Trump Flips Second Circuit With Controversial Judge

White House lawyer Steven Menashi, President Donald Trump’s Second Circuit nominee, appears for his confirmation hearing before the Senate Judiciary Committee on Sept. 11, 2019. (AP Photo/J. Scott Applewhite, File)

WASHINGTON (CN) – In a vote that will flip the makeup of the New York-based appeals court, the Senate on Thursday confirmed a controversial White House lawyer to a seat on the Second Circuit.

With Steven Menashi’s confirmation on Thursday afternoon, a majority of the 13 judges on the Second Circuit have been appointed by Republican presidents. Menashi is the fifth judge President Donald Trump has appointed to the court and the fourth this year alone.

Menashi’s nomination was one of the most contentious to come through the Senate recently, due to the combination of his position in the Trump administration, controversial writings from before he was a lawyer and his dodging of questions during his confirmation hearing before the Senate Judiciary Committee.

Senate Minority Leader Chuck Schumer, D-N.Y., called Menashi a “bottomcrawler” on Wednesday after the nominee cleared a procedural vote in the full Senate and on Thursday reiterated his staunch opposition to Trump’s pick.

“Mr. Menashi is a textbook example of someone who does not deserve to sit on the federal bench, particularly with a lifetime appointment,” Schumer said on the Senate floor Thursday. “My Republican colleagues, in my view, rubber-stamped too many of these extreme, unqualified nominees – nominees, in Mr. Menashi’s case, who are almost craven.”

A former clerk to Justice Samuel Alito on the Supreme Court, Menashi has worked in the White House Counsel’s Office since 2018, spending time before that as an attorney at the Department of Education. A member of the conservative Federalist Society, Menashi worked as a professor at the Antonin Scalia Law School at George Mason University and worked as a partner at the New York firm Kirkland & Ellis.

Menashi’s time at the White House and the Department of Education has put him at the center of some of the Trump administration’s most controversial policies, but he was initially reluctant to answer when senators asked about specific issues he advised on as an attorney in the administration.

His refusal to answer questions during his nomination hearing drew frustration from Republicans and Democrats alike and helped delay his path through the Senate Judiciary Committee.

When pressed about his work in questions senators submitted in writing after his hearing, Menashi was somewhat more forthcoming. He told senators he advised on several high-profile immigration policies, including restrictions and changes the administration made to the process of claiming asylum at the southern border, funding options for Trump’s long-promised border wall and the administration’s use of expedited removal.

The New York Times reported last week that Menashi was involved in the drafting of a Department of Education policy that used Social Security data when denying debt relief to students who were defrauded by for-profit colleges. A federal judge in June ruled the policy violated federal privacy laws.

Menashi told senators that he did not work on the administration’s family separation policy as it predated his time at the White House. He also said he did not provide advice on gun control, pardons or issues related to the Constitution’s emoluments clause.

But Menashi did not respond to questions from Senate Democrats about whether he has worked on issues related to the ongoing impeachment inquiry in the House, including the whistleblower complaint that helped launch the probe. He said in response to separate questions that he did not work on issues related to congressional oversight while at the White House.

His time before joining the administration proved similarly controversial, as Democrats and progressive groups raised alarms about writings dating back to his time as an undergraduate at Dartmouth in which he criticized affirmative action, the state of abortion law and college efforts to take on sexual misconduct. Menashi was also critical of trial lawyers in an opinion piece he wrote for The New York Sun in 2004, saying they “have been feeding on the public for long enough.”

When pressed on his college writings, Menashi said his views have changed since he was an undergraduate and that he regretted the tone of the pieces. As for the writings from after he graduated, Menashi said those came before he went to law school and that the job of an attorney or judge is different from that of an opinion writer.

The 46th appeals court judge Trump has appointed during his time in office, Menashi was confirmed 51-41 on Thursday afternoon. Senator Susan Collins, R-Maine, was the only Republican to oppose his nomination.

The Second Circuit hears cases from New York, Connecticut and Vermont.

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