Norton, CBC Oppose Menashi’s Nomination to Second Circuit

WASHINGTON, D.C. – Congresswoman Eleanor Holmes Norton (D-DC) and Chairwoman of the Congressional Black Caucus (CBC) Karen Bass (D-CA) today released a letter sent to Senate leadership in strong opposition to Steven Menashi's nomination to be a judge on the U.S. Court of Appeals for the Second Circuit. Norton is the chair of the CBC Judicial Nominations Task Force. In the letter, the CBC wrote of its concerns that, like many Trump judicial nominees, Menashi has devoted much of his career to attacking minorities, women and members of the LGBTQ community. Menashi, opposed by both of his home-state senators, has written specifically against the importance of diversity and inclusiveness. The letter was signed by Bass and Norton, as well as all the members of the CBC representing districts covered by the Second Circuit – Jahana Hayes (D-CT), Gregory Meeks (D-NY), Hakeem Jeffries (D-NY), Yvette Clarke (D-NY), and Antonio Delgado (D-NY).

"The Congressional Black Caucus is committed to supporting judicial nominees who believe in "Equal Justice Under Law" for all Americans. Unfortunately, Mr. Steven Menashi's legal writings show a willingness to discriminate against minorities, women, and the LGBTQ community," Bass said. "This is a lifetime appointment and anyone who expresses discriminatory views against minorities does not deserve the privilege to serve on the United States Court of Appeals for the Second Circuit."

"Steven Menashi represents the most recent in a long list of unacceptable nominees to lifetime appointments to the federal judiciary," Norton said. "Menashi's refusal to answer many questions at his confirmation hearing, for which even Republicans chided him, and opposition by both of his home state U.S. senators should be reason enough not to confirm him to the Second Circuit. Menashi has devoted his writing and his career to attempting to dismantle vital protections for women, minorities and members of the LGBTQ community, which should disqualify him from a lifetime appointment to the federal bench."

The CBC's full letter follows:

The Honorable Lindsey Graham The Honorable Dianne Feinstein

Chairman Ranking Member

Judiciary Committee Judiciary Committee

United States Senate United States Senate

Washington, DC 20510 Washington, DC 20510

Dear Chairman Graham and Ranking Member Feinstein:

We write to express our strong opposition to the nomination of Steven Menashi to the Second Circuit. Menashi's writings show a willingness to discriminate against minorities, women and the LGBTQ community. Menashi, who has consistently spoken against diversity and inclusiveness, does not deserve a lifetime position on one of the most important appellate courts in the country. While many of his most egregious statements stem from his writings in college, there is every reason to believe that he has carried these views forward into his legal career, where he has continued to express extremely problematic views against a diverse and inclusive society.

As members of the Congressional Black Caucus (CBC), we are particularly concerned about Menashi's troubling writings on race and ethnicity. For example, while in college, Menashi wrote that merely collecting students' racial data constituted "a subversion of the liberation of mind promised by education," and connected the practice, required by federal law, to "the Nuremberg laws." He defended a fraternity at his college for throwing a "ghetto party," where participants wore Afros and held toy guns. He claimed this was "harmless and ultimately unimportant" and the response was an unnecessary "uproar." He likewise has written that "charges of racism are typically overblown" and "[a]cademic multiculturalism… has been exposed as thoroughly bankrupt." If Menashi believes mocking African Americans is "harmless and ultimately unimportant," we see no reason to believe he would be objective as a judge in meeting his duty to fairly view important civil rights protections for minorities and others while on the court. He also wrote out against the "elaborate distortion of the law" that resulted in Title VII of the Civil Rights Act of 1964 being used as "a tool for imposing equality of results rather than equal opportunity," and bemoaned that Title VII is used to advance the civil rights of those who have suffered decades of discrimination and their descendants, and not to protect the apparently now "disfavored group[]" that is white men, as he put it.

