Law & the Courts

Another Trump Judicial Nominee, Another Smear

This is starting to get old.

Last week, the White House announced the nomination of Steve Menashi to the Second Circuit.  And without missing a beat, the left began its familiar smear attack.  On Thursday night, Rachel Maddow grossly misrepresented a law journal article that Menashi wrote in order to paint him as a bigot.  As I wrote in this space last week, Maddow deliberately ignored the context of Menashi’s article—which was a defense of Israel’s legitimacy as a Jewish homeland—in launching her unfounded attack.

And now the smears continue, the latest one coming from CNN. More unfair distortions of the record of an extremely qualified individual with a shining academic record and legal resume.

To remind everyone, Menashi is an honors graduate of Dartmouth College and Stanford Law School. He clerked for D.C. Circuit Judge Douglas Ginsburg and then for Supreme Court Justice Samuel Alito.  In private practice at Kirkland & Ellis LLP in New York, Menashi was an appellate litigator.

Menashi is also an accomplished academic.  After fellowships at Georgetown and NYU, he was hired as an assistant professor at Scalia Law School at George Mason University. Menashi’s scholarship has been published in leading law journals, including the Fordham Law Review, theNotre Dame Law Review, and the University of Pennsylvania Journal of Constitutional Law.  In 2017, Menashi took a leave of absence from Scalia Law School to serve as Deputy General Counsel and Acting General Counsel of the Department of Education.  Currently, Menashi works in the White House Counsel’s Office.

Menashi follows in the footsteps of the smeared but distinguished Trump nominees coming before him—Amy Coney Barrett, Brian Buescher, Neomi Rao, Ken Lee, and of course, Justice Brett Kavanaugh—to name a few.

The left will look for material wherever they can find it to twist and misrepresent: law review articles, college newspaper columns—even high school yearbooks.  In the case of Menashi, it has principally turned to his writings as a columnist and editor of the Dartmouth Review while he was a college student, and a few pieces he authored after graduating.

A survey of Menashi’s writings from the time he was at Dartmouth reveals him to be a thoughtful, measured intellectual.  In his pieces, Menashi went to great lengths to fairly frame issues and include quotes from individuals holding opinions different than what the pieces sought to argue. Where Menashi did express opinions in his writings, he discussed controversial issues with civility.  He thoughtfully included poll data and observations from the culture at large to bolster arguments that he made.  Judicial temperament?  Check.

But rather than highlight Menashi’s thoughtfulness or temperament as a young writer, CNN runs the same play that we’ve seen time and time again with respect to Trump judicial nominees: dig for quotes about hot button issues and pull them out of context (bonus points if they are from college!), so that the nominee appears to be an extremist ideologue.

For that reason, it’s worth specifically nothing the inaccuracies and distortions in CNN’s piece:

Take Back the Night Marches/Male Stereotyping

Citing Christina Hoff Sommers’s arguments in her book, The War Against Boys, Menashi’s editorial refutes the notion that men are complicit in the oppression of females by virtue of their sex alone. The editorial notes that Dartmouth had just been named as one of the “10 most anti-male schools in America” and states that this is “unsurprising” given proposals from the Dartmouth administration to make fraternities co-ed and the fact that the Dartmouth Women’s Center seems to consider “most” students to be “heteropatriarchal gynophobes.” The editorial resists what it believed to be a central idea of women’s marches at the time, which was that “every man’s a potential rapist.”

LGBTQ Issues

Menashi’s Dartmouth Review column, “Matters of Life and Death,” written in reaction to the deaths of Matthew Shepard and Jesse Dirkhising, repeats an argument that had been made by Andrew Sullivan (an openly gay journalist) in the New Republic about the two murders (“Us and Them,” New Republic, April 2, 2001).  Like Menashi, Sullivan criticized the Human Rights Campaign both for its response to the two cases and for seeming to confirm stereotypes. Sullivan wrote:

The leading gay rights organization, the Human Rights Campaign—which has raised oodles of cash exploiting the horror of Shepard’s murder—has said nothing whatsoever about the Dirkhising case. For the HRC, the murder of Jesse Dirkhising is off-message. Worse, there’s a touch of embarrassment among some gays about the case, as if the actions of this depraved couple had some connection to the rest of gay America. Don’t these squeamish people realize that, by helping to hush this up, they seem to confirm homophobic suspicions that this murder actually is typical of gays?

