The Most Dangerous Branch

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It did not. And because it didn’t, the so-called “conservatives” of the Senate GOP have now implicitly invited the president to nominate more judges in the Bove mold—just two months after he complained that the Federalist Society didn’t recommend enough servile chumps during his first term.

This episode essentially answers the question of what the president’s infamous long-dead crony, former Joe McCarthy counsel Roy Cohn, might be doing right now if he had lived not during the height of American prestige but during our postliberal age of American collapse. He’d either be attorney general or a federal judge, duly approved in either case by the thoroughly rotten Republican Party.

Willful blindness.

It pays here to revisit the bill of particulars against Bove. The fact that he served as the president’s defense attorney last year isn’t itself disqualifying, although it does call his independence into question given Trump’s authoritarian obsession with fanatic loyalty. What disqualifies him is the fact that, in six months as a muckety-muck at the Justice Department, he managed to involve himself in no less than three ethical debacles.

Eleven days after Trump was sworn in, Bove dropped the axe on a number of federal prosecutors who had pursued January 6 defendants, and he demanded that several senior FBI executives involved in those cases either retire or be fired. The president got elected by vowing political “retribution” against those who tried to hold him accountable, and Bove was his willing executioner.

A few weeks later Bove triggered a wave of angry resignations in the Manhattan U.S. Attorney’s Office when he directed prosecutors to drop pending criminal charges against New York Mayor Eric Adams. The White House needed Adams to cooperate with it on immigration, you see, and that cooperation would be more forthcoming if it weren’t trying to put him in prison. Once again, politics trumped diligent law enforcement for the man who is now America’s newest judge.

The icing on the cake came last month when a former DOJ immigration lawyer accused Bove of encouraging deputies to ignore court rulings. Erez Reuveni claimed that Bove was told at a meeting in March that deportation flights to El Salvador for suspected gang members might be halted by a judge’s order. “Bove stated that DOJ would need to consider telling the courts ‘f— you’ and ignore any such order,” Reuveni recalled, according to a whistleblower complaint he filed last month.

That was one of three whistleblower complaints brought against Bove, in fact. The second alleged that he misled the Senate Judiciary Committee when he denied having enticed DOJ attorneys to dismiss criminal charges against Adams by hinting that they might become “leaders” in their department if they did so. The third was filed back in early May and offered corroborating evidence that Reuveni was telling the truth about Bove’s reaction to court orders in the El Salvador matter.

But—hold onto your hats—Donald Trump’s Justice Department supposedly “lost” that third complaint and “found” it only two days ago, the day before the confirmation vote.

The point of all this is that Senate Republicans had plenty of political cover to say that, while they’re willing to confirm nominees like Bove, they’re not willing to confirm Bove himself. Dozens of former judges and hundreds of former DOJ lawyers publicly came out against him, no small thing in a country governed by a figure as vindictive as Trump. Even normally dependable advocates of Republican judicial nominees like Ed Whelan publicly washed their hands of his nomination. We have no problem putting MAGA henchmen on the bench, a nervous Sen. John Thune might have declared, but we can and should do better than someone with this much smoke around him.

Instead, not only did Senate Republicans confirm Bove, they willfully blinded themselves to his deficiencies: Democrats wanted Reuveni to testify under oath, but Sen. Chuck Grassley, the chairman of the Judiciary Committee, denied the request. Faced with the real possibility that it was handing lifetime tenure to a lawyer who doesn’t actually believe in the rule of law, the Senate GOP decided it would rather not know.

“Emil Bove has shown time and time again his disrespect for the very office he seeks to hold,” Sen. Cory Booker said recently in a floor speech. “I don’t know of another case I have seen in my 14 years in the Senate where someone so unqualified for the bench is before us.” 

That may be true if you’re judging the nominee by traditional standards. If you’re judging him by postliberal standards, he’s ideally qualified.

Well-qualified.

The courts are the last holdout against right-wing postliberalism.

The presidency has been captured. Congress has debased itself in supplication. Republican voters have become amoral nihilists who might soon start making excuses for pedophilia in the name of retaining power. There are no political worlds left for America’s scummiest populists to conquer—except the judiciary.

Which is a problem for them. As noted previously, the chief tool in postliberalism’s demagogic toolbox can’t be used on federal judges. Because they sit for life, they can’t be threatened professionally the way “disloyal” lawmakers and bureaucrats are. They can only be threatened personally, and while many are, only the craziest MAGAs are willing to risk prison to do that.

Intimidation is the one neat political trick of the modern right, and it doesn’t work very well on the courts, which means that the postliberal agenda is forever running headlong into an institutional wall whose members are classically liberal by training. How does a movement of budding fascists solve that problem?

They’re going to have to infiltrate the judiciary, vacancy by vacancy.

Until now, they’ve been stuck trying to discredit it. Trump, for instance, has always encouraged Americans to view law as an arm of politics and judges as hacks who serve their partisan masters. Recall his dispute in 2018 with Chief Justice John Roberts over whether jurists can fairly be described as “Obama judges” and “Trump judges,” with the president arguing in the affirmative.

His pardons also tend to discredit the courts insomuch as they imply that the justice system is so corrupt and “weaponized” that he’s obliged to intervene to set things right—and not only in cases that stem from political disputes like January 6. Ditto for casually asserting that Barack Obama should be indicted for treason when he very obviously won’t be, another way to get Americans wondering if law enforcement is working properly and dispassionately.

