Despite widespread opposition from LGBTQ and civil rights groups, the U.S. Senate confirmed on Thursday a judicial nominee selected by President Trump who as legal counsel in the White House worked with anti-immigrant hawk Stephen Miller.
The Senate narrowly confirmed Steven Menashi to a seat on the U.S. Second Circuit Court of Appeals by a vote of 51-41.
A Stanford-educated lawyer who clerked for U.S. Associate Justice Samuel Alito, Menashi most recently worked for the Trump administration, first as a general counsel for the Department of Education, then with Miller at the White House.
Sen. Richard Durbin (D-Ill.) was among the senators who took to the floor Wednesday to oppose the confirmation of Menashi, arguing he “lacks even the most basic courtroom experience.”
Among other things, Durbin took issue with Menashi’s work with Stephen Miller at the time the travel ban on Muslim countries went into effect, Department of Education policy denying loan relief to students who attended private colleges and pushing for Title IX rules lessening the burden for the accuser in sexual assaults cases on college campuses.
“The Senate should have grave reservations about advancing a nominee to the Second Circuit who currently works in the White House but would not disclose under oath what he does, who has minimal courtroom experience, who has a record of giving troubling legal advice and who has a history of expressing views which were entirely out of the mainstream,” Durbin said.
Defending Menashi on the Senate floor was Senate Majority Leader Mitch McConnell (R-Ky.)
“Even the American Bar Association’s Standing Committee on the Federal Judiciary, which has lately — lately made headlines for treating President Trump’s nominees in a less-than-even handed way, has rated this nominee ‘well-qualified,’” McConnell said.
Menashi is the descendant of Jewish immigrants who fled Iraq and Ukraine for the United States. His maternal grandparents were among the estimated 6 million Jews who died during the Holocaust.
Civil rights groups objected to Menashi on the basis he demonstrated hostility to abortion rights, diversity groups for minority students on campus and the Muslim community.
Alphonso David, president of the Human Rights Campaign, said in a statement after Menashi’s confirmation “another extremist anti-LGBTQ nominee” put forward by Trump was confirmed to the bench “with the help of Senate Republicans.”
“Steven Menashi has made a career of promoting anti-LGBTQ rhetoric, and has used whatever platform he’s handed — from his college newspaper, to legal publications, to a seat at the table at the White House — to undermine our community’s fight for equality,” David said.
Key among the complaints from LGBTQ groups on Menashi was his work as a legal counsel at the Department of Education, where he served when the Trump administration rescinded Obama-era Title IX guidance requiring schools to allow transgender kids to use the bathroom consistent with their gender identity.
Prior to the Trump administration, Menashi wrote an article for the Jewish publication Mosaic Magazine in defense of small business owners, such as Masterpiece Cakeshop, that refusing to provide wedding-related services to same-sex couples.
“Who, after all, would want to hire a wedding photographer unable to appreciate the ceremony, especially where alternatives are readily available? No one, really,” Menashi wrote. “For the plaintiffs and state regulators in these cases, the apparent motive is not to insure access to photography services or wedding cakes — which could be and were purchased elsewhere — but to vindicate a principle about the status of the photographer’s or the baker’s religious beliefs.”
Menashi’s writings from years ago have also angered LGBTQ groups. When he was a college student at Dartmouth University, he wrote the Human Rights Campaign “incessantly exploited the slaying of Matthew Shepard for both financial and political benefit.”
In responses to written questions from the Senate Judiciary Committee, Menashi said he was quoting gay conservative writer Andrew Sullivan in the article, but has nonetheless come to regret the words he wrote as a college student.
“In retrospect, criticism of the Human Rights Campaign was unfair,” Menashi wrote. “The murder of Matthew Shepard was a horrifying crime, and it is appropriate for the Human Rights Campaign to call attention to a crime motivated by hatred. I regret the suggestion that it was improper.”
Menashi, however, wouldn’t take back a 2000 writing when “Don’t Ask, Don’t Tell” was into effect arguing LGBTQ advocates are hypocritical for wanting housing specific to LGBTQ students on college campuses and openly LGBTQ service in the U.S. military.
In the letter coordinated by Lambda Legal, the 20 legal groups criticized Menashi for refusing to back down on this assertion, asserting it reveals he wouldn’t act impartially as a judge.
“The fact that Mr. Menashi is unable to distinguish between an affirmative policy establishing optional housing for LGBT students where their identities would be affirmed and where they could have some assurance of safety from harassment,” the letter says, “and a discriminatory government policy denying LGB people the opportunity to serve their country based on the prejudice or discomfort of others (whether framed as privacy or ‘unit cohesion’ arguments) is highly revealing of how Mr. Menashi would approach issues affecting LGBT litigants, and causes us grave concern that we would be unable to administer justice in a fair and impartial manner.”
The Blade has placed a request in with the White House seeking comment on opposition to Menashi’s confirmation by LGBTQ and civil rights groups.
The U.S. Senate has confirmed more than 160 judicial nominees nominated by Trump, many of whom with anti-LGBTQ records.