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In legal circles, my last name is a mixed bag. On the plus side, most people are amused that I share a name with a Justice I profoundly disagree with on most legal questions. On the downside, my name is constantly misspelled like the Justice, as Blackmun. According to the WestLaw Law Journal database, there are at least five citations to “Josh Blackmun.” (For academics, citations are the coin of the realm). In 2011, Judge Sykes kindly cited an article I co-authored with Ilya Shapiro in her opinion in Ezell v. City of Chicago. I was thrilled, until I realized my name was spelled, Blackmun. I put a call into the 7th Circuit’s clerk’s office, and the PDF was fixed later that day.

However, this correction from the L.A. Times may be my favorite!

(I Should note that my praise was qualified–see my article in National Review).

The Chicago Tribune, which syndicated the story, offered a similar correction.

The case of Texas v. United States has taken more twists and turns than I could have ever anticipated when I first started following it in November 2014. (Part of me wants to write another book about this case, but one at a time). The latest development left me speechless! I summarize the events in National Review Online, but frankly, this piece cannot do justice to what happened. Here is the introduction:

In December 2014, 26 states challenged the legality of President Obama’s executive action on immigration. Led by Texas, the states sought to immediately halt the federal government’s plans to defer the deportations of millions of aliens. Relax, the Justice Department told Judge Andrew Hanen in Brownsville, Texas. We won’t implement this program till February, the government assured the states. On that representation, Texas did not seek a temporary restraining order, and the court allowed the proceedings to stretch into February. Except it wasn’t true. By February, the Department of Homeland Security (DHS) had already granted relief to 100,000 aliens. Even worse, the Justice Department lawyers who repeatedly assured the court that nothing would be done until February knew that DHS was already granting such extraordinary relief. In an unprecedented order, Judge Hanen has now placed the Justice Department under his supervision to ensure that they act ethically. Texas had charged that DHS’s executive actions were in bad faith; now, Judge Hanen has charged that the Justice Department’s defense of those actions was also in “bad faith.” The Obama administration is certain to appeal this rebuke of its stunning actions. Even if the remedy should ultimately be modified, the undisputed facts, as Judge Hanen methodically demonstrated, show that their “conduct is certainly not worthy of any department whose name includes the word ‘Justice.’”

The long-and-short of it is that Judge Hanen has effectively placed under federal supervision Main Justice, to ensure any attorneys that practice in the 26 states that brought this suit attend an annual live ethics course on candor to the court.

First, Judge Hanen sent back to school all of the lawyers in Main Justice who litigate in the 26 states that challenged DAPA. They are required to take a three-hour legal-ethics case on “candor to the court.” And this has to be a real class taught by a “recognized ethics expert who is unaffiliated with the Justice Department,” not a “self-study or online study” course. Second, to ensure compliance, the Justice Department must appoint a person to certify annually that all attorneys who appear in the 26 states have completed the ethics course. This order will remain in effect until December 31, 2021.

Where the opinion jumps the shark, however, is that Judge Hanen requests the names and contact information all of the individuals who received expanded DAPA.

There is a fifth remedy that I frankly do not understand. The court ordered the government to “file a list of each of the individuals in each of the Plaintiff States given benefits” under DACA, including their names, addresses, and other personally identifying information. These records would remain sealed, but the states would be able to access them on a “showing by a state of actual or imminent damage that could be minimized or prevented by release of the information to one of the Plaintiff States.” This portion of the order is somewhat vague, but it would seem that Judge Hanen would allow the release of the identities of the aliens who benefited from expanded DACA if it would result in danger to the state’s interest. I am struggling to think of what would satisfy as good cause for release of this information, or why the court would even want this information. This remedy is inappropriate, and should be struck.

I suppose this information will help Texas and the other states revoke driver’s licenses, or other benefits awarded due to their grant of lawful presence. This is bizarre, and detracts from the otherwise important allegations made in the opinion.

I close with a suggestions–rather than scrambling to the 5th Circuit, Attorney General Lynch should address the matter directly to Judge Hanen in Brownsville.

At this very moment, lawyers in the Robert F. Kennedy Building on Constitution Avenue are frantically drafting an emergency appeal, or perhaps even a motion to disqualify Judge Hanen. Let me propose something different to diffuse the situation. Attorney General Loretta Lynch should personally submit a motion for reconsideration, and ask to appear before Judge Hanen in Brownsville to explain the situation. This sort of bold leadership would elevate to the highest ranks of government how important ethics and candor are, and signal to the court that this issue is being taken seriously. This will not undo the damage, but it will begin the process of restoring the justice in her Department.

DOJ screwed up here. They can attempt to rationalize it however they want, but the Holder Justice Department misled the court on a major separation of powers dispute. The ethics of the Justice Department transcend this case and this judge.

In National Review, I write that Trump’s SCOTUS shortlist gets two cheers–my guarded optimism is due to the fact that his announcement was equivocal of whether he would actually stick with this list. As for the first two cheers, the selections are important for four main reason.

