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Conservatives Launch Letter in Support of Menashi Appointment to the United States Court of Appeals for the Second Circuit

Rachel Maddow Ethnonationalism
President Donald Trump’s most recent round of judicial nominees includes Steven Menashi, nominated for a seat on the New York-based U.S. Court of Appeals for the Second Circuit. Menashi is a senior associate White House counsel who also serves as a special assistant to the president.

Menashi, is a graduate of the Stanford University Law School. He clerked for Supreme Court Justice Samuel Alito, taught at the Antonin Scalia Law School at George Mason University, was a partner at Kirkland & Ellis, and prior to joining the White House counsel’s staff, served as Acting General Counsel for the Department of Education.

Menashi’s nomination quickly became controversial when some on the left, particularly MSNBC host and commentator Rachel Maddow, zeroed in on the focus of a law review article Menashi wrote on “ethnonationalism” back in 2010.

Maddow called passages in the article a “highbrow argument for racial purity.”

Maddow grossly misrepresented Mr. Mensahi’s article which argues only that Israel’s status as a Jewish state is consistent with liberal democracy.  We note that the article did not oppose ethnic diversity, it merely rebutted the notion that Israel is unique as a liberal democracy and nation-state based on ethnic identity.

But Maddow’s misrepresentation lit a firestorm on the Left against Menashi’s nomination and caused the usual Senate Republican jellyfish to start squirming.

Now a group including many of conservatism’s most active constitutionalists has sent a letter to Senate Majority Leader Mitch McConnell rebutting the stream of lies and smears leveled at him by the Left and urging that Steve Menashi be promptly confirmed.

It is downright offensive and irresponsible for Maddow and the Left to imply that Menashi – the son of an Iraqi Jew whose family was forced to flee to Iran and then to Israel because of ethnonationalist and anti-Semitic policies – is a white nationalist.

We urge CHQ readers and friends to call their Senators, the toll-free Capitol Switchboard is (1-866-220-0044), tell your Senator to vote YES on the confirmation of Steven Menashi when it comes to the Senate floor.

The text of the letter to Leader McConnell follows:

The Honorable Mitch McConnell
United States Senate, Majority Leader
Washington, DC 20510

Re:      Senate Should Confirm Steven J. Menashi, Nominee to the United States Court of Appeals for the 2nd Circuit

Dear Leader McConnell,

For the reasons stated below, we respectfully request that you vote to confirm Steven Menashi as a judge to the United States Court of Appeals for the Second Circuit.

A judicial nominee should possess three non-negotiable characteristics. First, the nominee’s judicial philosophy should square with the text of the Constitution. Second, the nominee’s philosophy should be manifestly evident from their record over a long period of time (not just in the immediate period before their nomination). Third, the nominee’s record should testify to their courage and unwillingness to compromise their judicial philosophy. As the following research demonstrates, Steven Menashi possesses all three of these characteristics and, therefore, we strongly encourage you to vote to confirm him to the Second Circuit.

Menashi Criticizes the “Living Constitution” Judicial Philosophy as a “Zombie Constitution” that Follows the Preferences of the Activist Assembler. Menashi writes:

“… living constitutionalists urge judges to discount the original, 18th-century understanding of the Constitution and to reinterpret the document in light of contemporary mores and needs.

….Most living constitutionalists … retain the original constitutional text but infus[e] it with modern-day ideals. So, living constitutionalists aim to establish not a “living” but a zombie Constitution; they want to take the corpse of constitutional text and reanimate it with new principles in every generation. But this Constitution is at war with itself. Like Frankenstein’s monster, half dead and half alive, it wanders in the wilderness never finding complete acceptance. Call this “the undead hand problem”: The living Constitution is always an unstable mix of living and dead elements, chosen according to the preferences of the assembler.[1]

Menashi Properly Defines Textualism as a Judicial Philosophy. In a law review article discussing modern textualism he states that “textualism adheres to the original public meaning of the text.[2]

Menashi Criticizes Cass Sunstein’s “Sinister” Living Constitution Judicial Philosophy. Menashi explains that Sunstein’s theory of judicial interpretation results in examples that:

“amount to blatant justifications for a judge to impose his own personal prejudices under the cover of law. … [T]he practice is even more sinister than straightforward judicial fiat because it provides an apparently respectable scientific patina for dismissing opposing viewpoints as illegitimate and unworthy of consideration.”[3]

Menashi Explains that it is Unconstitutional to Apply “Religious Tests” to Judicial Nominees and he Criticizes the Activist Judicial Philosophy of Politicians “Using the Courts to Make Laws Rather than Interpret Them.” He writes:

Interrogating a nominee in respect of his religious beliefs is not only grossly inappropriate. It's unconstitutional. In Article 6, the Constitution provides that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." No, ever, any. It's the most emphatic single sentence in the entire Constitution.

… This attitude is the side effect of using the courts to make laws rather than interpret them. But it will be an even greater debasement of the Constitution to see the judicial nomination process tarred by religious bigotry.[4]

Menashi States that Marriage Should Be Determined by the Democratic Process Not “The Courts” Because it is Wrong for “Nine Unelected Lawyers in Washington to Make Social Policy for the Whole Nation.” Commenting on the 2004 elections, he explains:

The [marriage] initiative results suggest that, regardless of their preferences for president, voters in these states do not support same-sex marriage. The consensus transcends partisan divisions. These results only strengthen the case against imposing same-sex marriage through the courts rather than the democratic legislative process. … When judges try to overrule the public through the constitutional process, they make the Constitution itself subject to political changes.

