Steven Menashi – Nominee to the U.S. Court of Appeals for the Second Circuit

The 40 year old Menashi is poised to be one of the most controversial appellate nominees from the Trump Administration, given his writings exploring sensitive issues including ethnonationalism, religion, and constitutional meaning.  

Background

Steven James Menashi was born on January 15, 1979.  Menashi received his B.A. magna cum laude from Dartmouth College in 2001.  After graduating, Menashi worked for the Hoover Institute, a think tank based out of Stanford University and then spent a year working as an editorial writer for the New York Sun.  Menashi then joined Stanford Law School, graduating in 2008 with the Order of the Coif.  After graduating, Menashi clerked for Judge Douglas Ginsburg on the U.S. Court of Appeals for the D.C. Circuit and then for Justice Samuel Alito on the U.S. Supreme Court.

After his clerkships, Menashi joined the New York City office of Kirkland & Ellis.  In 2016, Menashi left to become a law professor with the Antonin Scalia Law School at George Mason University.  In 2017, he joined the U.S. Department of Education, serving as Acting General Counsel.  In 2018, Menashi joined the White House as Special Assistant to the President and Associate Counsel to the President, where he currently serves.

History of the Seat

Menashi has been nominated for a New York seat on the U.S. Court of Appeals for the Second Circuit.  This seat was vacated by Judge Dennis Jacobs, who moved to senior status on May 31, 2019.  

Legal Career

Menashi’s primary litigation experience has been the five years he spent at Kirkland & Ellis.  At the firm, Menashi participated in a number of suits involving pharmaceutical companies.  For example, he was part of the legal team that defended Abbott Laboratories for a suit relating to the psoriasis drug Humira, which the plaintiff alleged caused her to develop squamous cell carcinoma of the tongue.[1]  Menashi also defended a number of pharmaceutical companies against qui tam lawsuits alleging that they had defrauded the federal government by submitting fraudulent reimbursement claims.[2]  In a more controversial matter, he represented Teva Woman’s Health, a pharmaceutical company intervening in a suit seeking to allow emergency contraceptives to be sold without requiring a prescription.[3]

On the constitutional side, Menashi represented Jewish religious organizations in intervening in a lawsuit that challenged approval of religious projects in the City of Boca Raton.[4]  Judge Marra ultimately dismissed the lawsuit, brought by self-identified Christians, for lack of standing.[5]

Writings

Having worked as a journalist and an academic, Menashi has written extensively on the law, public policy, and issue areas that interest him.  While it is difficult to succinctly summarize all of his writings, two particular strains are highlighted below.

Constitutional Structure and Administrative Law

Menashi has written extensively on the U.S. Constitution, separation of powers, and federalism.  In interpreting the Constitution, Menashi is generally a proponent of textualism and a critic of the “living Constitution.”[6]  Furthermore, he is critical of the current structure of administrative law, arguing that it fails to support limited government and gives too much power to administrative agencies.[7]  Interestingly, he supported President Obama for using policy czars that were appointed solely by the White House and (unlike many agency heads) insulated from congressional oversight, noting that having the legislature oversee executive policy was “the greater threat to separated powers.”[8]  From these writings, one can conclude that Menashi is generally a proponent of greater executive power and less delegation of authority to agency heads and lawmakers.  

Ethnonationalism and Israel

Perhaps none of Menashi’s writings has drawn as much attention as a 2010 paper on the ethnonationalistic nature of Israel.[9]  The article has been criticized by various commentators, including Rachel Maddow as a call for state nationalism and “racial purity.”  In turn, Maddow and Menashi’s critics have themselves been criticized for being “racist” and “anti-semitic” in their criticism of Menashi.[10]

The article itself discusses Israel, and its commitment to being a “Jewish” state.  In the article, Menashi counters arguments that liberal democracies cannot bind themselves along an ethnonationalistic identity, arguing instead that the Holocaust “revealed that a liberal scheme of human rights requires a system of particularistic nation-states.”[11]  Menashi goes on to argue that the Holocaust targeted individuals who had no nation-state to support them and who were dependent on the concepts of “universal human rights” for protection.[12]  He goes on to argue that Israel’s system of citizenship and nationality is no different than those of other nation-states, comparing Israel’s “law of return” to kin-repatriation systems in other countries.

