Jurisprudence

After Menashi Vote, Trump Is Poised to Flip a Key Court

Trump’s 2nd Circuit nominees will have power over several lawsuits against the president.

Steven Menashi.
Steven Menashi testifies during his Senate Judiciary Committee confirmation hearing on Sept. 11.
Tom Williams/CQ-Roll Call Inc. via Getty Images

The Senate Judiciary Committee voted along party lines on Thursday to advance White House attorney Steven Menashi’s nomination to the 2nd U.S. Circuit Court of Appeals. Menashi, 40, is one of Donald Trump’s most controversial nominees because of his past inflammatory writings, his work with Stephen Miller and Betsy DeVos, and his refusal to answer the committee’s questions about that work. If the full Senate confirms Menashi, Trump will have flipped the court, creating a majority of conservative judges with the power to decide several pending lawsuits against the president.

Although the American Bar Association considered Menashi “Well Qualified,” its highest rating, senators from both parties have questioned his fitness for the bench over the past several months. The committee delayed a vote on his nomination, raising the possibility of a White House lobbying campaign behind the scenes. In October, Republican Sen. Susan Collins came out against his confirmation because of his “past writings” and evasive behavior before the committee. Republican Sen. John Kennedy also appeared to be leaning against Menashi, chastising him for dodging questions. But he wound up supporting the nominee on Thursday.

About those past writings that bothered Collins: Progressive critics led by Rachel Maddow zeroed in on a 2010 law review article called “Ethnonationalism and Liberal Democracy” that Menashi published in the University of Pennsylvania Journal of International Law. The article argued that an Israeli law favoring Jewish immigrants fits within the framework of a “liberal democracy” because many countries impose “ethnic preferences” in immigration. He added: “Ethnic ties provide the groundwork for social trust and political solidarity,” claiming that “social scientists” have found that diverse societies have “lower social trust” and less “effective governing institutions.”

Maddow summarized Menashi’s thesis as a “highbrow argument for racial purity in the nation state.” As Ian Millhiser has noted in Vox, the article seemed to be less interested in defending “racial purity” and more focused on providing “an academic defense of Israel.” But Menashi’s skepticism toward the coherence of diverse societies rankled progressives and contributed to fears that the nominee shares Trump’s ethnonationalist inclinations.

Menashi’s earlier writings are even more revealing of his worldview. In college, Menashi condemned Take Back the Night marches, complaining that “campus gynocentrists” unfairly accuse “the majority of male students with complicity in rape and sexual violence.” He asked why the Human Rights Campaign “incessantly exploited the slaying of Matthew Shepard” but did not discuss murders committed by gay men. He charged “tony colleges” with hypocrisy for allowing LGBTQ residence communities while “sneer[ing] at the military for worrying about open homosexuals in the ranks.” He compared college applications that listed race to the Nuremberg Laws. He defended a mostly white frat’s “ghetto party,” during which white students sported afros and toy guns. He wrote that Brown University’s Third World Transition Program for minority students was meant “to fully indoctrinate them in leftist multiculturalism.” And he described academic multiculturalism as a “thoroughly bankrupt” effort that is all “about denigrating Western culture in order to promote self-esteem among ‘marginalized’ groups.”

Then there are Menashi’s writings on Islam. After 9/11, Italian Prime Minister Silvio Berlusconi proclaimed: “We must be aware of the superiority of our civilization … in contrast with Islamic countries.” Menashi defended these remarks, writing that Berlusconi did “nothing other than state the obvious.” More troublingly, in 2002, Menashi repeated a well-worn lie in the Hoover Institution’s Policy Review: a false story about American war crimes against Muslim militants during the Spanish-American war. According to Menashi, Gen. John Pershing “captured some of the militants, executed them with bullets dipped in pig fat, and wrapped their bodies in pigskin before burial—a devastating contamination according to Muslim law.”

“The American response to Islamic extremism,” Menashi reflected, “has not always been so harsh—or as effective.” (If you are familiar with this fiction, it may be because President Donald Trump told it repeatedly on the campaign trail in 2016.)

Menashi joined the Trump administration as acting general counsel in Betsy DeVos’ Department of Education. During his tenure, the agency rolled back protections for students who are disabled, LGBTQ, racial minorities, and sexual assault survivors. The New York Times also reported on Wednesday that Menashi devised a plan “to use private Social Security data to deny debt relief to thousands of students cheated by their for-profit colleges.” A federal judge later halted the scheme, ruling that it violated federal privacy laws. In 2018, Menashi moved to the White House to serve as a legal adviser; in that role, he helped Stephen Miller implement Trump’s crackdowns on immigration and asylum.

During Menashi’s confirmation hearing in September, senators were eager to probe his work crafting some of the administration’s most controversial policies. To the frustration of both Republicans and Democrats, however, he refused to answer questions about pretty much anything. Menashi would not say who he worked with in the administration or what he worked on. He claimed, over and over again, that he was “not authorized to say anything,” though he did not explicitly invoke executive privilege. Instead, he simply refused to answer or said he had forgotten. “You’re a really smart guy,” Kennedy told Menashi, “but I wish you’d be more forthcoming. This isn’t supposed to be a game.”

Asked whether he’d vote for the nominee, Kennedy told HuffPost: “I’m real doubtful. My thought is, look, if he’ll treat a United States senator the way he treated us, I wonder how he would treat the people.”

In the nearly two months since, though, Kennedy appears to have changed his mind. He announced on Thursday that he would support his nominee, explaining his change of heart in a brief statement:

I’ve spent a lot of time reading his materials. I think it would be fair to say that some of his views are eclectic and some of them I don’t agree with. But his views are very, very carefully reasoned. And I think we have to be careful in automatically assuming that people’s points of view—as written, for example, in an academic journal—are a window to how they’re gonna rule. And the reason I say that is, I don’t think we want to nominate people that haven’t thought about the world, that haven’t thought about social policy, that haven’t tested their assumptions against the arguments of their critics. I don’t want a blank slate.

The night before, Kennedy spoke at a Trump rally in Louisiana, where he lavished praise upon the president and called Speaker of the House Nancy Pelosi “dumb.”

Menashi’s nomination now goes to the Senate floor. Presuming all Democrats vote against him—a pretty safe bet—he is set to win confirmation unless three more Republicans join Democrats in opposition. If Menashi is confirmed, Trump will have flipped the court, creating a majority of judges appointed by GOP presidents.

Several cases of immense importance to the president are currently pending before the 2nd Circuit. A three-judge panel for the court recently ruled that New York state prosecutors may compel Trump to turn over his tax returns. It will also soon decide whether to uphold a House subpoena of the Trump family’s financial records. Once conservative judges gain an overall majority, they can overturn any panel decisions that go against Trump and shield him from oversight. It is no surprise, then, that the president and his allies in the Senate are eager to put nominees like Menashi on the 2nd Circuit as soon as possible.

Update, Nov. 7, 2019, at 3:31 p.m.: On Thursday afternoon, William J. Nardini was confirmed by the Senate to the 2nd Circuit. This article has been updated to reflect that now Menashi’s confirmation would indeed flip the court.