Senate Democrats used a judicial-confirmation hearing Wednesday to demand that one of President Trump’s nominees detail his work in the White House Counsel’s Office, where he gave legal advice on immigration policy.
Steven J. Menashi, nominated to the 2nd U.S. Circuit Court of Appeals, parried the questions on the basis of confidentiality, prompting Democratic frustration on that matter and he also got related pushback from a Republican senator who accused him of not being forthcoming about his judicial philosophy.
Sen. Dianne Feinstein of California, the Senate Judiciary Committee’s top Democrat, asked whether Mr. Menashi worked on the Trump administration’s family separation policy or whether he handled the president’s move to limit the number of refugees entering the country.
“With my duties of confidentiality to my client, I’m acknowledging I’ve worked on immigration matters — but can’t speak further about that,” Mr. Menashi told the committee.
The lack of details about his work didn’t sit well with Ms. Feinstein and her Democratic colleagues, who despite persistent prodding got no real details. They said the information was necessary for evaluating Mr. Menashi’s qualifications for the federal bench.
“I’ve been on this committee for 26 years, seen a lot of nominees, and no one has ever used, ‘I’m not allowed to talk about it,’” Ms Feinstein said.
But Sen. Mike Lee, Utah Republican, jumped to Mr. Menashi’s defense, saying a lawyer has a duty to protect a client’s interest.
“It is not appropriate to beat up Mr. Menashi on the basis of permission he has not been granted to reveal confidential information,” Mr. Lee said.
Sen. John Kennedy, Louisiana Republican, also expressed frustration with Mr. Menashi over his opaque responses to legal hypotheticals about how he would approach certain statutes as a judge.
“I wish you would be more forthcoming. This isn’t supposed to be a game,” he told the nominee.
Mr. Menashi was already a target of the progressive left before Wednesday’s hearing, where protesters loudly voiced opposition to his nomination outside the committee room on Capitol Hill.
The resistance largely arose after MSNBC’s Rachel Maddow aired a 13-minute segment last month, attacking a law review article Mr. Menashi wrote years ago that the TV host suggested was racist.
The 65-page article from 2010 for the University of Pennsylvania Journal of International Law drew fire over Mr. Menashi’s noting that ethnonationalism is an accepted part of liberal democracies in a defense of Israel as “a Jewish state.”
“I abhor discrimination. I value this country’s traditions of tolerance and equality before the law,” Mr. Menashi said, defending himself from the attacks. He said the point of his article was to note that some liberal democracies have an ethnic basis.
Past writings have sunk at least one of the president’s nominees in the past.
Ryan Bounds, who was nominated to the 9th U.S. Circuit Court of Appeals, had his nomination withdrawn over concerns about one of his college writings that some characterized as racially insensitive. But others such as Judge Neomi Rao, who was questioned her writings on date rape for the Yale Free Press, eventually won confirmation.
Carl Tobias, a law professor at the University of Richmond, said he thought the lack of clarification on Mr. Menashi’s White House Counsel Office work pertaining to immigration policy was a bigger hurdle than his writings on ethnonationalism.
“It just has that rushed feeling about it. It’s not like they don’t have time to get that right,” he said.
Mr. Menashi was rated “well qualified” by the American Bar Association, which said he satisfied the organization’s “very high standards with respect to integrity, professional competence, and judicial temperament.”
He also clerked for Supreme Court Justice Samuel A. Alito Jr., as well as on the federal appeals court in Washington, D.C.
If confirmed, Mr. Menashi would be the 44th circuit court judge appointed by Mr. Trump, who has won two Supreme Court appointments, 43 circuit and 105 district court confirmations. In the same period of his presidency, President Obama also had two Supreme Court appointments, but only saw 20 circuit court and 74 district court confirmations.
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