In the piece, Menashi does not suggest any correlation between homosexuality and violent behavior but instead explicitly wrote, “the murder only reflects on the two contemptible individuals who slaughtered a 13-year-old boy” and that “[t]he notion that this murder somehow establishes a widespread correlation between homosexuality and homicidal tendencies is, to say the least, unfounded.”  It is, in fact, the main point of Menashi’s editorial that the crime does not reflect on gays or any other group.

CNN also references an article Menashi wrote in American Enterprise in 2000 entitled “Double Dorm Standards.” The article does not pass judgment either way on the military’s then operative “Don’t Ask Don’t Tell” policy. Instead, it discusses the hypocrisy of college administrators who on the one hand oppose the policy and “insist troops in mortal combat should be able to handle the tension of living in mixed quarters,” but who simultaneously establish separate campus housing for LBGT students. Does CNN disagree with the Tufts University president quoted in the article that such separation on campus “flies in the face of the fact that many of us have been engaged in trying to change military policy on gays. If students can’t live in this situation, what will they do in the military, living with someone who is not gay?”

Multiculturalism and Race

At a tender age, Menashi recognized that political correctness and identity politics were divisive and destructive forces that imperil both liberal democracy and academic freedom. In fact, Menashi supported students learning about foreign cultures and non-Western languages.  But students hadn’t been, which suggested the academic emphasis on multiculturalism was not really about learning about other cultures but about promoting a certain political view. In his 2002 essay for Doublethink, Menashi wrote:

Academic multiculturalism, for one, has been exposed as thoroughly bankrupt. The country would be aided in its current effort, certainly, if its students were familiar with other cultures, conversant in Arab history, and knowledgeable about Islamic law. But in fact they know very little of substance about other cultures…

The promotion of particular political views was the heart of Menashi’s concern with college pre-orientation programs for minority students, which had become popular at the time. Menashi’s column on the subject argues that such programs discourage alternative points of view.  Menashi wrote, “It seems . . . that intellectual freedom is no longer in vogue at American universities.”

 Menashi—himself a descendent of relatives who faced persecution for their ethnicity and faith (his maternalgrandmother survived a violent pogrom in Baghdad)—showed sensitivity for minorities while still fighting against the Ivy League PC-ethos. Writing about several controversial Dartmouth fraternity parties, Menashi urged that Greek organizations should not be required to reflexively apologize for alleged offenses just because some students claimed them to be culturally insensitive or racist.  Menashi suggested that, without a complete evaluation of the claims and controversy, it had the effect of degrading more serious claims of racism and bigotry: “When students cannot evaluate claims of racism and sensitivity, and instinctively apologize whenever minority groups object, liberal education—not to mention rational discourse—suffers.”

In defending the parties, Menashi vigorously advocated for freedom of speech and freedom of thought at Dartmouth.  The environment at Dartmouth at the time was one that devalued the importance of freedom of thought and expression; campus speech codes were in vogue. Menashi believed it was imperative to stand up for the First Amendment, which was under broad attack at the time.  Menashi rightly recognized that protecting all speech included protecting speech that is viewed by many to be offensive or unsavory.

In a staff editorial for the Dartmouth Review that he authored in 2001, entitled, “Tolerance at Dartmouth,” Menashi wrote: “[P]art of living in a diverse community is coming into contact with people whose opinions and rhetoric are different, unsettling, and yes, even offensive. To restrict what can be thought and said, however, is to destroy the free expression of ideas on which liberal education rests.”  And while it might not be obvious to today’s modern reader that a luau or “ghetto party” implicates free speech concerns, a contemporaneous New York Times article about fraternity life at Dartmouth explained that fraternities had changed over decades from establishment institutions to enclaves of “resistance to political correctness.”

The CNN piece distorts another Menashi article by suggesting he was defending the “ghetto party” by writing, “no one carried toy guns and only person had sported an afro.” On the contrary, Menashi was correcting misstatements made by Bill Maher on his program, Politically Incorrect.  Maher had reported that the attendees of the “ghetto party” had “played rap music,” “worn afros,” and “carried toy guns.” Menashi explains that there were no guns and only one afro—not multiple. (The AP story that CNN cites also incorrectly reports that there were toy guns at the party.)