Recently the Justice Department took a bold new step when it accused James Boasberg, the judge who presided in the El Salvador matter, of misconduct. Its complaint is preposterous as a matter of law, but it’s not supposed to be legally compelling, professor Steve Vladeck correctly notes. It’s politics. “Whatever the motive for the complaint,” he writes, “it seems quite clear that the government at the very least knows that its behavior will further erode public support and respect for federal district judges.”

That’s the point. The less respect the justice system has among Americans, the more support postliberals can expect to have if and when they eventually defy it. Trump has always justified his own corruption as a response to the supposedly greater corruption of his enemies; he’s following the same approach with the judiciary by delegitimizing it as a haven of ruthlessly political creeps.

By that logic, Emil Bove is the perfect nominee. If the right wants to “de-weaponize” the federal bench, it’ll need to start confirming some ruthlessly political creeps of its own. There’s no pithier insight into the character of the modern Republican Party than the fact that the hero of the Eric Adams incident earlier this year has been exiled to a think tank while the villain will be making law on the 3rd Circuit for the next 40 years, the very model of the sort of judge his party and its leader now seek to elevate.

Things to come.

And so here’s why Bove’s confirmation should persuade you to give up whatever little foolish hope in America you have left.

To begin with, eyewitnesses to serious government corruption now have a clear signal from the Senate that they shouldn’t bother opening their mouths. Erez Reuveni and the other whistleblowers had nothing to gain and everything to lose by placing themselves on the president’s enemies’ list, but they were willing to take that risk to try to keep a figure as unfit as Bove off the bench.

They did it for nothing, it turns out. After this, federal employees with knowledge of professional malfeasance by Trump nominees would need to be complete idiots to take the same risk. A willfully blind Senate isn’t interested in your testimony, so don’t make trouble.

Bove’s confirmation will also incentivize young right-wing lawyers to become ruthlessly political creeps themselves. I touched on that in May, but Quinta Jurecic addressed it at greater length today at The Atlantic. “The route to a plum judicial appointment may be distinguishing oneself as a bruiser willing to do anything for Trump,” she wrote about yesterday’s Senate vote. Unlike the Federalist Society all-stars of the president’s first term, Bove’s “path so far has demonstrated that total sycophancy to the president can be a fantastic career move for ambitious lawyers—especially those for whom other avenues of success might not be forthcoming.”

Either the smartest Republican attorneys will become Trumpist droogs or they’ll be bypassed for lesser lights whose postliberal zeal more than makes up for their lack of talent. The federal bench of the future will probably be dumber, and certainly nastier, than it is now.

A third reason to despair is that it isn’t just the supply of lousy right-wing jurists that’s about to increase. It’s the demand.

This is what I meant earlier about proof of concept: Even a narrow Senate GOP majority that contains reasonably sane figures like Susan Collins and Lisa Murkowski couldn’t muster the nerve to stop a clown like Bove. Conservatives like Mitch McConnell and the supposedly liberated Thom Tillis, each in their final terms, could have sunk his nomination but mindlessly supported him anyway because rubber-stamping Republican judicial nominees is the closest thing to an actual purpose this degenerate conference still serves.

If this is what a Senate controlled by Trump’s party is willing to approve in 2025, what might it be willing to approve in, say, 2027?

Consider that if McConnell and Tillis are replaced in the chamber by Republicans, those Republicans will almost certainly owe their seats to Trump’s support. They won’t just be MAGA, they’ll be diehard MAGA. Consider, too, that next year’s midterm Senate map favors the GOP, with Collins and Murkowski set to become even less relevant if the party gains seats. Republicans very well might gain enough of a cushion to ensure a majority in the chamber until the end of the decade.

Trump might soon have carte blanche on judicial nominees; in other words, a free hand to stack the judiciary with as many proto-fascist thirtysomethings as he can scrape together. “The republic legitimately might not survive,” data scientist David Shor said recently of that scenario. Having spent 10 years perverting their own branch of government out of fear of Trump, Senate Republicans are set to embark on a sustained project to pervert another. Not since the segregation era have we seen greater traitors to the constitutional order.

The last thing that’s going to flow from all this is that Democrats will inevitably react in, shall we say, unhelpful ways.

If you thought progressives were jonesing for court-packing circa 2020, wait until we have dozens of Emil Boves on the federal bench. Liberals can barely stand to have a judiciary led by originalists; they’re not going to stand for one led by a faction whose only jurisprudential principle is “Republicans win.” Extreme measures will be taken by Democrats to dilute the power of Bove-ish judges once they’re back in power that will further destabilize the country.

Leftists will also demand postliberal “Democrats win” judicial nominees of their own. “They already have them!” conservatives will reply, pointing to Sonia Sotomayor and Ketanji Brown Jackson, but they can—and will—do worse than both. Liberals radicalized by the Bove-ification of the bench won’t settle for a mix of Sotomayors and Jacksons on the one hand and Elena Kagans and Stephen Breyers on the other. They’ll want nothing but flunkies and knife-fighters. And they’ll have them.

In the end, Trump’s vision will be realized. Americans of all stripes will come to despise the bench as not just partisan, but as the venue where partisan politics plays out most viciously, with the highest constitutional stakes. Our stooge judiciary might become the most dangerous branch. Poor Roy Cohn—he would have loved it.