The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Coming Judicial Nomination Wars On The Right
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
On the other hand, Mike Fragoso--who is now Whelan's colleague at EPPC--suggests that many of the Republican judges who are eligible are refusing to take senior status, independent of Bove. I tend to agree with Fragoso. Judges have very idiosyncratic views on taking senior status. Maybe at the margins, someone interested in stepping down will not, but I am skeptical.
By my count there are 21 senior-eligible Republican court of appeals judges. Do I wish more of them would go senior? Of course. But I've wanted that for a while: 17 of the 21 were eligible in 2020. These judges themselves are the reason they won't go senior, not Emil Bove.
— Mike Fragoso (@mike_frags) May 30, 2025
Perhaps during a prior time, Whelan's post would have been enough to stop the nomination. But here, Whelan's post seems not to have had any effect on Trump's decision making. Indeed, senior officials in DOJ rejected Whelan's argument.
With Bove nominated, Whelan has now leveled up the discourse with a lengthy post critical of Bove. It reads like the sort of commentary that Whelan has provided about countless Democratic nominees. At the end, Whelan concludes "Republican senators who have the foresight and sense to prevent this scenario should defeat Bove's nomination." Again, this sentence is as much predictive as suggestive: he is telling Republican senators to block Bove's nomination as part of a line of defense against Trump picking future similar nominees. I have no idea how influential Whelan's post will be with Republican Senators, given that Trump has lined up solidly behind Bove.
Further, we can't separate these issues from President Trump's post last night that criticized the Federalist Society, and Leonard Leo in particular, for their advice on judicial nominees in during the first administration. And on the horizon is the specter that the three Trump Justices will soon have to resolve the legality of the tariff plan, which is the centerpiece of the President's entire economic agenda. The Gold Clause Cases comes to mind as an analogy. Let's see what kind of blue plate special the Chief tries to whip up.
As I've written before, there is a storm brewing that most people--inside and outside the judiciary--do not quite yet see. People might think they are pumping the brakes, when in fact they are slamming their feet on the accelerator. They think they are dousing the flames with water, when if fact they are spraying kerosene. They think they are averting crisis, when in fact they are driving towards it.
In the past, the most vigorous clashes over judges happened between the left and the right. I think the next round of wars will be on the right. The left can sit back and enjoy the fireworks.
Update: I thought of another analogy. A generation ago, a President nominated his lawyer to a federal judgeship. Conservatives screamed that this nominee was utterly unqualified for the person. The President flinched, withdrew the nominee, and appointed someone that was more palatable. That playbook may have worked in 2005, but it will not work in 2025. I can tell that Emile Bove is not Harriet Miers, and Donald Trump is not George W. Bush.
