In a more rational world, Steven Menashi is the type of judicial nominee, unanimously confirmed to the Second Circuit Court of Appeals by now. But in today’s hyperpartisan environment, he is the latest target of the Democratic smear machine, simply because he happens to be a conservative. Menashi’s experience is not isolated and is, in fact, a signal of things to come.
Menashi is uber-qualified for the job, but despite, or perhaps because of, his unquestioned credentials, his nomination came under attack by liberals who have resorted to mining everything he ever wrote, no matter how old, for evidence of wrongthink, real or imagined.
After graduating with honors from Dartmouth College and Stanford Law School, Menashi clerked at the U.S. Court of Appeals for the District of Columbia Circuit and then for Justice Samuel Alito of the Supreme Court before joining a top-flight firm and teaching law at the Antonin Scalia Law School at George Mason. He spent the last two year as acting general counsel of the Department of Education and is currently associate White House counsel and special assistant to the president. Even the notoriously biased American Bar Association rated Menashi “well qualified” to be a judge.
But ever since the failure of the nomination of the impeccably qualified Robert Bork to the Supreme Court, the Left has tried to repeat the feat by declaring a perpetual open season on any and every conservative judicial nominee. Indeed, the best nominees tend to get the worst treatment precisely because they pose the greatest threat to longstanding leftist dominance of the courts. My recent book, Justice on Trial, coauthored with Mollie Hemingway, dissects this phenomenon as applied to the Brett Kavanaugh confirmation.
In Menashi’s case, the opening salvo came from Rachel Maddow, who claimed he supported “racial purity in the nation-state” and tied him to domestic terrorists and white supremacists because he wrote an academic article defending the State of Israel. If you are scratching your head wondering how defending Jews can possibly be equated with white supremacy, you are not alone. Menashi’s point was simply that it was possible for Israel to be both a liberal democracy and serve as a Jewish homeland because prioritizing a common culture is not inconsistent with democratic values.
Menashi’s defense of Israel has roots in his family history. The nominee’s grandparents suffered anti-Semitism in Iraq and the former Soviet Union — his grandmother survived a pogrom in Baghdad — before emigrating to the United States, as did his in-laws, who were Soviet refugees.
Maddow’s smear backfired, as Jewish activists called her out for anti-Semitism. But the attacks did not stop there.
Having exhausted Menashi’s academic scholarship, and apparently having not found anything of note in his high school yearbooks, the Left turned to his college writings, which were surprisingly articulate and thoughtful for such a young man. His work on the Dartmouth Review is distinguished by fairness to ideological opponents and consistent reliance on evidence to support his arguments. But neither his civility nor rigor could ever absolve him of his original sin: defending conservative positions.
One week after Maddow’s hit piece, CNN jumped into the fray, picking through his college writings for quotations on controversial issues and then ripping them out of context.
CNN’s headline blared that Menashi had “denounced feminists, gay-rights groups and diversity efforts.”
CNN insinuated that Menashi is an open misogynist by claiming he “has a history of denouncing women’s marches against sexual assault.” This is akin to saying that people who “denounce” the excesses of antifa protests are pro-fascist. The point of the article in question was that it is grossly unfair to encourage women to see every man as a potential rapist instead of judging people as individuals. Most members of the public believe that just as women should not be judged by stereotypes, neither should men, and to state this is certainly not grounds to disqualify a nominee from a judicial position.
As for allegedly denouncing gay rights groups, CNN took exception to Menashi’s criticism of the Human Rights Campaign for not living up to its name when it refused to condemn the gruesome rape and murder of a 13-year-old boy committed by two gay men. Incidentally, Menashi relied on arguments made by the gay journalist Andrew Sullivan, who also called out HRC’s rank hypocrisy.
CNN is right about one thing, though. Menashi did denounce “diversity efforts,” but he did so for eminently good reasons. He frequently criticized identity politics and political correctness as divisive, undemocratic, and a threat to academic freedom. He wrote that college orientation programs for minority students seemed more interested in promoting a monolithic political orthodoxy than true diversity. He endorsed a genuine multiculturalism that would include actually learning about other cultures or non-Western languages, rather than simply denigrating Western culture as part of a political agenda.
A month later, CNN published another article about Menashi’s college writings that CNN claimed “linked abortion to infanticide and decried college distribution of morning-after pills.”
Menashi was discussing the Born-Alive Infants Protection Act, which clarified the commonsense idea that a child born alive is entitled to the protections accorded to full human beings, regardless of the circumstances of birth, including botched abortions. Leaving aside the fact that large swaths of the public believe late-term abortion and infanticide should both be outlawed, Menashi’s argument in 2001 seems downright prescient when considering that abortionist Kermit Gosnell was later convicted of the mass murder of newborns in his “house of horrors” clinic in Philadelphia.
Menashi’s article about morning-after pills questioned Dartmouth’s policy of handing out these powerful drugs to students like candy. He pointed out that Dartmouth student advisers were giving out prescription medicine on demand without a prescription, which was, of course, illegal. He also criticized the fact that Dartmouth medical staff were misleading students into believing the pills only worked to prevent conception, when in fact, the drug manufacturer itself states that it also can work by preventing implantation of a living embryo, which many students regard not as contraception, but abortion.
Most people would be embarrassed to reread their musings from their teen and early adult years. But even as a young college student and recent graduate, Menashi managed to address divisive topics thoughtfully, respectfully, and fairly.
It is merely because some of those arguments took conservative positions that he has been subjected to unrelenting and misleading attacks from biased news media. These attacks, it should be emphasized, that would never be leveled with the same degree of scrutiny toward the college writings of a Democratic nominee for a judgeship.
Practically every day brings another example of cancel culture run out of control. Ideas that once were not only debatable but considered commonsense are now treated as indefensible by the PC police. But while pendulum swings are expected in any free society, the trend toward silencing people who dare to voice ideas unpopular among elites is worrisome. Rather than engaging in the open exchange of ideas and hoping that the best arguments win, the left increasingly resorts to ad hominem attacks, caricatures, and smears.
As the case of Menashi shows, the Left is now attempting to make basic conservative beliefs disqualifying. He is not the first judicial nominee who’s faced opprobrium for the simple fact of being a conservative. During Amy Coney Barrett’s confirmation hearing before the Senate Judiciary Committee in 2017, California Sen. Dianne Feinstein attacked the nominee for her Catholic beliefs. “The dogma lives loudly within you, and that’s a concern,” Feinstein stated in plainly anti-religious language. In 2018, Brian Buescher, who was then a federal district court nominee, was similarly questioned by Democratic senators for his Catholicism and affiliation with the Knights of Columbus.
As a young Menashi once put it, “Part 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.” Menashi was defending free speech on campus, but his words ring all the more true today as PC culture has also infected corporate boardrooms, newsrooms, movie studios, and Senate hearing rooms.
Unfortunately, the judicial confirmation process has degenerated into a forum for heavy accusations thrown at nominees. Menashi’s nomination is likely to succeed in the Republican-controlled Senate, but the larger picture is clear. Yet again, Democrats have shown they care little for nominees’ legal record or professional qualifications. Instead, their focus is on ideological and religious purity tests, and they will no longer tolerate conservatives in public service.
Carrie Severino is chief counsel and policy director of the Judicial Crisis Network and co-author of Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court.