Human Rights

CNN cites a 2002 Washington Times book review in which Menashi defended the following quotation from Italian Prime Minister Silvio Berlusconi: “We must be aware of the superiority of our civilization, a system that has guaranteed well-being, respect for human rights, and in contrast with Islamic countries respect for religious and political rights.” Throughout the reviewed book, The Survival of Culture: Permanent Values in a Virtual Age, the authors addressed the issue of cultural relativism, “the most conspicuous example” of which was “the brouhaha surrounding” Berlusconi’s remark, which was made soon after 9/11 and denounced by European politicos even though Menashi asserted he had “stated the obvious.”

CNN suffers from the same malady if it is suggesting “respect for religious and political rights” and other human rights is not superior to a system in which they are absent. Even Berlusconi’s retraction of the comment, which CNN mentions as if to try to reinforce its weak position, spoke more to context—of course, the fight against terror depended on the help of “moderate Arab countries”—but as CNN then reported, he reiterated, “Those who see an enemy in freedom of religion and cultural diversity are themselves our enemies.”

Menashi’s concern, of course, is that such rights are protected, which they certainly are not in many parts of the world. The same book review referenced the British commentator David Pryce-Jones “tak[ing] on the European Union for abandoning the democratic ideals that are Europe’s heritage.” Another 2002 book review by Menashi criticized an author who would have had “American power . . . divorce itself from a special concern for human rights.” Human rights remained a concern when Menashi penned his 2010 law review article—the one Rachel Maddow grossly misrepresented—about how the establishment of Israel, a nation-state, reflected the best way to advance “the aspirations of liberal democracy” after other means of advancing liberal democracy had failed in the face of “the worst human-rights crisis in history.”

***

Steve Menashi is a good and decent man who doesn’t deserve CNN’s attempted character assassination—as any fair reader will readily see.  The “big lie” is the only weapon his opponents have left since truth is their enemy.  I look forward to his confirmation.

Law & the Courts

Liberal Legal Academics Versus Rachel Maddow on Steven Menashi

I can’t imagine that any fair-minded person needs any further demonstration that Rachel Maddow’s attack on Second Circuit nominee Steven Menashi’s law-review article titled “Ethnonationalism and Liberal Democracy” is a baseless smear. But for the sake of comprehensiveness I will point out that some eight or so law-review articles have cited Menashi’s piece and all have done so either neutrally or with approval. The authors of these articles include law professors from NYU and the University of Virginia, and I don’t recognize any of the authors as conservatives.

An example: In his 2018 article “A Jewish State and a State for All of Its Citizens: Addressing the Challenge of Israel’s Arab Citizens,” NYU law professor Samuel Estreicher cites Menashi’s article in support of the proposition—ethnonationalism alert!—that “Many European countries have repatriation policies favoring their fellow nationals in diaspora.” Further, in his acknowledgments footnote, Estreicher specifically states that he is “indebted to the helpful comment and work of Mark Salomon and Steven Menashi.”

Estreicher is a distinguished liberal scholar of labor and employment law. I’ll further note that he was born in a displaced-persons camp at Bergen-Belsen, Germany. If there were anything to Maddow’s absurd assertion that Menashi’s law-review article makes “a high-brow argument for racial purity,” it’s farfetched that he would be citing the article, much less stating his indebtedness to Menashi.

I am, of course, not contending that Estreicher or any of the other legal academics who have cited Menashi’s article agree with his thesis or any of his particular arguments. I am simply pointing out that, contra Maddow, they properly treat Menashi’s article as responsible scholarship.

Law & the Courts

This Day in Liberal Judicial Activism—August 22

Supreme Court Justice Ruth Bader Ginsburg in 2017 (Jonathan Ernst/Reuters)

2014—Justice Ruth Bader Ginsburg is becoming quite a Chatty Cathy. In a wide-ranging interview, Ginsburg somehow sees fit to offer her views on all sorts of matters. She reveals, for example, that she assigned the dissent in Schuette v. Coalition to Defend Affirmation Action to Justice Sotomoyor in order to accommodate Sotomayor’s desire to “quell” the “doubts” that some folks on the Left were having about Sotomayor’s “views on affirmative action.” And at the very time that pending certiorari briefs in cases challenging state marriage laws are debating what the Court’s ruling in United States v. Windsor signifies for those cases, Ginsburg volunteers her view that the “main theme” in Justice Kennedy’s previous rulings involving gay rights is “equal dignity,” not federalism.

