Trump Appointees’ Debut Marks Third Circuit’s Conservative Tilt

A more conservative Third Circuit will debut at en banc arguments, as two new appointees of President Donald Trump are expected to hear their first case.

Judges Emil Bove and Jennifer Mascott will join other members of the appeals court on Wednesday to weigh a New Jersey ban on assault rifles. Their additions cement a conservative majority on the Philadelphia-based appeals court, as Trump will now have appointed six members.

Bove, a former DOJ official alleged to have suggested that other government lawyers disobey court orders, had a tumultuous path to the bench, facing intense scrutiny from Democrats over the claims. Bove has denied the whistleblower reports.

Thomas Vanaskie, a former Third Circuit judge, acknowledged that the court will likely be more conservative with the additions of Mascott and Bove. “The ideology of the individual judges does play a role, and it always has,” he said.

The Third Circuit may still not be as attractive to conservative litigants as the Fifth and Sixth Circuits, since most of its district courts aren’t themselves stacked with Republican appointees. The Western District of Pennsylvania is the sole exception, as eight of the 10 active judges are Trump appointees.

But the Third Circuit has had a number of significant Second Amendment cases in recent years, including Wednesday’s argument on the constitutionality of New Jersey’s ban on assault rifles and high-capacity magazines. And their presence could be particularly important in election-related litigation, as the court hears federal cases from the key swing state of Pennsylvania.

On Tuesday, Bove joined other conservative members of the court in saying he wanted the full court to rehear a ruling that found a requirement that voters correctly date their envelopes for mail-in ballots in Pennsylvania was unconstitutional.

Bove will be writing separately on the denial of en banc rehearing, according to a footnote in the order.

Robert Luther III, a former White House lawyer who worked on Trump’s first term judicial nominations, said he expected both Bove and Mascott to often write separately, even though the court hasn’t traditionally been one with many dissents or published opinions.

Luther said he wasn’t surprised by Bove’s separate opinion in the voting case, which will be published in the future. “He didn’t go to the bench to be a wallflower,” Luther said of Bove. “He’s going to make his presence felt.”

Open Seats

Trump almost didn’t have seats to fill on the Third Circuit.

Then-President Joe Biden had tapped New Jersey attorney Adeel Mangi to fill the seat of Barack Obama appointee Joseph A. Greenaway Jr. But Mangi, who would’ve been the first Muslim federal circuit court judge, saw his nomination languish in the Senate under attacks from conservatives and some Democratic hesitation, and it ultimately expired without ever getting a floor vote.

The Biden White House also didn’t nominate anyone to the vacancy created by Kent Jordan, who gave eight months notice that he’d retire this past January.

If both seats had been acted on, Biden would’ve appointed five judges to the circuit, and eight of the court’s 14 active members would be Democratic appointees. Instead, there are eight Republican appointees to the court with the latest Trump additions.

Conservative Credentials

Mascott, who clerked for Justice Clarence Thomas, also came under scrutiny for a lack of geographic connections to the Third Circuit. She’ll be based out of the Delaware seat, but isn’t licensed to practice law there. Property records show she owns a home near a Delaware beach, but her lack of ties drew criticism from the Democratic senators for the state.

Mascott is well regarded in conservative circles. She served in the Justice Department’s Office of Legal Counsel during the first Trump administration, and during the second one has been a White House lawyer.

Bove also clerked for then-US District Judge Richard Sullivan in Manhattan and Judge Richard Wesley on the Second Circuit.

After working as a federal prosecutor in Manhattan and at a New Jersey law firm, Bove’s career shifted in 2022 when he started working with Todd Blanche, now the deputy attorney general, in defending Trump from criminal probes.

After Trump’s return to office, Bove landed a top job at the Justice Department. It was there that Bove was the public face behind number of issues that came under fire, including the move to dismiss federal criminal charges against New York City Mayor Eric Adams (D) over the protests of senior Manhattan prosecutors, and his handling of deportation flights despite a court order against them by Chief Judge James “Jeb” Boasberg in Washington.

Vanaskie said that, even with the allegations of disobeying court orders, the sitting judges will likely welcome Bove as they would any new appointee. They could be working together for decades, and the circuit has always placed a premium on good relations, said Vanaskie, who retired from the bench in 2019.

“It was a very collegial court, and I expect it to stay that way,” Vanaskie said.

Both judges could be considered for a future Supreme Court vacancy. Luther, a law professor at George Mason University, said they have the resumes that are typically expected for potential justices, including federal clerkships and government service.

He said their written work on the circuit will play a significant role, if a high court seat were to open. “But I don’t think it would be unreasonable to think that either of them could be potential contenders for the Supreme Court at some point, during this term or in a future Republican president’s term,” Luther said.