The Volokh Conspiracy
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Will Trump Ignore Geographic Connections When Making Circuit Nominations?
With the death of the blue slip, can the President just fill vacancies with the best available candidate?
At present there are two vacant seats on the Third Circuit: first, Judge Joseph A. Greenaway Jr. sat in New Jersey; and second, Judge Kent A. Jordan sat in Delaware. Yesterday, President Trump nominated Emil Bove to one of those seats, though it is not yet clear which one. I am not aware that Bove has connections to New Jersey or Delaware, though I understand he has ties to Pennsylvania, which is the other state in the Third Circuit. Contrary to common belief, a circuit seat does not belong by statute to a state. Only custom or tradition keeps a seat for a particular state. But once confirmed, the judge must live in that circuit, and that statute makes no reference to a particular state. (This requirement is observed inconsistently.)
So here is my question: in the wake of the Blue Slip's demise, can the President ignore any geographic connection with a circuit vacancy, and just nominate the best available candidate? In a state with two Republican Senators, there may be political pushback. But Trump will suffer no additional political harm if he alienates the Democratic senators from New Jersey or Delaware. Those Senators would convict and remove Trump the first chance they get.
If so, the process of picking circuit judges becomes a national search. The pool for potential candidates becomes much deeper.
With regard to this particular nomination, I worked with Emile Bove on the special counsel litigation. I found him to be a very smart, careful, and collegial attorney. In the leadup to oral argument, Bove was very responsive to my communications, and carefully considered our positions. Even where the defense disagreed with me and Tillman on particular points, Bove explained our position fairly to Judge Cannon. He had an encyclopedic knowledge of the very complex case. After I argued as amicus, Bove sent me a very gracious thank you note. He didn't have to do that, but he expressed his appreciation for our contributions to the case. It was a kind gesture.
It is true Bove lacks many of the elite credentials that some people value; I see that resume as a plus, and not a negative. Moreover, Bove took a case that few other lawyers would have taken: representing Donald Trump in a slew of criminal lawfare prosecutions. And he prevailed in the face of persistent criticism! This is the very sort of courage that I think will serve a federal judge well, far more than seeking access to yet another "inner ring."