Law & the Courts

Rachel Maddow and Pig Fat

In addition to her racial smear of Second Circuit nominee Steven Menashi (which I addressed here and here), MSNBC’s Rachel Maddow also attacked Menashi for recounting a mistaken story about General John Pershing’s supposed use of “bullets dipped in pig fat” to execute Muslim terrorists in the Philippines early in the last century. During the course of his presidential campaign, Donald Trump used this story to argue (in Maddow’s words) that “that’s how we got rid of Muslim terrorists in the past and now we’re too wussy to do that.”

Maddow complains that Menashi “told that same fake story in the course of his academic career,” and she contends that he “made that same argument that Trump made on the stump.” Her complaint is very misleading, and her contention is wrong:

1. The story from Menashi that Maddow objects to opens a book review that he published in April 2002. Just months earlier, as this Los Angeles Times article reports, Democratic senator Bob Graham, chairman of the Senate Intelligence Committee, told the same story:

Senate Intelligence Committee Chairman Bob Graham (D-Fla.) cited as an example a dinner he attended last week with people who work on intelligence issues and have connections to the intelligence community. The dinner conversation ranged in part on how U.S. military commander “Black Jack” Pershing used Islam’s prohibition on pork to help crush an insurgency on the southern Philippine island of Mindanao after the Spanish-American War at the turn of the last century.

In one instance, Graham explained in an interview, U.S. soldiers captured 12 Muslims. They killed six of them with “bullets dipped into the fat of pigs.”

After that, Graham said, the U.S. soldiers wrapped the Muslim rebels in funeral shrouds made of pigskin and “buried them face down so they could not see Mecca. Then they poured the entrails of the pigs over them. The other six were forced to watch. And that was the end of the insurrection on Mindanao,” Graham noted.

Evidently this false story was circulating widely in intelligence circles at the time.

Menashi wrote this review shortly after he finished college and before he began law school—not during his time as a law professor and thus not at a time when most people would understand him to be “in the course of his academic career.”

2. Nowhere in his book review does Menashi argue in favor of such anti-terrorism tactics. On the contrary, he faults the author whose book he is reviewing for promoting a view of American power that “would divorce itself from a special concern for human rights” and for amorally “sanction[ing] brutal tactics for maintaining order.” Menashi argues that “we need good values” (his emphasis) and that while we should not ignore the reality of power politics, “we also should not be so brazen as to lose sight of our moral aims.”

In short, unless you’re going to hold a junior researcher to a higher standard than the Democratic chairman of the Senate Intelligence Committee, it’s difficult to see how Menashi’s innocent error can fairly be counted against his nomination.

Law & the Courts

This Day in Liberal Judicial Activism—August 20

1985—Extending an error it made two years earlier, the Sixth Circuit (in Policy v. Powell Pressed Steel Co.) distorts ordinary contract principles as it construes a collective bargaining agreement to confer lifetime health-insurance benefits on retirees. Never mind that the agreement contained a provision providing for the continuation of pension benefits, but not of health-insurance benefits, after the expiration of the agreement.

Thirty years later, the Supreme Court will finally put an end to the Sixth Circuit’s presumption (unique among the federal courts of appeals) that collective bargaining agreements confer on retirees a vested right to lifetime benefits. In M&G Polymers v. Tackett, the Court will rule unanimously that such a presumption is incompatible with ordinary principles of contract law.

Law & the Courts

SCOTUS Must Reaffirm the Meaning of ‘Sex’ in Antidiscrimination Law

The U.S. Supreme Court in Washington, D.C., June 11, 2018 (Erin Schaff/Reuters)

On Aug. 16, R. G. and G. R. Harris Funeral Homes filed its brief with the U.S. Supreme Court, urging the court not to interpret the word “sex” in federal nondiscrimination law to include “gender identity” because doing so will cause problems in employment law, reduce bodily privacy protections for everyone, and erode equal opportunities for women and girls.

Yet that is exactly what the American Civil Liberties Union is pushing the U.S. Supreme Court to do. My employer, the Alliance Defending Freedom, is representing the funeral home.

In 2007, the funeral home hired a male employee, Anthony Stephens, to work as a funeral director, the “face” of the business. Stephens agreed to and abided by the funeral home’s professional codes of conduct and dress, including a sex-specific dress code. Nearly six years later, Stephens informed the funeral home’s owner, Tom Rost, that Stephens planned to begin dressing and presenting as a woman while working with grieving families. But the funeral home’s dress code is industry standard, complies with federal law, and is integral to the 100-year-old business’s goal of helping grieving families heal. Tom could not agree to Stephens’s plan.

