Bench Memos

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.

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