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 rd U S Circuit Court of Appeals is sworn in before his confirmation hearing in the Senate on June 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 established Trump s former personal lawyer and Justice Department lackey Emil Bove to a lifetime appointment on the rd U S Circuit Court of Appeals That Republican senators would install this fascist bootlicker to one of the most of 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 liability 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 exposure mourning the wrong thing Calling on the restoration of preexisting norms of law and constitutionality to reverse module 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 Related Trump Justice Department Appointee Oversaw Systemic Misconduct in Previous Job 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 Justice Department attorneys to resign in protest He fired federal prosecutors who had worked on January cases According to three Justice Department whistleblower accounts Bove also recounted 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 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 required Democrats Role Bove s new permanent position assures more serious harms to come Given how scant cases are heard by the Supreme Court the rd Circuit is most of 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 ratified which he should not be he should this instant 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 forthwith Senate Democrats carry essential blame for Bove s judgeship too Senate Democrats after all carry considerable 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 disclosed 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 demarcation 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 various of the administration s worst attacks on our rights These judges are under unprecedented attack On the same day Bove was endorsed 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 Alien Enemies Act the very sort of order that Bove reportedly communicated attorneys to say fuck you to In an obscene retaliatory escalation the Justice Department s complaint alleges that Boasberg s alleged comments that the administration could trigger a constitutional emergency by disregarding court orders have undermined the integrity and impartiality of the judiciary The complaint says that the administration has invariably 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 situation in the worst way There can be no dilemma if fascist rule silences all constitutional pushback Then the trouble is not a constitutional order in emergency but a fascist order without opposition Related The Clear and Present Danger to the American Rule of Law 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 danger 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 largest part 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 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 plenty of basic civil rights protections took extraordinary social struggle and political work The prosperous 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 The post What to Do And Not to Do About a Judge Like Emil Bove appeared first on The Intercept