Stephens filed a complaint alleging employment discrimination, and now the U.S. Supreme Court will hear the case on October 8.

The high court will decide two questions: (1) whether the term “sex” in federal employment nondiscrimination law, Title VII, includes “gender identity,” and (2) whether it is unlawful sex stereotyping to administer a dress code based on biological sex rather than gender identity.

The meaning of “sex” depends on the term’s public meaning in 1964, the year Congress enacted Title VII. Interpreting laws this way ensures that it remains constant and reliable over time. Business owners across the country rely on Title VII when making business policies.

There is little dispute that, in 1964, the term “sex” was publicly understood, as it is now, to mean biological sex: male and female. After all, the term “gender identity” wasn’t even part of the American lexicon at the time. Its first use was at a European medical conference in 1963. And no semblance of it appeared in federal law until 1990. So Title VII’s prohibition on sex discrimination has always been a ban on disfavoring one biological sex versus the other because of sex.

As to sex stereotyping, Title VII has also barred employers from using sex stereotypes (such as the idea that men should be aggressive, but women should not) to favor male employees over female employees. Stephens, through his ACLU attorneys, is asking the Supreme Court to turn this concept on its head and force employers to allow men to dress as women as long as they fit the female stereotype.

Stephens testified earlier in the case that Harris should have let him dress as a woman, but an employer need not allow a balding man with a beard and mustache to wear a dress while working with grieving families. Why not? Because such a male employee “doesn’t meet the expectations of a female” or “adhere to the part” he’s playing.

So, according to the ACLU, all sex-specific policies must depend, not on sex, but on whether a certain employee looks or acts enough like a man or woman. Not only is that standard unworkable for any employer, it enshrines the very stereotyping Title VII rejects.

Such a policy also threatens to unleash legal chaos and adverse consequences for everyone.

If “sex” is governed by “gender identity,” organizations will no longer be able to maintain sex-specific sleeping facilities, showers, restrooms, and locker rooms. Men can take jobs reserved for women, such as a position playing in the Women’s National Basketball Association, or a job as a female nurse hired to care for an elderly woman’s private needs. Scarce jobs requiring fitness tests, such as police and fire positions, can exclude women as they are forced to compete against men who identify as female.

As this moves to analogous nondiscrimination laws in education and housing, equal opportunities and bodily privacy protections for women and girls will be lost.

We are already seeing this across the country where similar state housing and education laws have been changed or interpreted to include “gender identity.” For example, in Connecticut, two boys competing as girls have set state meet records in 15 track events over the past two years, costing girls over 40 chances at next-level races. And in Anchorage, Alaska, a federal court had to enjoin the city from using a gender-identity nondiscrimination law to insist that a women’s shelter allow a man who identifies as a woman to sleep in a common room mere feet away from women, many of whom have been trafficked, abused, or sexually assaulted.

These examples highlight why courts are ill-equipped to make such a significant change in the law. And that is why Harris Funeral Homes is urging the Supreme Court to reaffirm the long-standing meaning of sex discrimination in Title VII and the protections for women that it has always ensured.

Law & the Courts

Re: Rachel Maddow’s Racial Smear of Second Circuit Nominee Steven Menashi

A couple of follow-on points to my original post:

1. Second Circuit nominee Steven Menashi’s critics object to passages in which he states things such as: “These findings confirm that the solidarity underlying democratic polities rests in large part on ethnic identification.”

It’s essential to have in mind that Menashi’s concept of “ethnic identification” is very expansive. On numerous occasions, for example, he uses the term ethnocultural as a synonym for ethnic. As I showed in my first post, far from being some narrow concept (much less reducible to race), ethnic and ethnocultural in Menashi’s usage encompass multiple possible elements, including historical, cultural, linguistic, religious, ideological, geographical, and territorial. Indeed, in explaining how “ethnocultural ties” give rise to the “sentiment of nationality,” Menashi quotes this passage from John Stuart Mill:

This feeling of nationality may have been generated by various causes. Sometimes it is the effect of identity of race and descent. Community of language, and community of religion, greatly contribute to it. Geographical limits are one of its causes. But the strongest of all is identity of political antecedents; the possession of a national history, and consequent community of recollections; collective pride and humiliation, pleasure and regret, connected with the same incidents in the past.

