Opponents of Emil Bove, the newly-confirmed judge to the US Court of Appeals for the Third Circuit, argue he must recuse himself from most cases related to President Donald Trump. These arguments have no basis in precedent and ignore the fact that appeals judges nominated by presidents of both parties have routinely served on cases involving those administrations.
One only needs to go back to then-District of Columbia Circuit Judge Brett Kavanaugh to verify this point. Kavanaugh served for more than four years in President George W. Bush’s White House, most prominently as staff secretary. Bush and Kavanaugh necessarily had an exceptionally close relationship, and Kavanaugh was, by all accounts, very loyal to Bush.
The US Court of Appeals for the District of Columbia hears cases involving administration policies on a regular basis. Kavanaugh, after a tumultuous, years-long confirmation process during which he was accused of partisanship, was confirmed in 2006.
Yet he was not forced to recuse from hearing disputes over Bush administration policies as a matter of routine. For instance, he didn’t recuse in Kiyemba v. Obama, a case argued in 2008 but decided the next year challenging Bush administration detention policies of enemy combatants.
Another D.C. Circuit judge adopted the same general principle: Merrick Garland, who had served as principal associate deputy attorney general under President Bill Clinton prior to his own nomination. Garland didn’t routinely recuse from most cases related to Clinton.
He instead recused himself from cases on which he worked as deputy attorney general. That’s as it should be: If a judge has worked on a particular case during his administration service, then recusal is mandatory.
Bove opponents cite the recusal standard outlined in 28 U.S.C. § 455, under which a judge must recuse if his impartiality is reasonably questioned. This recusal attack is the latest example of the slew of pretextual “ethical concern” hit jobs targeting conservative judges and justices.
These so-called ethics guardians are nothing of the sort. They want to use ethics as a smokescreen to impose recusal standards on judges with whom they disagree. Several lawyers and professors have launched similar attacks against Supreme Court Justices Clarence Thomas and Samuel Alito.
The standards used against Bove, who served as Trump’s private personal defense attorney in several cases and most recently served in the Justice Department, illustrate their own absurdities.
They don’t claim that Bove must recuse from all cases. Rather, they choose to adopt the “most cases related to Trump” criterion—but don’t attempt to articulate what cases would be proper for Bove to sit on and which wouldn’t be. If Bove worked on a case during his time at DOJ, for instance, he must recuse.
Many cases “related to Trump” will come before the Third Circuit on which Bove didn’t work. Indeed, many Trump policies will be implemented in two or three years, long after Bove’s confirmation.
His opponents often cite Bove’s criminal representation of Trump in Washington, New York, and Florida. While Bove would need to recuse from litigation related to these cases, he will never have to worry about the prospect because those jurisdictions are in other circuits.
The commentary to the recusal provision of the Code of Conduct for US Judges makes clear that failure to recuse is a judicial decision that isn’t a cognizable basis for a misconduct complaint. That’s why Southern District of Florida Magistrate Judge Bruce Rinehart, who had expressed virulently anti-Trump views as a private citizen, didn’t face misconduct complaints for signing the warrant that authorized the Mar-a-Lago search.
Critics say that a failure to recuse can cause a reversal and new trial. However, Bove isn’t a trial judge. We look forward to litigants’ appeals for Bove’s recusal before the majority-constitutionalist Third Circuit, which will be cemented should Jennifer Mascott be confirmed by the Senate. We have no doubt that the en banc court would reject these amorphous recusal standards and affirm Judge Bove’s participation in cases that are, in some form, related to the president.
Bove is no exception to the settled norms applied to both liberal and conservative nominees. We expect he will follow the same standard adopted by judges from both parties: recusal when legally required, not when politically demanded. And if his record is any indication, Bove will serve with distinction and integrity on the Third Circuit for decades to come.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.
Mike Davis is founder and president of the Article III Project and was the Republican Chief Counsel for Nominations in the Senate from July 2017 to January 2019.
Will Chamberlain is senior counsel at the Article III Project and formerly was publisher and editor-in-chief of Human Events