Menashi concludes:

“A political order may insist that certain human differences are irrelevant while people themselves regard those differences as meaningful and are consequently reluctant to recognize others as their equals.  Where the political order does not account for differences which correspond to deeply felt allegiances, the fact of difference becomes a threat to the political order.”[13]

Political Activity

Menashi has donated primarily to Republicans throughout his career.[14]  For example, Menashi donated to support Mitt Romney’s presidential campaign in 2012, as well as the Right to Rise PAC, which supported Jeb Bush’s presidential campaign in 2016.[15] 

Overall Assessment

There is little doubt that Menashi’s confirmation will be contentious.  Critics, after all, have a fair basis for arguing that Menashi holds a strongly conservative judicial philosophy and that his confirmation will move the closely divided Second Circuit sharply to the right.  

However, in discussing Menashi’s nomination, it is worth taking the time to consider the specific critiques based on Menashi’s 2010 article on ethnonationalism.  The thesis of the article could be summed up as follows: critics of Israel for maintaining an ethnonationalistic identity as a “Jewish” state are mistaken, as such ethnonationalistic identities are fundamental to the functioning of a liberal democracy.  Menashi’s article reads as a recognition that humans are tribal creatures and have inherent tendencies to organize in groups.  As such, the most vulnerable are those with no organized force to advocate for them.  In that sense, the article attempts to make a point consistent with one others have tried to make regarding race, namely that prejudice is such a deeply ingrained human quality, and that makes true blindness and universalism impossible.  As such, it is only through a recognition of race/nationalism and its impact, that one can completely transcend it.

That being said, Menashi’s critics (and it goes without saying that one can criticize an individual’s views without necessarily being motivated by prejudice) aren’t entirely off base either.  Menashi’s historical analysis is based upon the essential “statelessness” of the Jews (and other minorities targeted by the Holocaust).[16]  However, one could argue that the Jews targeted by the Holocaust were not stateless, but rather were the citizens of their home countries.  Furthermore, one could note that they were betrayed, not by universalism, but by a restrictive nationalism that denied their citizenship and humanity.

As such, one can disagree with Menashi’s thesis in the article.  While it is true that Israel’s brand of national ideology is far from unique among liberal democracies, it does not necessarily follow that such ethnonationalism is inherent or fundamental to liberal democracy.  Rather, one could use the United States as proof that liberal democracies can base their identity around a state ideology rather than ethnicity and can continue to thrive as such.

Overall, Menashi’s prolific writing career leaves senators with many aspects on which to question him, making today’s hearing all the more powerful for its impact.


[1] DiBartolo v. Abbott Labs., 914 F. Supp. 2d 601 (S.D.N.Y. 2012).

[2] United States v. Alpharma, Inc. et al., 928 F. Supp. 2d 840 (D. Md. 2013).

[3] Tummino v. Hamburg, 936 F. Supp. 2d 162 (E.D.N.Y. 2013).

[4] Gagliardi v. City of Boca Raton, 197 F. Supp. 3d 1359 (S.D. Fla. 2016).

[5] See id. at 1365-66.

[6] See Steven Menashi, The Undead Constitution, Policy Review (Oct-Nov. 2009).  

[7] Douglas H. Ginsburg and Steven Menashi, Our Illiberal Administrative Law, NYU Journal of Law & Liberty (2016).

[8] Steven Menashi, All the President’s Czars; Obama Emerges As a Champion of the Unitary Executive, Weekly Standard, Oct. 12, 2009.

[9] Steven Menashi, Ethnonationalism and Liberal Democracy, University of Pennsylvania Journal of Int’l Law (Nov. 2010).

[10] See, e.g., David Bernstein, Rachel Maddow’s Racist Smear of Second Circuit Nominee Steve Menashi, Reason, Aug. 17, 2019, https://reason.com/2019/08/17/rachel-maddows-racist-smear-of-second-circuit-nominee-steve-menashi/.  

[11] Id. at 61.

[12] Id. at 64.

[13] Id. at 121.

[15] See id.

[16] See supra n. 9 at 64.

1 Comment

  1. Practical Senate politics- During the last session, with the Senate at 51-49 with McCain and Flake, there would have been no way Menashi would have been confirmed.
    Now, at 53-47, there’s a strong chance he gets confirmed, even with a few defections. But the president will owe Graham and McConnell for holding the caucus together.
    It’ll be a big win for the administration in many ways.

    Like

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