This is an interesting development:
Trump recently appeared to declare war on the Federalist Society, the powerful conservative legal advocacy organization that played an essential role in his election both in 2016 and 2024. After one of his first-term appointees ruled against him in a major challenge to his tariffs, Trump launched a public tirade against the former chair of the group, Leonard Leo, who Trump described as a “sleazebag” who “probably hates America” before blaming the group for “bad advice they gave me on numerous Judicial Nominations.”
But the more tangible potential rupture with at least parts of the conservative legal movement is coming over Trump’s decision to nominate Emil Bove — formerly Trump’s criminal defense lawyer, currently Trump’s enforcer at the Justice Department — to the U.S. Court of Appeals for the Third Circuit.
Apparently, the conservative legal establishment has been speaking out and the MAGA wingnuts are not happy.
Bove is a thug who has been doing Donald Trump’s bidding since he’s gone to DOJ, targeting political enemies and letting his allies off the hook. The legal establishment thinks that may not be the best thing for the judiciary. Imagine that.
But don’t count on the Senate Republicans who are little more than dancing puppets for whatever Dear Leader demands:
[B]ased on how Trump’s second term has gone so far, it’s clear Senate Republicans will be reluctant to tank one of his nominees.
That’s particularly true because the opposition to Bove has produced an aggressive defense from Trump’s most ardent defenders in the conservative legal community. The Article III Project quickly produced a stream of articles and commentary supporting Trump’s choice — largely, it seemed, on the grounds that Bove would be a reliable supporter of Trump’s political agenda and legal positions.
Mike Davis, the group’s founder and onetime counsel to Senate Judiciary Chairman Chuck Grassley (R-Iowa), lauded the appointment while tweaking both ends of the opposition. “The left fears Emil Bove because he’s effective,” Davis said. “The establishment right resents him because he refuses to play by their rules.”
Here’s the real nightmare. Bove is frequently mentioned as a top Supreme Court choice should one of the current justices retire or die.
There are many quotes from conservatives suggesting that we need checks and balances. Yeah, no kidding. Too bad they didn’t think about that when McConnell and Trump were manipulating the process to give them the majority on the court that they sought. Why would anyone think they had any limits now?
It’s been a long time coming.
A large and perhaps uncomfortable question for mainstream legal conservatives looms over all of this: What responsibility does the Federalist Society itself have over the state of American politics at the moment?
Few people would even know who Emil Bove is right now if the Federalist Society-approved conservative justices on the Supreme Court had not devised a doctrine of presidential criminal immunity last summer that allowed Trump to bypass a trial on the 2020 election indictment, arguably his biggest hurdle to the White House.
The legal theories that the Trump administration has invoked in support of its most aggressive moves on a range of issues also have their roots in longstanding conservative legal doctrines promoted by the Federalist Society and other members of the conservative or GOP legal establishment.
You can trace Trump’s position on congressional appropriations — essentially, that he can ignore them — to President Richard Nixon.
You can trace Trump’s position on staffing the executive branch — effectively, that he can fire anyone he wants whenever he wants, despite what Congress wrote into law — to the unitary executive theory developed under President Ronald Reagan.
And you can trace Trump’s position on laws passed by Congress — effectively, that he can ignore whichever ones he wants, particularly if he claims that there is some sort of emergency — to President George W. Bush and also, famously, to Nixon.
The criticism of these conservative legal theories was not obscure. Many lawyers and scholars argued over the years that these doctrines, if seriously adopted, would give too much authority to the president; that they would improperly diminish the role of our elected representatives in Congress; that they would eviscerate independent agencies and diminish the professionalism of the civil service; and that they would make the presidency both monarchical in nature and highly vulnerable to corruption.
They own this.
On the other hand, we need for them to have some limits now and do whatever they can to stop it. Democrats don’t have any power to do so. And pretty much the most they can do at this point is for establishment Republican judges to decide not to retire during Trump’s term. The good news is that some are apparently doing that. But will it be enough?
I guess the real question comes back to the Supreme Court and if the majority are still associated with the federalist society or if they have all succumbed to Fox News brain rot and Trump delirium.