Controversial Second Circuit Pick Moves to Full Senate Vote

WASHINGTON (CN) – The Senate Judiciary Committee on Thursday approved a controversial nominee to the Second Circuit over objections from Democrats about his reluctance to answer questions about issues he worked on while serving as a lawyer in the White House.

White House lawyer Steven Menashi, President Donald Trump’s nominee for the Second Circuit, appears for a Sept. 11, 2019, confirmation hearing before the Senate Judiciary Committee, on Capitol Hill in Washington. The Senate Judiciary Committee has endorsed him for a federal appeals court post despite complaints about his refusal to answer questions about his record at the Education Department and the White House. (AP Photo/J. Scott Applewhite, File)

Steven Menashi has served in the White House Counsel’s office since 2018 and before that spent a year as an attorney at the Department of Education. A former clerk for Supreme Court Justice Samuel Alito and partner at the New York firm Kirkland & Ellis, Menashi has also worked as a professor at the Antonin Scalia Law School at George Mason University. He also has ties to the conservative Federalist Society.

Menashi’s nomination was the latest to draw the keen attention of Democrats and liberal activist groups, as his time in the White House and Department of Education put him in contact with some of the Trump administration’s most controversial policies.

Senators, including Louisiana Republican Senator John Kennedy, expressed frustration at Menashi’s nomination hearing in September when he largely dodged their questions about what issues he advised on while working in the administration.

The Judiciary Committee pushed back a vote on Menashi’s nomination last week after Kennedy expressed concerns about his record and reluctance to answer questions. But Kennedy on Thursday said while he does not agree with some of the things Menashi has said and that he is troubled by Menashi’s refusal to answer questions, his concerns have been assuaged enough that he could vote for his nomination.

“I spent a lot of time on this,” Kennedy said Thursday. “I’m going to vote for his nomination because I think his reasons are carefully, carefully articulated and I just have to make the assumption that when a nominee testifies to us that ‘I’ll put my personal feelings aside,’ we’re going to have to always assume, pretty much, that’s accurate, whether you agree with those feelings or not.”

When pressed on his work again in follow-up questions submitted in writing after his nomination hearing, Menashi was somewhat more forthcoming, telling senators he gave advice on a host of immigration policies, including restrictions and changes the Trump administration implemented on the process for claiming asylum at the southern border and on efforts to fund President Donald Trump’s long-promised border wall.

But he did not answer questions from Democrats on whether he did work on issues related to the ongoing impeachment inquiry in the House, including the whistleblower complaint that helped launch the probe. He did say separately that he did not work on issues related to congressional oversight.

Before the committee voted along party lines Thursday morning to send Menashi’s nomination to the full Senate, Democrats said Menashi’s reluctance to answer questions undermined the Senate’s role in the judicial confirmation process.

“You don’t get a Fifth Amendment privilege on nomination,” Senator Pat Leahy, D-Vt., said. “There’s no free pass to Senate confirmation.”

Democrats also raised alarms about incendiary writings Menashi penned as an undergrad and later in his career in which he was critical of affirmative action, the Supreme Court’s abortion┬ájurisprudence and trial lawyers.

In responding to concerns about his college writings, Menashi said that his views on many issues have changed over time and that he would not express himself in the same way now. He also said his job has changed from when he worked as an editorial writer before going to law school.

But Democrats remained troubled by the writings, with Senator Sheldon Whitehouse, D-R.I., referring to Menashi as a “calamity.”

The fight over Menashi’s nomination now goes to the full Senate, where Maine Republican Senator Susan Collins has said she will oppose him on a confirmation vote.

Demand Justice, a progressive activist group that focuses on the courts and judicial nominations, plans to target a handful of other Republican senators, including Alaska Senator Lisa Murkowski, Arizona Senator Martha McSally and Colorado Senator Cory Gardner, to push them to oppose Menashi’s nomination.

“With this confirmation vote, we’ll see if senators’ allegiances lie with justice or with Donald Trump,” Demand Justice Chief Counsel Christopher Kang said in a statement.

In addition to Menashi, the committee advanced the nominations of two of Trump’s choices for seats on the 11th Circuit and federal courts in Puerto Rico, Pennsylvania and South Carolina.

Eleventh Circuit nominees Barbara Lagoa and Robert Luck each received bipartisan support from the committee on Thursday morning, receiving approval in an 18-4 and 16-6 vote, respectively.

Both have served for the past year on the Florida Supreme Court after being appointed to their seats by Republican Governor Ron DeSantis.

Before taking the bench, Lagoa was a judge on the state’s Third District Court of Appeal and before that worked as a federal prosecutor in Florida after a lengthy career in private practice at law firms in Miami.

A member of the conservative Federalist Society, Lagoa was the first Cuban-American woman to take a seat on the Florida Supreme Court.

Luck was also a judge on the Third District Court of Appeals and came to that court after sitting on the Eleventh Judicial Circuit Court of Florida from 2013 to 2017. Before that, Luck worked as a federal prosecutor in Miami.

Both judges faced questions from Democrats about opinions they penned or joined while on the Florida state courts, in particular the Florida Supreme Court’s decision earlier this year to withdraw an earlier opinion that granted a borrower attorney’s fees after it won a foreclosure case against Nationstar Mortgage. The two had not been on the court when it first granted the fees and the court reversed its original opinion shortly after they were appointed.

Both Lagoa and Luck explained the court made the move on a motion arguing the court did not have jurisdiction based on the limited range of cases the Florida Constitution gives the court authority to consider.

Also receiving bipartisan support from the committee were John Gallagher, up for a seat on the U.S. District Court for the Eastern District of Pennsylvania, Sherri Lydon, nominated to the U.S. District Court for the District of South Carolina and Silvia Carreno-Coll, who is nominated to the U.S. District Court for the District of Puerto Rico.

Approved with a 19-3 vote, Gallagher has been a federal prosecutor in Pennsylvania since 2004 and previously did the same job in New Mexico from 2001 to 2003. A former New York City policy officer, Gallagher served as a White House fellow and counsel to the attorney general at the Justice Department from 2000 to 2001.

Lydon has been the U.S. attorney for the District of South Carolina since 2018 and previously worked at a law firm that carried her name in Columbia, S.C. The committee approved her nomination 18-4.

Carreno-Coll received unanimous support on Thursday. She has served as a magistrate judge on the court to which she is nominated since 2011 and worked as associate regional counsel at the EPA’s Caribbean Environmental Protection Division from 1995 to 2011.

Before that, she worked as a federal prosecutor in Puerto Rico and as an attorney in the Puerto Rico Department of Justice.

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