Bench Memos

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 maternal grandmother 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.

Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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