By Ronn Blitzer
Published September 11, 2019
President Trump's pick for a seat on the 2nd Circuit Court of Appeals adamantly denied that he harbors racist beliefs or favors "racial purity" during his confirmation hearing Wednesday morning, as he responded to inflammatory accusations against him.
During questioning, Sen. Josh Hawley, R-Mo., observed that nominee Steven Menashi has faced “unusually personal” and “vicious” attacks of this nature, alluding to a segment on Rachel Maddow’s MSNBC show in which she discussed a law journal article Menashi wrote in 2010, titled "Ethnonationalism and Liberal Democracy." Maddow cited Menashi’s use of the term “ethnonationalism” to suggest he is aligned with white nationalists, alleging he's on the “fringe of racial thinking.”
“I absolutely am not,” Menashi said. “It’s hurtful and I think it misrepresents what I’ve written.”
The article, published in the University of Pennsylvania Journal of International Law, was about how Israel can be both a Jewish state and a liberal democracy. In that context, he explained how there is a precedent for democratic countries to have a common ethnicity, with shared qualities and ties to that people’s diaspora.
When asked about the article during the hearing, Menashi said he was merely saying Israel is not out of the norm. He said he was not proposing the U.S. should have an ethnically homogeneous society, but noted that U.S. citizens do have a shared identity based on “constitutional traditions."
Menashi said not only is he not a proponent of “racial purity,” he is particularly sensitive to ethnic or religious discrimination because his family members were victims of such persecution. He is the descendant of Iraqi Jews, and his paternal grandparents fled Iraq after Kurdish neighbors helped smuggle his grandmother out of her city.
From there, the family went to Iran, and his father was born in Tehran. They eventually fled that country “because they could not trust the courts to be impartial,” as they would not accept testimony from Jews.
Menashi said that on his mother’s side, his grandfather escaped Ukraine and fled to Poland, eventually making his way to the Bronx. Relatives who remained in Europe were murdered in the Holocaust.
Another point of contention during the hearing was whether Menashi could speak about legal advice he has given in his role with the White House counsel’s office. He was asked many questions about whether he advised on particular issues, such as reducing the number of refugees allowed to enter the U.S. and policies having to do with separating families at the border. Over and over, Menashi refused to answer, claiming this was protected by client confidentiality.
Senate Judiciary Committee members, including ranking member Dianne Feinstein, D-Calif., and Dick Durbin, D-Ill., took issue with Menashi’s refusal to answer basic questions. Feinstein pointed out that when a previous administration attorney faced a judicial confirmation hearing, he answered these questions.
Chairman Lindsey Graham, R-S.C., pointed out that in that situation, the committee spoke to the administration, who authorized the nominee to answer questions. Graham said that while the committee could have done the same for Menashi, they did not.
“What you’re doing here is not fair,” Graham said.
At the same time, Graham said that while Menashi should not be expected to divulge specific advice he gave, he should be able to say whether or not he gave advice on those issues. Menashi still was reticent when asked about giving advice on particular immigration-related matters.
Durbin eventually lost his temper during his stymied attempts to question Menashi, saying it was "inappropriate" for him to even seek the nomination if he would not answer questions. Menashi, who clerked for Supreme Court Justice Samuel Alito and was a partner at the law firm Kirkland & Ellis, was deemed "well qualified" by the American Bar Association.
One topic where Menashi was more forthcoming than recent judicial nominees was on Brown v. Board of Education, the case that said laws segregating public schools were unconstitutional. Typically, nominees refrain from giving their thoughts on any specific case, in case those issues come back before the courts. But Menashi said that Brown is an exception because of its significance to American life, and he expressed his support for the decision.