On this broad understanding of ethnic and ethnocultural, does anyone really dispute that the “sentiment [of nationality], which facilitates democratic government, rests upon ethnocultural ties”? Does anyone imagine that, say, the people of Europe (or of the world, if you prefer) could be randomly redistributed among the nations with no negative effects on how democracies operate?

2. The assumption by many that Menashi welcomes his conclusion that “the solidarity underlying democratic polities rests in large part on ethnic identification” is beyond bizarre. That is a conclusion that Menashi, the descendant of Jewish refugees, draws heavily from the horrific failure of European states to protect the rights of their Jewish citizens and of Jewish refugees. As Menashi puts it, “the failure of liberal universalism to address the worst human-rights crisis in history revealed that a liberal scheme of human rights requires a system of particularistic nation-states.”

In other words, Menashi has millions of reasons to wish that “liberal universalism” had proven itself a solid foundation for a democratic polity.

It is appalling that those who oppose the existence of Israel as a refuge for Jews are prominent among those viciously and baselessly attacking Menashi as a racist.

Law & the Courts

This Day in Liberal Judicial Activism—August 19

The Washington Post Company building in Washington, D.C. (Jonathan Ernst/Reuters)

2005—A front-page Washington Post article reporting on the release of Reagan-administration documents relating to Supreme Court nominee John Roberts carries the inflammatory headline, “Roberts Resisted Women’s Rights.” In fact, the documents show merely that Roberts had combated highly controversial leftist proposals involving gender quotas and comparable worth.

Law & the Courts

This Day in Liberal Judicial Activism—August 18

(Photo: Shutterstock)

2010—In American Atheists, Inc., v. Duncan, a Tenth Circuit panel holds that the state of Utah violated the Establishment Clause by allowing the private Utah Highway Patrol Association to memorialize troopers killed in the line of duty by erecting large white crosses on public property near the locations of their deaths.

In dissent from his court’s denial of en banc review, Judge Neil Gorsuch will decry that the Tenth Circuit applies its dubious “reasonable observer” test by using an observer who “continues to be biased, replete with foibles, and prone to mistake.”

In a lengthy dissent from the Supreme Court’s failure to grant certioriari, Justice Thomas will lament that the Court “rejects an opportunity to provide clarity to an Establishment Clause jurisprudence in shambles.”

Law & the Courts

Does Rachel Maddow Put Israel and White Supremacy in the Same Category?

MSNBC debate moderators Chuck Todd and Rachel Maddow during the first Democratic presidential debate in Miami, Fla., June 26, 2019. (Mike Segar/Reuters)

Last night, Rachel Maddow launched a lengthy smear of Second Circuit nominee Steven Menashi based on a grossly distorted summary of a law-review article he wrote in 2010, in which he stated that “ethnonationalism remains a common and accepted feature of liberal democracy that is consistent with current state practice and international law.” She accused Menashi of nothing less than making “a highbrow argument for racial purity in the nation-state.”

Ed Whelan effectively debunks the notion that the article did any such thing. I will make a few additional points.

Maddow completely ignores the context of Menashi’s article, which was a defense of Israel’s legitimacy as a Jewish homeland. In fact, her extended discussion of the article does not once mention Israel or the persecution of Jews that played a central role in the establishment of Israel. To add insult to injury, she even began her segment by defining the “ethnonationalism” Menashi wrote about with reference to “white nationalism, which is the new branding that domestic terrorists are using in this country for white supremacy.”

Not only is this a gross distortion of an article that mentioned Israel well over 100 times and barely mentioned the United States. It rises to the level of a calumny — and a particularly despicable one.

It might not be surprising that the Republican Jewish Coalition is among the numerous critics who have called out Maddow for her defamation. But the reasons for doing so transcend politics. Menashi is himself of Middle Eastern ancestry, with Jewish grandparents who made their way from Iraq to Iran before finding their home in Israel. His grandmother survived a violent pogrom in Baghdad, and his in-laws are Soviet Jewish refugees who emigrated to the United States. Of course, you would have heard none of this background from Maddow, who baselessly claimed that Menashi’s definition of “national community” is “everybody having the same ethnicity.”

A question remains for Maddow: Is her commentary the product of intellectual dishonesty alone, or does she sincerely believe Israel deserves to be associated with the white supremacy of domestic terrorists?