….  Some political factions want nine unelected lawyers in Washington to make social policy for the whole nation. That only makes the political fights more bitter. But in the end, the election just ended suggests, the people will assert themselves.[5]

Menashi Praises Alliance Defending Freedom’s Work to Prevent College Discrimination Against the Christian Legal Society Who Simply Required Members to Be Christians and to Hold to the Biblical Christian Scripture About Homosexuality. Menashi wrote:

The victory for civil liberties won by Christian students at Ohio State University last week is one of those cases that is going to have a bigger impact than it has had press coverage. The Christian students forced the university to amend its nondiscrimination policies, by adding a clause to its policies governing student organizations. The new words are straightforward and, we expect, unobjectionable to most Americans: "A student organization formed to foster or affirm the sincerely held religious beliefs of its members may adopt a nondiscrimination statement that is consistent with those beliefs."

Ohio State deserves credit for recognizing what few campuses do: that faith and bigotry are not the same thing, and that trying to force religious students to surrender their beliefs when they participate in the public life of the university can become a kind of bigotry itself.[6]

Menashi Explains that the Founder’s Understanding of the Constitution Prohibits Discrimination Against Religious Groups. He writes:

So when a program is open to all, the government doesn't need to exclude religious groups and individuals.  …

We are at a moment when the courts are moving away from requiring anti-religious discrimination toward a tolerant neutrality. We'd like to think that over time this will prove beneficial to all religions without harming the freedom, recognized as far back as the founding of America, of those Americans who are not religious at all and do not wish to see the government establish one faith.[7]

Menashi Describes the Absurdity of Activists Attempting to Use the Courts to Legislate Budgets and Education Policy. He writes:

After all, what is the court supposed to do here? Order the state Legislature to impose new taxes? That would be taking judicial activism to absurd new heights. Under New York's constitution, it's the job of the governor to propose a budget and the Legislature either to turn it down or cut it down. The courts seem to assume that new funds can be litigated into existence.

The Campaign for Fiscal Equity lawsuit wasn't always so absurd. Originally, the suit aimed at redressing the imbalance in school funding between the city and the suburbs. Litigants claimed that the state's funding formula short-changed the city. While the judiciary is perfectly competent to address such an equal-protection claim, it's not exactly the best place to draft a state budget. But somewhere along the way, the Campaign for Fiscal Equity lawsuit morphed into a demand for new education funds.

That's a fine demand, but it can only be addressed to the governor and he can only propose it to the Legislature. …  [To pursue it through the courts would] overturn [the] constitutional balance.”[8]


Conclusion

Steven Menashi possesses all three of the above stated non-negotiable characteristics for a judicial nominee. His judicial philosophy squares with the text of the Constitution because he is a textualist who has applied that constitutional philosophy to some of the most important legal issues of our day. Menashi’s philosophy is manifestly evident from his record over a long period of time with the above writings dating back ten to fifteen years. Finally, Menashi’s record testifies to his courage because he has faithfully and repeatedly defended the proper constitutional result, even when it may have been counter-cultural to do so.

Steven Menashi would be an excellent constitutionalist judge and, therefore, we respectfully request that you confirm him to the United States Court of Appeals for the Second Circuit.

Sincerely,

Mathew D. Staver
Founder and Chairman, Liberty Counsel*

Tim Wildmon
President, American Family Association*

Benjamin Bull

Travis Weber
Vice President for Policy and Government Affairs, Family Research Council*

Ed Martin
President, Phyllis Schlafly Eagles*

Gary Bauer
President, American Values*

Ronald Konopaski
President
United For Life – San Francisco*
 
Judson Phillips
Founder, Tea Party Nation*

Linda Harvey
President, Mission America*

Troy Newman
President, Operation Rescue*

C. Preston Noell III
President, Tradition, Family, Property, Inc.*

Eunie Smith
President, Eagle Forum*

Mark Fitzgibbons
President of Corporate Affairs, American Target Advertising*

Rod D. Martin,
Founder and CEO, The Martin Organization, Inc.*

Shawn Mitchell
Former Chaplain, National Federation of Republican Assemblies*

Sherri R. Martin
Executive Vice President, The Martin Organization, Inc.*

Hon. Jerry Melvin
Former Dean, Florida House of Representatives*

Haley E. Martin
President, The Martin Foundation*

Nicholas Stehle
Campaign for the American Future*

Rabbi Jonathan H. Hausman

Rev. Dave Welch
President, U.S. Pastor Council*

Kent Ostrander
Executive Director, The Family Foundation (KY)*

Julaine K. Appling
President, Wisconsin Family Action*

Allen Whitt
President, Family Policy Council*

Jim Backlin
Vice President of Legislative Affairs, Christian Coalition of America*

Allan E. Parker, Jr. (JD)
President, The Justice Foundation*

Phillip L. Jauregui
President, Judicial Action Group*

* Organization listed for identification purposes only

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