Mr. Menashi Under Siege

Steven Menashi, President Donald Trump’s nominee for a judgeship on the U.S. Court of Appeals for the 2nd Circuit, which covers New York, Connecticut and Vermont, despite his “well qualified” rating from the American Bar Association, is under attack from several directions.

The nominee, a New York native, is opposed by his home state’s U.S. senators, Democrats Chuck Schumer and Kirsten Gillibrand.

All the Democrats on the Senate Judiciary Committee, moreover, have expressed concerns about Mr. Menashi and have sent him a letter asking about any role he may have played in the events surrounding the telephone call between President Trump and Ukrainian President Volodymyr Zelenskiy that has resulted in charges that the president illicitly used his power of office to further his domestic political goals.

Mr. Menashi has also drawn strong opposition from progressive groups that charge him with being callous toward minority groups and women. The nominee once compared race data collection in college admissions to Nazi policies, has denounced women’s marches and has opposed the “radical … rights codified in Roe v. Wade.”

In September, in a letter to the U.S. Senate Committee on the Judiciary, Agudath Israel’s Washington Office director Rabbi Abba Cohen recommended Mr. Menashi’s confirmation, citing his pro bono advocacy as a private lawyer on behalf of a Florida shul opposed by hostile local residents. Rabbi Cohen lauded the nominee’s “appreciation of the robust application of free exercise rights, so vitally important to the Jewish and other faith communities, and to our democratic republic.”

But opposition to the nomination proceeds as well, most recently from People for the American Way, which lists, among other ostensible sins of Mr. Menashi, his work as general counsel to the Department of Education under Secretary Betsy DeVos, “an individual with no experience in public education but long known for her ideological zeal against public schools.”

The NAACP, for its part, accuses Mr. Menashi of “a vile, offensive record of attacking communities of color and opposing civil rights protections.” The group contends that “the bias and hostility he has exhibited throughout his adult life prevent him from serving as a fair and impartial judge.”

Mr. Menashi told senators that he regrets the “lack of balance and provocative tone” in some of his past writings, and that his “tone has matured.” He asserted that he “would not express myself the same way today as I did in college,” and understands that “the role of an editorial writer … is different than that of a lawyer or of a judge.

“A judge,” he continued, “refrains from politics and puts his or her personal views aside to decide cases based on what the law requires.”

Whatever problems, however, justified or not, anyone may have with Mr. Menashi’s nomination, one of the charges that has been leveled against him is unarguably misguided.

This past August, liberal commentators, prominently including MSNBC’s Rachel Maddow, accused Mr. Menashi, whose father was an Iraqi Jew born in Iran and whose mother’s parents were Jewish refugees from the former Soviet Union, of supporting “white nationalism.”

The accusation was echoed by the National Council of Jewish Women, which said it was “stunned and deeply disturbed by Steven Menashi’s calls for ‘ethnonationalism’ and against ‘ethnic heterogeneity.’ In these words, we hear haunting echoes of cries for a master race and racial purity.”

The charge, ludicrously, was based on an article Mr. Menashi wrote nearly a decade ago, published in the University of Pennsylvania Journal of International Law, defending Israel’s legitimacy as a Jewish homeland.

The phrase that so exercised the commentators, as referenced by the Jewish women’s group, was “ethno-nationalism,” which Mr. Menashi observed in his article, “remains a common and accepted feature of liberal democracy that is consistent with current state practice and international law.”

In his article, Mr. Menashi cited Ireland, Greece and Bulgaria, among other countries, that have an ethnicity-based idea of national identity.

“Far from being unique,” he wrote, “the experience of Israel exemplifies the character of liberal democracy by highlighting its dependence on particularistic nation-states.”

The critics neglected to note either the innocuous intent of the phrase or the context in which it was invoked, as a defense of Israel as a Jewish homeland.

In his Senate testimony last month, Mr. Menashi spoke of his Jewish heritage and called the charge of ethnic racism “hurtful.” He also made clear that he was referring to other nations, not the U.S., which, he said, bases its national identity not on ethnicity but rather on a commitment to “constitutional traditions.”

Commentator Maddow was rebuked for her mischaracterization of Mr. Menashi’s views both by conservative media like Reason and The Wall Street Journal, and also by liberal ones like Vox and The Vetting Room.

The American Jewish Committee’s general counsel, Marc Stern, said that while the group is not endorsing Mr. Menashi, interpreting the law school article as somehow disqualifying of his fitness for a judgeship was “specious.”

It is indeed.