Menashi's views denigrating diversity continued after he graduated from college. In 2002, Menashi wrote that when then-Italian Prime Minister Silvio Berlusconi talked of "‘the superiority of our civilization… in contrast with Islamic countries,'… Mr. Berlusconi did nothing other than state the obvious." As a practicing attorney, he wrote in a law review article that "ethnonationalism remains a common accepted feature of liberal democracy that is consistent with current state practice and international law… Ethnic ties provide the groundwork for social trust and political solidarity and, universalist aspirations notwithstanding, continue to do so." He was further dismayed that "[b]ecause it embraces a principle of universalistic human equality, modern democratic thinking cannot justify the particularistic national context in which liberal democracy was nurtured and continues to thrive. The difficulty with the modern attitude is that it assumes human equality exists prior to political society and that liberal democracy springs logically from this preexisting fact." He further concluded that "the solidarity underlying democratic polities rests in large part on ethnic identification. Surely, it does not serve the cause of liberal democracy to ignore this reality." These are shocking views, and they are not from a naïve college student – they were written after Menashi had completed law school. While serving in the Department of Education ("Department"), Menashi provided legal advice that aimed to delay implementation of regulations to assist students with disabilities, who the Department had identified as being disproportionately racial minorities, admitting that he "was responsible for all legal advice to policymakers within the Department." The Department also limited the scope of its investigations, refusing to conduct systemic review of institutional practices when receiving a complaint of discrimination, and increased the circumstances in which a discrimination complaint could be dismissed. It also rolled back guidance concerning affirmative action and the use of race in college admissions, a policy the Supreme Court has upheld for decades.

Menashi has also devoted much energy to demonizing the LGBTQ community. For example, Menashi criticized the Human Rights Campaign (HRC), one of the most significant pro-equality organizations in the country, for "incessantly exploit[ing] the slaying of Matthew Shepard for both financial and political benefit," and criticized HRC for not focusing on two gay men who raped and murdered a child, Jesse Dirkhising. LGBTQ individuals, of course, are frequently targeted for violence, especially because of their sexual orientation, a special focus of organizations like HRC.

In an article from 2000, Menashi criticized "tony colleges" for the apparent hypocrisy of having optional LGBTQ living areas while simultaneously criticizing the military's "Don't Ask Don't Tell" policy. He failed to see that separate, optional, housing for LGBTQ individuals to respect their privacy while avoiding discrimination and bullying was different from "Don't Ask Don't Tell," a policy that resulted in discrimination against the LGBTQ community, later overturned by Congress. Under his tenure, the Department of Education decided it would no longer investigate discrimination cases filed by transgender students, banned from using the restroom corresponding to their gender identity. It is difficult to see how Menashi could be expected to objectively consider matters affecting LGBTQ individuals.

Menashi has similarly deprecated the notion that women experience discrimination. He criticized the "prevailing view among educators… that girls are disadvantaged, and systematically victimized, in American schools." In the same article, Menashi wrote that "Darmouth's well-financed Women's Resource Center rails against the heteropatriarchal gynophobes…," and that marches against sexual violence merely "charge the majority of male students with complicity in rape and sexual violence" where "every man's a potential rapist…" He further argued that men are given no "leeway," was critical that "[o]ffhand remarks or jokes can create a ‘hostile environment' or ‘stigmatize' women – and can be punished through official disciplinary action," and complained that women are treated analogously to "an oppressed minority." In another article, Menashi wrote that after fraternity members yelled racist and sexist comments to a female student, students who rightfully protested against the fraternity had "vomited" "the usual charges of racism," in their "hysteri[a]." He further called verbal attacks on women "silly," and reduced them to unimportance because the perpetrators "spoke words," even as the victims "cower[] behind a veil of namelessness." This anti-woman language fails to recognize the impact of racist and misogynistic actions and is completely unacceptable for a nominee to one of the nation's most important courts. Continuing with this ideology in his career, Menashi helped oversee the Department's roll back of key Title IX sex discrimination rules to help fight college campus sexual harassment and assault.

There is also no reason to believe that Menashi would respect a woman's right to choose. He mockingly criticized supporters of the law and choice as supporting abortion "as a fundamental right, no less," and wrote of an alleged "consensus that opposes the radical abortion rights advocated by campus feminists and codified in Roe v. Wade and subsequent decisions…" A woman's right to make this choice is a constitutionally recognized right that has been reaffirmed by the Supreme Court and does not deserve mockery. A person who so disrespects precedent (indeed admitting that the decision has been reaffirmed) and mocks fundamental rights does not deserve a lifetime appointment to the federal bench.

Menashi represents only the latest in a long line of completely unacceptable nominees coming from this Administration. We must do better. The CBC will continue to fight these nominees as vigorously as possible. Out of respect for Americans deprecated by this nominee, we strongly urge you to reject the nomination of Steven Menashi to a lifetime appointment in the federal judiciary.

Sincerely,

Karen Bass

Chair, Congressional Black Caucus

Eleanor Holmes Norton

Chair, CBC Judicial Nominations Working Group