First, his list of potential nominees did not all receive their law degrees in Cambridge, Mass., or New Haven, Conn.Second, Trump did not limit his search to the usual inside-the-beltway favorites. Third, for the first time in a generation, not a single judge from the D.C. Circuit Court of Appeals — often called the second-highest court in the land — made the Supreme Court shortlist.Fourth, this geographic diversity also instills a respect for the principles of federalism: Not all of the answers to our problems will come from the seat of the central government, many will come from the “laboratories of Democracy” in the several states.

Here is the introduction:

In his dissent in last summer’s same-sex marriage case, Justice Antonin Scalia lamented that the Supreme Court is “hardly a cross-section of America.” The problem, Scalia wrote, is that the most serious questions of constitutional law are resolved by a “strikingly unrepresentative” group of attorneys from elite circles. Donald J. Trump’s list of eleven potential nominees to the Supreme Court would fix that problem. Rather than focusing on the usual shortlist of well-credentialed jurists who live along the Amtrak corridor between Boston and D.C., Trump cast a wider net to provide better representation of our constitutional culture. I have expressed my serious doubts about Mr. Trump’s vision of constitutional law, but so long as he sticks with this list, I remain cautiously optimistic.

And here is my conclusion, which sounds a note of caution:

But I must temper my optimism with a note of caution: Mr. Trump stopped short of guaranteeing that he would pick someone from this list. In March, he unequivocally promised, “I will pick, 100 percent pick” from the list. Now, he would only say that these jurists will serve as a “as a guide to nominate our next” justice, and that the list was “representative of the kind of constitutional principles I value.” I have expressed my serious doubts about Mr. Trump’s vision of constitutional law, and this equivocal language leaves me doubting more. For now, I can only give it two cheers. If Mr. Trump wants the third cheer, he must convince us that this will not end up as a “If you like your justices, you can keep your justices” promise. This must be a promise to keep.

Indeed, after the article went to press, Trump last night tweeted that he may add new names.

My list of potential U.S. Supreme Court Justices was very well recieved. During the next number of weeks I may be adding to the list!

— Donald J. Trump (@realDonaldTrump) May 19, 2016

This is the sort of thing that weakens any confidence I have that he will stick with his promise.

On the third point, I was struck by Politico’s interview of Larry Tribe, among others, who were surprised by Trump’s decision not to pick the usual suspects, including Judge Kavanaugh or Paul Clement

While Trump’s list pulled in five judges from various state supreme courts, he passed over some of those long considered top contenders for any future Republican Supreme Court pick, like 6th Circuit Judge Jeffrey Sutton, D.C. Circuit Judge Brett Kavanaugh and former Solicitor General Paul Clement.

“The missing names … are even more interesting than the names on the list,“ said Harvard Law Professor Laurence Tribe, once considered a top Supreme Court possibility for Democrats.

Trump’s judicial roster includes a bevy of rock-ribbed conservative jurists, many of whom have résumés in Republican politics, ties to The Federalist Society and mentors among the most conservative figures on American courts. But it’s a list designed more to limit any blowback from conservative politicians than to identify a successor to the late Justice Antonin Scalia, a bracing intellectual who dominated conservative legal thinking during his three decades on the court.

With all respect to Larry Tribe, the last time he recommended a Republican nominee to the Supreme Court was in 1987, when he used every ounce of his ability to oppose Robert Bork–a conservative legal giant from the D.C. Circuit. He then turned around to endorse a Sacramento Republican, Anthony Kennedy, whom he knew would overturn Bowers v. Hardwick. Tribe is estopped from offering any comments on the credentials Republican nominees.

The Trump Campaign has released eleven possible nominees to the Supreme Court. From the federal courts of appeals, he has proposed Steven Colloton (CA8), Raymond Gruender (CA8),  Thomas Hardiman (CA3),  Raymond Kethledge (CA6), William Pryor (CA11), Diane Sykes (CA7), From the state Supreme Courts, he has nominated Allison Eid (Colorado),  Joan Larsen (Michigan), Thomas Lee (Utah), David Stras (Minnesota), and @JusticeWillett (Texas).

This list impresses me for three reasons. First, five of the jurists come from the state court system. We have not had a Justice appointed from a state court since Ronald Reagan plucked Sandra Day O’Connor from the Arizona Court of Appeals. Appointing jurists from the states will implicitly reinforce the importance of federalism–and that the federal Constitution is not the end-all, be-all of laws. Second, the nominees also embody a deep respect for originalism, which was the jurisprudential theory that Justice Scalia taught to a generation of attorneys and judges. Judge Sykes ruled in an important gun case, where she undertook an effort to understand and apply the original understanding of the Second Amendment. Third, he has selected jurists who have evinced a commitment to judicial engagement, and not a rote application of judicial deference. For example, Justice Willett of Texas has written a rigorous and intellectually rich discussion of judicial protection of economic liberty. I still harbor serious doubts about Mr. Trump’s views on constitutional law, but his advisers have served him well here. I hope he stays true to these nominees, and does not subject the judicial selection process to a terrific deal.