So the Senate Confirmed an Authoritarian Crony to Your Court

Last week, the GOP-led Senate confirmed Emil Bove to a judgeship on the U.S. Court of Appeals for the Third Circuit. This was despite credible allegations that he was involved in the rank corruption leading to the dismissal of the charges against Mayor Eric Adams, and despite reports by whistleblowers that he had plotted contemptuous disobedience of various court orders, with a colorful catchphrase.

A federal judge’s tenure is for life, and Emil Bove is young. Moreover, impeachment and conviction are practical impossibilities for the foreseeable future.

So what does one do? Most of us just have to grind our teeth. But if you’re a judge on the Third Circuit, and you agree that Bove is unqualified, then there is another option. That is to treat Bove’s actions on the Third Circuit as a complete nullity.

How would that work? As background, on the federal appeals courts, most decisions are made by randomly selected three-judge panels. Those are then subject to potential en banc review—that is, review by all the judges of the court. En banc review is relatively rare, usually reserved for cases to resolve conflicting court precedents and other questions of “exceptional importance.”

With that in mind, the proposal is as follows: If Bove is on a three-judge panel, then the other two judges should decide the case between themselves, ignoring Bove. If the other two judges are in agreement, that’s simple enough. If the other two judges are split, where Bove’s vote would be the tiebreaker, then the case should be punted to en banc consideration. Similarly, the other two judges should not let Bove write any opinions. And if Bove does write opinions, those cases should be voted for en banc review, which would ultimately vacate the panel opinion authored by Bove in favor of the en banc opinion (authored by someone else).

Furthermore, at the en banc vote, Bove’s votes shouldn’t count. The Third Circuit has fourteen active positions, thirteen of which have been filled, counting Bove. On the current makeup, we could imagine that a thirteen-member vote was split 7-6 with Bove in the majority. Under the proposal, the rest of the judges wouldn’t count Bove’s vote, and would decide what legal effect a 6-6 vote would have—and then alter the final vote tally, with somebody switching their official vote accordingly. In this way, Bove’s tenure on the court might be for life, but it would not amount to much.

This may seem extreme; indeed I think it is. But so is Bove’s confirmation to the bench. Consider what we would do if a completely unqualified person was nominated to the bench—in the sense that they could not perform the job. Suppose they did not have any education or background in the law or they were functionally illiterate. Or suppose they vowed to decide cases by forms of divination. Such an appointment to the bench undermines the judicial role—enshrined in our Constitution. The responsible thing to do would be to circumvent their position on the bench, and ignore their attempted contributions. Other judges can use their good judgment and whatever formal mechanisms are available to ensure adherence to the rule of law. And that, I contend, is what we have with Emil Bove—but with respect to a lack of integrity and respect for the rule of law.

You may worry that this kind of proposal could become expansive—whereas now it is a weapon of the weak, it might be exploited to further ensconce majoritarian predilections. Potentially. But let me note that this proposal has serious costs—in terms of judicial efficiency and workload. These courts have crowded dockets and this proposal effectively removes one judge from contributing any work. Further, additional en banc cases create additional work. So there is a strong disincentive to employing the proposal. It should be used rarely, in an exceptional case where an individual shows themselves to be unfit for the judicial role.

Could this actually happen? Probably not, but a man can dream. To effectuate the proposal would require a lot of buy-in. In the first instance, on each panel, it would require the other participants to agree to ignore Bove. Now if those panel judges did not, the other judges could still vote to take that decision en banc. Consequently, this would take a majority of the active judges on the Third Circuit­—a majority of those judges could vote for en banc consideration, and thereby ensure Bove’s votes and opinions have no legal effect. At the moment, that means seven of the thirteen judges. There’s a pending nomination, and if that nominee is confirmed, then the proposal would require eight of the fourteen judges.

One might be tempted to look at the partisan breakdown to guess whether this is possible. And that might be the right method as a matter of prediction. But my contention is that the problem created by Bove’s confirmation transcends partisan disagreement. It would behoove all judges on the Third Circuit to affirm that theirs is a court of law. I contend that requires ensuring that all of your colleagues are competent for the judicial role—and if they are not, it requires taking necessary action to ensure they cannot wield the court’s power.

-- Guha Krishnamurthi