Law & the Courts

Rachel Maddow’s Racial Smear of Second Circuit Nominee Steven Menashi

Rachel Maddow during the first debate of the 2020 Democratic presidential candidates in Miami, Fla., June 26, 2019 (Mike Segar/Reuters)

In a 2010 law-review article titled “Ethnonationalism and Liberal Democracy,” Second Circuit nominee Steven Menashi argues that “ethnonationalism remains a common and accepted feature of liberal democracy that is consistent with current state practice and international law.”

Menashi’s specific purpose in the article is to refute claims that “Israel’s particularistic identity—its desire to serve as a homeland for the Jewish people—contradicts principles of universalism and equality upon which liberal democracy supposedly rests.” In fact, argues Menashi, “[p]articularistic nationalism and liberal democracy … emerged together at the same historical moment and persisted in symbiosis.” Further, the “idea that a sovereign democratic government represents a particular ethnonational community has its root in the principle of ‘self-determination of peoples’ espoused at the foundation of the League of Nations and the United Nations.” Surveying the laws of European nations, he further explains that Israel’s Law of Return, which guarantees citizenship to Jews worldwide, is similar to kin-repatriation policies that are widespread throughout Europe. In sum, “[f]ar from being unique, the experience of Israel exemplifies the character of liberal democracy by highlighting its dependence on particularistic nation-states.”

In a lengthy segment on MSNBC last night, Rachel Maddow grossly distorts Menashi’s argument and tries to twist it into “a high-brow argument for racial purity.” (Video at 9:00-9:36.) She falsely claims that Menashi argues “how definitely democracy can’t work unless the country is defined by a unifying race.” (Video at 6:57-7:10.)

But Menashi’s argument about national identity is clearly not about “racial purity” or a “unifying race.” Indeed, the fact that Israelis from Ethiopia are black makes it impossible to take seriously the claim that Menashi is making a case for “racial purity.” Menashi further states that it “is not even clear … that Israel’s national identity can even be described as ‘ethnic’” (in a narrow sense of that concept), as Israeli Jews come from “Argentina, Ethiopia, Germany, Morocco, Russia, and Yemen.”

What actually fosters “ethnonationalism”—what makes a population regard itself as a nation, what gives rise to national self-consciousness—is a complicated matter that is far beyond Menashi’s inquiry. He quotes at length from an International Commission of Jurists that explored whether the people of what is now Bangladesh constituted a distinct “people.” That commission’s discussion, which Menashi clearly finds intelligent, cites multiple elements—historical, racial or ethnic, cultural or linguistic, religious or ideological, geographical or territorial, economic—that might bear on whether a “particular group constitutes a people,” but it also states that none of those elements is “either essential or sufficiently conclusive.”

What matters for national identity, Menashi emphasizes—quoting John Stuart Mill—is that a people are “united among themselves by common sympathies which do not exist between them and any others, which make them cooperate with each other more willingly than with other people, [and] desire to be under the same government.” That—and not race—is clearly what Menashi means by his broader concept of ethnic, or “ethnocultural” or ethnonational, identification.

Israeli Jews and Palestinians clearly do not share an ethnonational identity. The United States is beyond the scope of, and barely mentioned in, Menashi’s article, but it’s plain from his analysis that all people, irrespective of race or of narrower concepts of ethnicity, who see themselves as part of the American national community do share an ethnonational identity.

Law & the Courts

This Day in Liberal Judicial Activism—August 16

Judge Stephen Reinhardt

1996—One reason that the Ninth Circuit is so dysfunctional is that it fails to make responsible use of its en banc procedures to override panel rulings that conflict with Supreme Court precedent. In his opinion in Wicklund v. Salvagni, Judge Stephen Reinhardt rules that the judicial-bypass provision of a Montana statute requiring parental notice for minors’ abortions is unconstitutional under the Ninth Circuit’s 1991 ruling in Glick v. McKay. Reinhardt rejects the argument that the Glick ruling was contrary to Supreme Court precedent and does not raise the possibility of en banc review.

In a per curiam ruling (in Lambert v. Wicklund), the Supreme Court, seeing no need for briefing or oral argument, unanimously reverses the Ninth Circuit holding on the ground that it is “in direct conflict with our precedents.”

1999—By a vote of 4 to 3, the Ohio supreme court rules (in State ex rel. Ohio Academy of Trial Lawyers v. Sheward) that tort-reform legislation violates separation-of-powers principles and the ever-malleable single-subject rule.

