Yesterday, I mused on whether the President may ignore geographic constraints when selecting circuit court nominees. The impetus behind that post, of course, was Emil Bove's nomination to Justice Alito's old seat on the Third Circuit, even though Bove has no clear geographic connection to New Jersey. At the end of my post, I offered some praise of Bove, at least based on my interaction with him during the Special Counsel litigation.
Yet, there is strong opposition to Bove on the right. On May 19, Ed Whelan described Bove as a "DOJ Henchman." Whelan closed with an admonition: "Picking Bove would send the opposite message, and it might well deter some sitting judges from stepping down from active service to create more vacancies that Trump could fill." Whelan's subtle message was that Trump should pick someone else, or else he will get fewer vacancies. This statement was as much predictive as it was suggestive--he was signaling to the Bush I and II judges they should not give up their seats to Trump. Jon Adler expressed a similar message on X, saying that fewer judges may take senior status if the "caliber" of Trump's nominees are weaker.
Whether the White House wants to acknowledge it or not, the caliber of its early judicial nominations will affect the number of vacancies it gets to fill. This is why the Bove nomination was a risky pick (even apart from the merits). https://t.co/HV6uD7gsf9
— Jonathan H. Adler (@jadler1969) May 29, 2025
