Bench Memos

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.

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