Law & the Courts

This Day in Liberal Judicial Activism—August 15

Justice Stephen Breyer (Chip Somodevilla/Getty)

1938—Stephen Gerald Breyer is born in San Francisco. An expert on regulation and a professor at Harvard Law School, Breyer serves from 1979 to 1980 as chief counsel to Teddy Kennedy on the Senate Judiciary Committee. His reward: On November 13, 1980—after Ronald Reagan has defeated Jimmy Carter in his bid for re-election and after Republicans have won control of the new Senate—Carter nominates Breyer to a newly created seat on the First Circuit. His nomination is promptly confirmed. In 1994 President Clinton appoints Breyer to replace retiring justice Harry A. Blackmun on the Supreme Court. (See This Day for July 29, 1994.) His jurisprudence has been aptly described by one perceptive critic as “judicial willfulness masquerading as judicial deference.”

2000—The New Jersey supreme court rules by a vote of 4-2 (in Planned Parenthood v. Farmer) that a state statute providing for parental notification for abortion violates the state constitution because it treats minors seeking abortion differently from minors who decide to carry their child to term.

Law & the Courts

Eleventh Circuit Judge Tjoflat to Take Senior Status

I’m reliably informed that Eleventh Circuit judge Gerald Tjoflat, who has served on the federal bench since 1970, has declared his decision to take senior status, effective on the confirmation of his successor. Tjoflat’s decision gives President Trump a seat to fill in Florida. That will be the president’s fourth appointment to the Eleventh Circuit.

Tjoflat, who turns 90 in December, is the longest-serving federal judge in active status. President Nixon appointed him to the district court in 1970, and President Ford elevated him to the appellate court in 1975. (Ford appointed Tjoflat to the Fifth Circuit, but upon the Fifth Circuit’s division into two circuits in 1981, Tjoflat began his service on the Eleventh Circuit.)

Law & the Courts

ABA Double Standard?

As I have made clear before, I think that it’s entirely reasonable for the American Bar Association’s judicial-evaluations committee to want nominees for federal district judgeships to have substantial trial experience. But it’s also important for the ABA committee to be consistent in its treatment of nominees of different presidents. And on that measure the ABA committee’s recent “Not Qualified” rating of federal district nominee Justin R. Walker seems difficult to defend.

As the ABA committee explains in its letter to the Senate Judiciary Committee, its negative rating of Walker rests entirely on its conclusion that Walker “does not presently have the requisite trial or litigation experience or its equivalent.” Specifically, the committee objects that Walker “has never tried a case as lead or co-counsel, whether civil or criminal.” At the same time, the committee states that it “does not have any questions about Mr. Walker’s temperament or integrity” and, in light of his other impressive credentials, affirms its belief that he “has great potential to serve as a federal judge.”

Eight years ago, when President Obama nominated Alison J. Nathan to a federal district judgeship in the Southern District of New York, the ABA committee gave Nathan an overall rating of “Qualified.” (A minority of the committee rated her “Not Qualified.”) But as I pointed out at the time, it had to disregard its stated criteria in order to give Nathan a favorable rating. Nathan did not have the “substantial courtroom and trial experience” that the ABA committee says is so “important” for district-court nominees. Of the ten “most significant litigated matters” that she identified in her Senate questionnaire response, there was no sign that any of them involved her actually appearing in a trial court to examine witnesses or even to argue a motion, much less “tr[ying] a case as lead or co-counsel”.

To be sure, the ABA committee says that “a nominee’s limited experience may be offset by the breadth and depth of the nominee’s experience over the course of his or her career.” But it’s difficult to see any meaningful difference on this score that would cut in favor of Nathan:

Nathan had been a member of a state bar for eight years before her nomination. Walker has been a member of the Kentucky bar for some ten years, since 2009.

Nathan was a law clerk for Ninth Circuit judge Betty Fletcher and for Justice Stevens. Walker was a law clerk for then-D.C. Circuit judge Brett Kavanaugh and for Justice Kennedy.

Nathan had her undergraduate and law-school degrees from Cornell. Walker has his from Duke and Harvard law school.

Nathan worked as an associate at a law firm for four years, taught at law schools for three years, worked in the White House counsel’s office for 18 months or so, and was special counsel to the New York solicitor general for nine months. Walker worked as an associate at a law firm for two years, had a solo practice for six years, has taught at a law school (where he is now tenured) for four years, and is now also of counsel to a law firm.

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