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Trump Flips New York-Based 2nd Circuit as Menashi Confirmed (2)

Nov. 14, 2019, 7:31 PMUpdated: Nov. 14, 2019, 11:32 PM

White House lawyer Steven Menashi was confirmed Nov. 14 to the New York-based U.S. Court of Appeals for the Second Circuit, giving that court a majority of judges appointed by Republican presidents.

The Republican-led Senate cleared the former Kirkland & Ellis partner and Samuel Alito clerk for the lifetime appointment, 51 to 41.

Menashi becomes the 46th circuit judge appointed by President Donald Trump, who has made good on his campaign pledge to reshape the federal courts with younger conservatives.

Menashi, 40, moved swiftly through the Senate although the confirmation process was one of the more contentious for a Trump judicial appointee.

Democrats sharply criticized his past writings on race, especially, although he said he rejects discrimination. They also raised objections to his work as a White House senior legal counsel and as a top adviser to Education Secretary Betsy DeVos.

They and some Republicans were unhappy with his refusal to discuss in basic detail his role in advising senior Trump White House officials on immigration policy, specifically an initiative that separated immigrant families at the Southern Border.

Democrats also tied him to Education Department policy changes thrown out by a federal judge that weakened an Obama-era program aimed at protecting student borrowers from predatory for-profit college lending practices.

Some Republicans pushed back on Menashi criticism, citing his D.C. Circuit and Supreme Court clerkships, his partnership in one of the more prestigious law firms, and his work as a litigator.

Republican Susan Collins of Maine was the only lawmaker to cross party lines, joining all of the Democrats in voting no. She’s a moderate and Democrats have highlighted her key vote to confirm Brett Kavanaugh to the Supreme Court as a reason voters should reject her at the polls in 2020.

Flipping Circuits

Menashi’s confirmation, coupled with that of William Nardini on Nov. 7, tips the Second Circuit to a majority of Republican-appointed judges. That court is centered in the nation’s financial capital, and could wind up addressing more disputes around Trump controversies.

On the same day Menashi was confirmed, Trump challenged a Second Circuit decision over access to his tax records at the U.S. Sprememe Court.

With Menashi, Republicans have now appointed seven of the court’s 13 members. Trump has seated five, while George W. Bush appointed two. Bill Clinton and Barack Obama each named three judges to the Second Circuit.

“The Ninth Circuit and the Second Circuit both have been places that you might want to file a case if you thought you were going to get a liberal judge who was just going to give you what you wanted in those cases,” Carrie Severino, chief counsel at the conservative-leaning Judicial Crisis Network. “That’s not the situation anymore in the Second Circuit.”

Judges pledge independence, but additional conservative appointees, for instance, could moderate majority opinions or write dissents that may prompt review from the Supreme Court.

Also, it’s more likely that randomly drawn en banc sittings—a larger group of judges that rehears some cases decided by a three-judge panel of the same court—will be majority Republican. En banc is the last possible stop before the Supreme Court.

Trump previously flipped the Third Circuit, which covers Pennsylvania, New Jersey, Delaware, and the Virgin Islands, and is closing in on doing the same for the California-based Ninth Circuit. He has openly criticized rulings from Ninth Circuit district judges that have clashed with his policies. Virtually all federal appeals end at circuit courts.

(Adds new paragraph 11 on Trump Supreme Court challenge of Second Circuit decision on his tax records.)

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

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