The Case for Retaining Faith in Courts That Trump Is Slowly Corrupting

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Last week, Senate Republicans narrowly confirmed Emil Bove to a lifetime seat on a federal appeals court over the objections of pretty much everyone who cares about preserving an impartial judiciary. Bove has performed a series of cartoonishly corrupt misdeeds on President Donald Trump’s behalf from his perch in the Department of Justice, manufacturing the crooked bargain to drop charges against New York City Mayor Eric Adams and firing prosecutors who worked on Jan. 6 cases. Multiple whistleblowers have alleged that Bove, Trump’s former criminal defense attorney, instructed his staff to defy the courts if necessary to deport immigrants without due process and lied to Congress at his hearing. This egregious misconduct was not a deal-breaker for Senate Republicans, who rushed through his confirmation to avoid even more damning revelations from coming out before the vote.

But Bove will step into a judiciary that has not yet been entirely degraded by Trump’s influence. There are still plenty of courageous judges in the lower courts, and many of them have spent the past six months fighting vigorously against the president’s abuses of office. A trio of our finest district court judges, and their unflinching battle for equal justice, is the subject of Reynolds Holding’s new book Better Judgment: How Three Judges Are Bringing Justice Back to the Courts. Holding is a journalist, lawyer, and research scholar at Columbia Law School. On this week’s episode of Amicus, he spoke with Mark Joseph Stern about what we can learn from these three judges—Carlton Reeves, Martha Vázquez, and Jed Rakoff—in the shadow of Trump’s attempted transformation of the courts. An excerpt of their conversation, below, has been edited and condensed for clarity.

Mark Joseph Stern: Emil Bove is one of Trump’s most corrupt hatchet men. More than 900 former Justice Department officials urged the Senate to vote him down, saying his confirmation would be “intolerable to anyone committed to maintaining our ordered system of justice.” And yet he has now been confirmed as a judge. We just talked about three judges who are the polar opposite of Bove, but now they’re serving in the same judiciary with him. What are we supposed to make of the courts as a whole when these two incredibly different kinds of judges are serving side by side in the system? 

Reynolds Holding: Obviously, we should be concerned. We rely on a president to nominate good people. And, surprisingly enough, there was a study very recently by two professors—one from the University of Virginia, the other from New York University School of Law—who looked at Trump-appointed judges and came to the conclusion that many are very well qualified. Conservative, yes, but honest, effective, and well credentialed, surprisingly so. When we pick out Bove or Aileen Cannon or Matthew Kacsmaryk, that’s worrisome. But I don’t think it’s to the point where we really have to condemn every judge that Trump has nominated. We have to depend on the system to come up with good, qualified, honest judges. Clearly, there are some that are not.

We need a diverse judiciary. We need more minorities. We need people with different perspectives, who have a deep appreciation of what people go through. So, yes, we should surely be concerned. But judges are limited, right? There are limits on what they can do. They can’t make policy and reach out for cases. Cases must be filed, brought to them. There’s a lot of room to interpret it, but there is law, and there are certain facts. You have to deal with the facts before you. You have to apply the law before you. If you get it wrong, you have courts above you who stand to correct you. So it’s not as if the guy can go crazy. And, look, what’s the alternative? I mean, many people say: Well, judges should have less power. We should leave it to Congress, which is far more democratic. But do we really want to rely on this Congress to be effective in any way?

One of the arguments that liberal skeptics of the courts often make—and I guess it’s an argument I’ve made—is that the law is just not a helpful tool for the left, because no matter how many fabulous judges might be fighting for equality, conservative judges are always going to contort the law to benefit the rich and powerful. I find that critique pretty persuasive given this Supreme Court’s incessant distortions of the law to favor the Republican Party and its donors. But judges don’t have the luxury of giving up on the law, unless they simply quit. And as we’ve discussed, the three judges in your book show different ways to keep faith in the law and, in fact, use it as a tool for good even when they know that SCOTUS may well shoot them down. How do you think these judges manage to hold on to that sense of purpose? 

It’s in their nature. It’s in their background. They are committed to the idea of lifting people up. Reeves and Vázquez were among those people. So they don’t lose that drive to do what they think is right. Rakoff is a complicated guy, but he is as committed as anyone to standing up to the oligarchy. How do they keep that point of view? These people get shot down a lot. It’s really quite extraordinary. Vázquez kept giving under-guideline sentences to people under the felons-with-firearms statute, which had a mandatory sentence on repeat offenders. Her interpretation of that statute led her to not apply it in the case before her. And she kept getting reversed—to the point that a particular case went up three times to the 10^th Circuit, and the 10^th Circuit got annoyed and said: Look, you’re wrong. You’ve got to give them this longer sentence. But luckily for her, there was a parallel case making its way to the Supreme Court, and the justices eventually agreed with her interpretation.

So these people win. I think they say: Look, I may lose, I may be reversed, but every now and then I win. And I think that has to be inspiring for them. The wins make the whole enterprise work. Their job is to follow the law. But they say: Well, maybe if I can push a little bit, maybe the law will change. And sometimes it works.

What do you think the rest of us can learn from that attitude—specifically, their decision to just keep pushing in the face of a lot of setbacks, because there might still be a victory or two around the corner? 

First of all, we need courts, and we should not just disregard the judicial system by concluding that there are judges out there who don’t follow the law, or follow the law in the wrong directions. If we give up on the courts, we’re going to take away a really essential element of our ability to be Americans. Let’s think about what courts are for. We go to court to seek redress when we have an issue. Courts often act as whistleblowers, bringing up problems that the legislature needs to address. They often come up with decisions that bring people together by reasoning that the law should be a certain way. And this also has the effect of encouraging not just legislators but all people to support that point of view.

Courts are just about the only place where facts—real proven facts—come out. This whole task of seeking the truth, of having the facts come out, is very important to people’s ability to participate in our democracy. So I think the message is: Don’t give up on the courts and don’t forget that, even when judges don’t do jobs in a way that you agree with. They’re an essential element of our democracy—of seeking justice and redress when a real wrong has been done to you, when your civil rights have been violated, when you’ve been a victim of a crime. Courts still have a very important role to play, and we need to not forget that.

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