically, completed prestigious clerkships, served the nation as a federal prosecutor, and then took on a consequential political appointment.
That mirrors the career trajectories of Judge Paul Matey on the Third Circuit, Judge Patrick Bumatay on the Ninth Circuit, and Judge Jay Richardson on the Fourth Circuit — three of the best circuit judges Trump has appointed. Bove is cut from the same cloth.
Some claim that Bove’s lack of attachment to the Federalist Society is a problem. They are wrong. Putting aside that these attacks often come from erstwhile Federalist Society critics, it’s a misplaced concern.
The three of us have all been involved with the Federalist Society at some point in our careers. First and foremost, the Federalist Society never “picked judges.” Second, membership in the organization itself does not qualify someone to be a judge. Federalist Society membership has traditionally been meaningful to the selection process because the society was an incubator for conservative legal ideas — for decades the only place where they were debated. It was therefore a helpful proxy for legal conservatism. But by its own account, its members cross the political spectrum. Membership was and is an imperfect proxy for legal conservatism.
What matters is not whether a nominee is affiliated with the Federalist Society, but whether he or she is a legal conservative.
Bove’s background shows that he is a legal conservative at both the theoretical and practical level. He clerked for two upstanding judicial conservatives — Richard Sullivan and Richard Wesley. Judge Sullivan was subsequently elevated by Trump to the Second Circuit, where he has distinguished himself. Judge Wesley has had many clerks work in both Trump administrations.
Before that, Bove was a research assistant for Professor Nicholas Rosenkranz, a longtime member of the Federalist Society board of directors. Rosenkranz even thanked Bove in the acknowledgements of his most influential academic article, which made a significant contribution to modern understandings of originalism and textualism. Those real-world contributions say more about Bove’s commitment to legal conservatism than any membership card.
Practically speaking, Bove has spent the last five months managing a counterinsurgency against the legal-progressive guerrilla war being run out of blue-state district courts. The extent of the onslaught has been unprecedented. Resistance judges’ lawless theories are being bandied about as if the last 30 years of Supreme Court precedent had never happened.
In these cases, Bove has supervised a robust defense of executive power and managed a powerful offensive against liberal radicalism and its protection of transgender extremism, antisemitism, and mass illegal immigration. He has shown that he understands the practical reality of legal conservatism and is committed to advancing it.
It is simply not credible to claim that someone in Bove’s position right now is not aligned with legal conservatism; to see why, just look at all the liberal career attorneys who decided to pack their desks rather than join Bove in that fight.
Finally, Bove’s rise to prominence might be the best evidence of all. He had a successful career as a prosecutor and was a partner at a highly respected New Jersey law firm. He put that all aside to defend Trump against Democrats' lawfare. Only the most rabid anti-Trump extremist would deny that Bove’s decision took incredible courage. It is courage and fortitude that turns legal conservatism into judicial reality.
Trump chose well in picking Bove for the Third Circuit. He has strong credentials and a strong theoretical and practical understanding of legal conservatism. And he has demonstrated courage and commitment to those ideas in the face of tremendous hostility. He should be confirmed and appointed expeditiously.
Andrew Ferguson is chairman of the Federal Trade Commission and was the Republican chief counsel for nominations on the Senate Judiciary Committee from January 2019 until July 2019. Michael Fragoso is a partner at Torridon Law PLLC and was the Republican chief counsel from July 2019 until August 2021. Mike Davis is president of the Article III Project and was Republican chief counsel from July 2017 until January 2019.
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