Canaries in coal mines are used to test the air. Because they are more sensitive to deadly gases than humans, if they die in the mine, they provide an early warning sign of danger.
As is now widely recognized, modern 21st-century autocrats generally do not take over in sudden, brutal displays of force. Instead, they poke and prod, looking to exploit weaknesses or places of vulnerability in the fabric of constitutional democracy.
Especially since he returned to the Oval Office, President Donald Trump has shown himself to be a master in the art of poking and prodding the American constitutional framework.
Especially since he returned to the Oval Office, President Donald Trump has shown himself to be a master in the art of poking and prodding the American constitutional framework. In the weeks following his inauguration in January, he sent a raft of unqualified Cabinet nominees to the Senate; most of them were confirmed. The president has exercised authority that rightfully belongs to Congress, and he has gotten very little pushback. His administration has deployed various strategies to avoid complying with adverse court rulings, and the conservative majority on the Supreme Court has mostly not been troubled by such avoidance.
In late May, Trump made another move familiar in the modern autocratic playbook when he nominated Emil Bove III to be U.S. Circuit Judge for the Third Circuit. Bove, who served as Trump’s defense lawyer in two of his criminal trials, has shown himself to be an eager MAGA spear carrier. The president previously rewarded his loyalty by appointing him to serve in the Department of Justice.
The day he announced Bove’s judicial nomination, Trump posted on Truth Social, “Emil is SMART, TOUGH, and respected by everyone. He will end the Weaponization of Justice, restore the Rule of Law, and do anything else that is necessary to MAKE AMERICA GREAT AGAIN. Emil Bove will never let you down!”
That statement was as revealing as it was stunning. In the American legal tradition, judges are not supposed to make decisions in the service of political goals, no matter how noble.
People of a certain age may remember the film “Judgment at Nuremberg,” which released in 1961 at the height of the Cold War. A fictionalized movie about the trial of 16 German jurists and lawyers who served the Nazis, it drove home the criticism of ends-oriented judging.
Or recall the testimony given by Chief Justice John Roberts when his nomination to the Supreme Court was being considered by the Senate Judiciary Committee: “Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules, they apply them… They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see the umpire.”
He went on to make clear that, in his view, “Judges are not politicians who can promise to do certain things in exchange for votes… If I am confirmed, I will confront every case with an open mind…I will decide every case based on the record, according to the rule of law, without fear or favor…”
The president himself has frequently criticized judges on the grounds that they were pursuing a political agenda. In 2018, he accused Jon S. Tigar, judge of the U.S. Court of Appeals for the Ninth Circuit, of being “an Obama judge” after he ruled in favor of an immigrant in an asylum case.
In April, Trump claimed that judges who issued unfavorable rulings against his administration were guilty of exhibiting “political bias and judicial overreach.” He told supporters, “We cannot allow a handful of communist radical-left judges to obstruct the enforcement of our laws and assume the duties that belong solely to the president of the United States.”
Apparently, ends-oriented judging is only good when the president approves of the ends a judge serves. And in Emil Bove, he has found a judicial nominee who will serve the president’s agenda.
Bove has shown his fealty to Trump’s policies in several ways. In one case, he was happy to use his position in the Justice Department to direct line prosecutors to drop bribery charges against New York Mayor Eric Adams. He wanted the mayor to devote himself to pursuing the president’s anti-immigrant agenda. Bove held out the prospect that Adams’ prosecution could be restarted if he did not comply.
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In very Trumpian terms, Bove explained, “[T]he pending prosecution has unduly restricted Mayor Adams’ ability to devote full attention and resources to the illegal immigration and violent crime that escalated under the Biden administration.” Bove even made the surprising admission that the Justice Department “reached this conclusion without assessing the strength of the evidence or the legal theories on which the case is based.”
In January, Bove fired “prosecutors who had been hired for temporary assignments to support the Jan. 6 cases, but were moved into permanent roles after Trump’s presidential win in November. Bove said he would not ‘tolerate subversive personnel actions by the previous administration.’”
Last week, in an appearance before the Senate Judiciary Committee, he denied the firings were in any way political. Bove claimed the prosecutors were terminated for the “heavy-handed tactics” they used against the Jan. 6 insurrectionists.
Further evidence of Bove’s willingness to do what is necessary to advance the president’s MAGA agenda was provided by a whistleblower, former Justice Department attorney Erez Reuveni, who indicated that Bove told Justice Department lawyers that “the department should tell courts ‘f**k you’ and ignore their orders…” so that the administration could carry out the president’s “aggressive deportations.”
Reuveni, who was fired after he “told a federal judge an immigrant had been deported in error,” supplied the committee with emails and texts to back up his claims. Asked about Reuveni’s accusations, Bove said he “never advised the DOJ to violate a court order. However, he did not directly deny making the ‘f*** you’ comment, saying instead that he had ‘no recollection of saying anything of that kind.’”
Democratic Senator Dick Durbin of Illinois, ranking member of the Senate Judiciary Committee, was right to say about Reuveni’s information: “This is about more than a random f-bomb. This is a declaration of defiance of our courts at the highest level of our government by a man who now seeks a lifetime appointment to one of the highest courts in our land.”
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Securing appointments of loyalists who will do whatever is needed for the MAGA cause is a key to the president’s desire for unchecked power. More chillingly, Trump may be willing to evade court orders or engage in what scholars call “legalistic non-compliance” to achieve that end. But because defiance is costly and runs the risk of precipitating congressional or public blowback, what the president wants is for courts to approve his plans and, in so doing, lend them legitimacy. The best way to achieve that goal is to appoint people like Bove to the bench.
Autocrats love the law — as long as it is on their side. Princeton Professor Kim Lane Scheppele described what she calls “’legalistic autocrats’ who deploy the law to achieve their aims” and seek to “use constitutionalism and democracy to destroy both.”
Schepple said, “We can spot the legalistic autocrats while they are still consolidating power because they have ambitions to monopolize power and tend to use the same toolbox of tricks.”
Enter Emil Bove, the perfect Trumpian judge. Like a canary in the coalmine, if he survives Senate scrutiny, it will send a powerful signal to the president that it is safe to nominate others like him to the bench. That way, the president can turn the rule of law into the rule of loyalists.
