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Trump Appeals Court Pick Quiet on White House Legal Advice (1)

Sept. 11, 2019, 6:03 PMUpdated: Sept. 11, 2019, 10:52 PM

President Donald Trump’s latest appeals court pick in the Senate spotlight drew bipartisan rebukes from lawmakers on Wednesday, after he refused to detail advice he gave as a current White House lawyer related to immigration policies like family separation.

Steven Menashi’s contested Judiciary Committee hearing, for a seat on the crucial New York-based U.S. Court of Appeals for the Second Circuit, is the latest chapter in a historic Republican push to confirm judges, over objections from a vocal Democratic minority.

Though the former Kirkland & Ellis partner faced tough questions—including from one Republican senator in particular—there’s no clear indication that he won’t be confirmed to a court that hears important financial cases and could resolve potential disputes stemming from reported investigation into the president’s private business there. Most federal cases go no further than the appeals courts, which are the last stop before the Supreme Court.

Also on Wednesday, the latest batch of confirmations brought the total number of federal judges appointed by Trump to 150. That includes over 40 on the appeals courts and Trump’s two Supreme Court appointments, Neil Gorsuch and Brett Kavanaugh. The president is fulfilling a campaign pledge to remake the judiciary with young conservatives like the 40-year-old Menashi.

Heading into the hearing, Menashi, who clerked for conservative Justice Samuel Alito, faced criticism from progressives over his past writings on race, abortion, sexual assault, and other issues. The group Alliance for Justice critiqued his “long written record opposing and undermining equity for communities of color, women, and LGBTQ Americans.”

The nominee on Wednesday tried to explain away some of those writings and said he abhorred discrimination.

Protesters chanted loudly outside of the hearing room in the Dirksen Senate Office Building as Menashi read his opening statement, recounting his family’s immigration to the U.S. as Jewish refugees fleeing persecution in Iraq. Sen. Richard Durbin (D-Il.) tried to segue from that narrative into questioning Menashi’s thoughts on the administration’s moves to limit immigration, but the nominee declined to answer, at least to Durbin’s satisfaction.

Yet it wasn’t just pressure at the hearing from Democratic senators like Feinstein and Durbin. Following Menashi’s back-and-forth with Democrats over his lawyering in the Trump White House, Republican Judiciary Chairman Lindsey Graham of South Carolina suggested Menashi might need to be more detailed in his answers before the committee.

And Sen. John Kennedy (R-La.) wasn’t satisfied with the nominee’s responses to hypothetical legal questions.

As his turn at quizzing Menashi wound down, Kennedy conceded that the special assistant to the president and senior associate White House counsel is a “smart guy.” But the Louisiana lawmaker said he wished the nominee was “more forthcoming.”

“This isn’t supposed to be a game,” the senator said.

But Menashi still seems headed for confirmation in the Republican-controlled Senate, despite any speed-bumps he might have hit at the hearing.

“I think that Senator Kennedy will ultimately vote for Steven Menashi,” said Mike Davis, former chief counsel for nominations to Sen. Chuck Grassley. The Iowa Republican chaired the committee before Graham.

Menashi “will ultimately prevail in this fight because he’s a very highly qualified nominee, as evidenced by the ABA’s well-qualified rating, which is supposedly the Democrats’ gold standard,” said Davis, founder and president of the Article III Project, a group established to fight to confirm Trump judicial nominees.

Menashi received the American Bar Association’s highest rating of “well-qualified” from a majority of the association’s committee that considered the matter. A minority deemed him “qualified.” He previously served in the Department of Education under Betsy DeVos, which also prompted critical Democratic questions at the hearing. Before that, he was at Kirkland & Ellis in New York.

As with Kennedy, Davis doesn’t think Graham will be an impediment to confirmation, either, despite any pressure Graham may have put on Menashi at the hearing.

“I think at the end of the day that Senator Graham is going to step forward and show his leadership, the leadership that he has shown with Justice Kavanaugh and his very strong leadership that he has shown all year as the new chairman of the Senate Judiciary committee,” Davis said. “And ultimately, Senator Graham is going to be the leader who gets Steven Menashi confirmed.”

University of Richmond School of Law Professor Carl Tobias, an expert on the federal judiciary, likewise said after the hearing that he thinks Menashi will be confirmed. Though Graham and Kennedy “seemed unhappy that he would not say very much” about his White House work, “I doubt that would provoke a no vote for either,” Tobias said.

Sen. Mike Lee, the Utah Republican and Judiciary Committee member who introduced Menashi at the hearing, touted his sterling credentials and defended his relative reluctance in the face of an inquisitive committee, as did Sen. Ted Cruz (R-Tx.).

If confirmed, Menashi would come to occupy the seat once held by former Supreme Court Justice and trailblazing civil rights lawyer Thurgood Marshall, Feinstein said. The Second Circuit courthouse in lower Manhattan is named for Marshall.

The White House announced Trump’s plan to nominate Menashi to the appeals court less than a month ago. The turnaround for the hearing was quick.

Another notable aspect of the hearing is that Menashi directly answered a question that not every Trump judicial nominee has: whether the Supreme Court’s landmark school desegregation case, Brown v. Board of Education—which Marshall argued at the high court—was correctly decided. Menashi said it was.

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

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