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Trump Second Circuit Pick Menashi Set for Full Senate Vote (3)

Nov. 7, 2019, 4:25 PMUpdated: Nov. 7, 2019, 8:32 PM

The full Senate will consider White House lawyer Steven Menashi’s nomination to a New York-based appeals court as soon as next week with controversy swirling over his role as a Trump administration legal adviser and controversial writings on race.

Senate Majority Leader Mitch McConnell moved toward a vote on the former Kirkland & Ellis partner’s selection to the U.S. Court of Appeals for the Second Circuit just hours after the Judiciary Committee approved the nomination Nov. 7 with only Republican support.

Republican Judiciary Chairman Lindsey Graham of South Carolina said questions about Menashi on policy and personal grounds, fair or not, have further elevated rancor over Trump appointments to the federal bench. It reached a new partisan pitch last week over American Bar Association judicial qualification ratings.

The South Carolina Republican acknowledged before the committee action that Menashi is “different” than the type of nominee he’d prefer, and tolerance for opposing views would “be the subject of Mr. Menashi’s vote.”

Committee action on Menashi and the other nominees extended efforts by Trump and Republican Senate allies to remake the judiciary with younger conservatives. So far, Trump has appointed nearly 160 district and appeals nominees and two Supreme Court justices.

Trump said Nov. 6 that he’s looking to add another two dozen confirmed nominees in coming months. The Senate is facing time new time pressures with the prospect of holding a trial should the House impeach him.

Counting Votes

The committee vote on Menashi was deferred in recent weeks as Republicans worked to line up votes after a rocky confirmation hearing and other controversies swirling around his nomination.

His fate in the full Senate isn’t clear with at least one Republican, Susan Collins of Maine, not planning to support him. Other Republican senators who have in the past voted no on controversial nominees have yet to join her.

Alaska Sen. Lisa Murkowski, who voted no on Brett Kavanaugh’s nomination to the Supreme Court, said she’s undecided. South Carolina’s Tim Scott, the only black senator whose objections over racial issues scuttled a previous Trump appellate nominee, said he plans to vote yes.

Democrats have lashed out at some of Menashi’s writings race, abortion, and sex assault. These included an opinion piece in the “Dartmouth Review” from his college days in which he called a “ghetto” themed college party “harmless and unimportant.” In another writing in 2010 he argued that diverse societies functioned poorly. He tried at his confirmation hearing to explain away some of those writings and said he abhorred discrimination.

Democrats don’t have the numbers to stop him on their own under Senate rules if Republicans stick together. But Menashi can only afford to lose a few GOP votes, assuming he gets no support from across the aisle.

Second Circuit appointments are magnified in the Trump era. The court, centered in the nation’s financial capital, could wind up addressing disputes around presidential controversies, ranging from his business dealings to any criminal liability. It has already ruled on Trump’s ability to block critics on Twitter.

Controversial Policies

Menashi’s elite education and professional credentials—Stanford law, Justice Samuel Alito clerk, and Big Law partnership—contrast with Democratic complaints about his lack of trial court experience, controversial writings, and what they said has been his refusal to discuss even basic details about his role as a top-level Trump administration legal strategist.

Judiciary Committee member comments before the Menashi vote were some of the most extensive in recent memory.

Democrats tied him to an Education Department policy that they said denied debt relief to students defrauded by for-profit colleges and a White House initiative that separated immigrant families at the Southern Border.

Democrats also expressed frustration at his refusal to answer questions about his role in Trump administration legal strategy, including any proximity they said he may have to the Ukraine controversy at the center of the House impeachment inquiry.

“I don’t think any senator should vote for a nominee who repeatedly refuses to answer our questions,” said Sen. Patrick Leahy of Vermont. “You don’t get a Fifth Amendment privilege on nominations. There’s no free pass to Senate confirmation.”

Republicans, some of whom also weren’t happy with is reluctance to discuss basics about his White House job, came to his defense. But it wasn’t full-throated in most cases.

Graham said disagreements over policy are understandable but not a reason to necessarily reject a nominee. He added that he’d never hold a lawyer’s work for a client against them.

“I can tell you if I applied that to people working in the Obama administration, none of them would get through,” Graham said.

Graham noted that Menashi has “led a consequential life” despite questions about his writings and suitability for a lifetime judicial appointment.

Sen. John Kennedy was critical of Menashi’s refusal to be more forthcoming about his White House work, and said he thought hard about his qualifications.

“I spent a lot of time reading his materials, and I think it would be fair to say some of his views are eclectic, and some of them I don’t agree with,” the Louisiana Republican said, adding that honest disagreements shouldn’t be considered character flaws.

Nominee In Trouble

Action on the nomination of another controversial Trump appeals nominee, U.S. District Judge Halil Suleyman Ozerden, was held over by the committee “at the request of the White House,” Graham said.

That decision suggests Ozerden’s nomination to the U.S. Court of Appeals for the Fifth Circuit has flagging support and could be withdrawn.

Ozerden has been stuck in committee for weeks after conservative Republican Sens. Ted Cruz of Texas and Josh Hawley of Missouri expressed opposition. They and some outside groups say he’s not conservative enough on religious liberty and other issues.

The Judiciary Committee also sent to the full Senate the nominations of Barbara Lagoa and Robert Luck, both justices on the Supreme Court of Florida. They are nominated to seats on the Eleventh Circuit, which encompasses Florida, Alabama, and Georgia.

They have received little, if any, pushback from Democrats.

—With Nancy Ognanovich

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com