Trump Judicial Pick, A Child Of Jewish Refugees, Calls Racism Allegations ‘Hurtful’

Courtesy Antonin Scalia Law School archives

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Kevin Daley Supreme Court correspondent
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  • Republicans and Democrats alike chided judicial nominee Steven Menashi during a confirmation hearing Wednesday and said he must be more forthcoming about his legal work for the Trump administration. 
  • Some liberal commentators have accused Menashi of racism in view of op-eds he wrote in college and a 2010 law review article that defended Israel’s status as a Jewish state. Menashi called those charges “hurtful.”
  • Menashi is a lawyer in the White House counsel’s office and previously served as the top attorney at the Department of Education. He was also a professor at George Mason University’s Antonin Scalia Law School.

President Donald Trump’s nominee for the 2nd U.S. Circuit Court of Appeals had a difficult outing before the Senate Judiciary Committee Wednesday.

Allegations of bigotry dogged Steven Menashi’s nomination ahead of Wednesday’s proceedings, stemming from a law review article the attorney wrote in 2010 that MSNBC host Rachel Maddow styled a “highbrow argument for racial purity.” Arguments over process eclipsed those charges, however, as Republicans and Democrats alike faulted Menashi for dodging questions about legal work he performed for the Trump administration.

“Because of my family’s experience, this country’s commitment to the rule of law, to equal justice for each individual regardless of their background, and to a fair and impartial judiciary, has special meaning to me,” Menashi told the committee. He elsewhere called the controversy surrounding his nomination “hurtful.”

Menashi’s parents are Jewish immigrants who fled to the U.S. to escape persecution in the Middle East. Menashi described that history at some length, noting his relatives survived violent pogroms in Baghdad while others died in the Holocaust.

The allegations of racism relate to college writings and a law review article Menashi published in the University of Pennsylvania Journal of International Law called “Ethnonationalism and Liberal Democracy.” The article’s purpose is to rebut the common charge that Israel’s unique identity as a Jewish state is incompatible with modern principles.

To that end, Menashi wrote that many advanced democracies actively cultivate a sense of shared identity among their citizens. The result of those efforts, Menashi said, is higher levels of political engagement and social trust, which are themselves good for democracy. While that sense of shared identity may have a racial or ethnic basis in some countries, Menashi told the committee that American identity is generally political or intellectual.

“I think in the United States our national identity is largely based on shared political views that are articulated in the Declaration of Independence and in the Constitution,” Menashi said. “And I think we do have a shared identity as Americans but it is often based on those core commitments to protecting individuals rights and our constitutional traditions.”

Anti-Menashi demonstrators loudly chanted slogans outside the chamber that sometimes drowned out the nominee’s opening statement. It was the second day of such protests. Activists affiliated with Demand Justice, a liberal judicial group, rallied on Capitol Hill Tuesday and briefly occupied the offices of Sens. Chris Coons, a Delaware Democrat, and Thom Tillis, a North Carolina Republican.

Carrie Severino, chief counsel of the conservative Judicial Crisis Network, described the scene as “chilling” and commended Menashi’s overall performance.

“Particularly chilling was the shameful mob trying to shout-down Menashi as he was describing his parents’ flight from religious persecution in Iraq,” Severino said. “Mr. Menashi deserves quick confirmation to the 2nd Circuit where he will be another great judge.”

The protesters’ tactics drew a reprimand from GOP Sen. Lindsey Graham of South Carolina, who chairs the Judiciary Committee.

“I think it will serve us well to stick together and fight back,” Graham told committee members of the demonstrations. (RELATED: Supreme Court Lets New Trump Asylum Restrictions Take Effect)

Sen. Dianne Feinstein of California, the ranking Democrat on the Judiciary Committee, said she agreed with Graham’s comments. She also gently pushed back against liberal critics who cast Menashi’s article as bigoted, while cautioning that certain claims warrant further scrutiny.

“I understand that Mr. Menashi’s overall thesis in this article was that the state of Israel can be both a Jewish state and a liberal democracy,” Feinstein said. “I happen to agree with that, and I think that’s an important context.”

Demand Justice Executive Director Brian Fallon, a former Hillary Clinton aide, reacted incredulously on Twitter.

Yet Feinstein was sharply critical of Menashi’s refusal to identify policy areas in which he gave legal advice as a government lawyer. Democrats on the panel pressed Menashi as to whether he advised White House officials on asylum policies or family separation at the border. They also inquired about his work as acting general counsel at the Education Department, which rescinded Obama-era guidance on campus sexual assault adjudication during his tenure.

Menashi declined to be specific about the topics he worked on and said he had an ethical obligation of confidentiality. That response drew a fierce rebuke from Feinstein.

“You can’t tell us anything about what you did, so we cannot learn anything about what your positions are on key issues that would affect a vote on this committee, such as whether you separate families at the border or you limit the number of refugees permitted to enter the country or any other sensitive subject,” Feinstein said.

Democratic Sen. Dick Durbin of Illinois was more direct and said Menashi reduced the hearing to a “worthless exercise.”

Some Republicans were similarly impatient. At one point Graham urged Menashi to answer in greater detail, while GOP Sen. John Kennedy of Louisiana accused Menashi of filibustering.

“You’re really a smart guy but I wish you would be more forthcoming,” Kennedy said. “This isn’t supposed to be a game.”

Democrats noted other Trump nominees like Judge Greg Katsas have described legal work they performed for the government in general terms. Menashi countered that those disclosures followed an extended accommodations process, during which lawmakers struck terms with the administration for access to information. No such negotiation took place here, Menashi said.

University of Richmond School of Law professor Carl Tobias faulted the panel for holding the hearing on an accelerated basis.

“The problem with Menashi is that his name was only sent to the Senate on Monday and public notice of his appearance posted then for a Wednesday hearing, so there was little time to assess his record and prepare for the hearing, much less negotiate over what he could speak about,” Tobias told the Daily Caller News Foundation.

“The Senate Judiciary Committee needs to have a better process for hearings for nominees who, if confirmed, will hold life tenure on the federal courts,” he added.

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