Democrats and court watchers express concern for controversial new member of consequential 3rd Circuit Court

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With the confirmation of controversial judicial nominee Emil Bove, President Donald Trump has shifted the political alignment of the U.S. Court of Appeals for the 3rd Circuit, which holds jurisdiction over the states of Pennsylvania, Delaware and New Jersey.

Bove was confirmed in a fiercely divided 50-49 vote Tuesday. Two Republican senators — Susan Collins of Maine and Lisa Murkowski of Alaska — joined all Democrats in opposing Bove for the remaining Pennsylvania seat on the court. Democrats criticized Bove for politicizing the Department of Justice during his few months as deputy attorney general.

That includes firing career federal prosecutors who convicted Jan. 6 rioters and ordering prosecutors to drop the corruption case against New York Mayor Eric Adams, reportedly in exchange for the mayor’s collaboration on immigrant crackdowns. A whistleblower also recently told Congress that Bove told Department of Justice officials that they may have to disobey court orders.

“Donald Trump appointed Emil Bove, his personal lawyer, to a senior position at the Department of Justice and got exactly what he wanted—someone to weaponize the DOJ to serve Trump’s political ends,” Maddie McComb, a spokesperson for Sen. Chris Coons, D-Del., said in an email to WHYY News. “The people of Delaware, Pennsylvania and New Jersey deserve qualified, impartial jurists who fairly consider every case before them. Bove has demonstrated that he is loyal to Trump first and the law second.”

Coons had expressed concern about the appointment months ago.

“It’s a critical court,” he told WHYY News in March. “There is a real risk that the Trump administration will nominate someone who is well outside the judicial mainstream, not just a conservative.”

Until now, the 3rd Circuit had an even split with six judges appointed by Democrats and six by Republicans, including three by Trump. Bove’s ascension to the court will give Republicans a majority.

The court is seen as “critical” due to Pennsylvania’s perennial distinction as a major swing state with the potential to solely determine a presidential election, which has led to many legal challenges over election law. After Joe Biden won the 2020 election, the Trump campaign challenged election officials in Pennsylvania. A federal district court ruled against the campaign which then appealed up to the 3rd Circuit. The court responded that Trump’s claims had “no merit.”

Kadida Kenner, CEO of the New Pennsylvania Project and co-chair of Why Courts Matter – Pennsylvania, said that Bove is “unfit for the bench” and that she worries that the court’s new makeup means the outcome of a similar election case will be different next time.

“My first thought when I heard the news was, I hope [Bove] never gets to hear a voting rights case that’s going to impact Pennsylvania,” she said. “I think he was put in place specifically to make decisions about our 2026 and 2028 elections here in the commonwealth. I think this is all strategic. I think he was put in place to carry out what it is he’s supposed to do.”

Sen. David McCormick, R-Pa., who voted for Bove’s confirmation, did not respond to requests for comment. In a letter to the editor of Lancaster Online, David Ehrlich of Manheim Township said that McCormick did answer his inquiry about the choice.

“President Trump has nominated a team of disrupters to deliver on his promise of change,” McCormick responded in part, according to Ehrlich. “Trump deserves to have a strong team in place to make America safer and more prosperous.”

With another vacancy still to be filled, the president has another opportunity to further cement his influence on the court. He recently nominated Jennifer Mascott to that seat. Mascott clerked for Supreme Court Justices Clarence Thomas and Brett Kavanaugh during his tenure on the Washington, D.C. Circuit Court. She also served in the Department of Justice during Trump’s first term, and currently works in the Office of White House Counsel.

“The incredible people of Delaware, Pennsylvania, and New Jersey have Great Confidence in Jennifer,” Trump wrote on social media. “She will be a STRONG Judge, and protect the Rule of Law.”

Mascott will fill a “Delaware seat.” Coons criticized that choice, as well.

“Her key qualification appears to be that she works in President Trump’s White House Counsel’s Office,” he said in a public statement. “She has never been a judge of any kind, yet she is nominated to one of the highest judicial posts in the country.”

Coons also criticized the selection process, saying it went against the long-standing Senate custom in which home-state senators are given significant influence over the selection of federal judicial nominees for district and circuit courts in their states. When a president nominates a judge to a federal appeals court, the Senate Judiciary Committee traditionally sends a blue-colored form — or “blue slip” — to the senators, allowing them to approve or object to moving forward with the nomination.

Historically, a negative or withheld blue slip could effectively block a nominee from receiving a hearing or vote. Traditionally, nominees boast strong ties to the state in question.

“That was not the case this time around,” Coons said. “The Trump administration has now nominated someone with whom we have never met and who has little–if any–connection to our state or to the Third Circuit… As far as we know, her relationship to Delaware is confined to a vacation beach house she sometimes visits in our state.”

Kenner agreed, saying “it’s a sad day.”

“It’s horrifying what is happening to our judicial system and in our coequal separate branches of government,” she said. “The fact that the blue slip no longer means anything … It’s heartbreaking.”