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The Greatness Agenda

In Defense of Steven Menashi

The Left’s attacks on President Trump’s judicial nominees are getting more and more ludicrous by the week.

- August 31st, 2019
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The Left is living with a whole lot of buyer’s remorse when it comes to the judiciary. After nuking the judicial filibuster in 2013, former Senate Majority Leader Harry Reid (D-Nev.) unwittingly set up what has become the Left’s worst nightmare: federal courts loaded with President Trump’s judicial picks.

Not only will Trump’s judicial nominees, if confirmed, serve for life, but their influence will also be substantial. After all, Congress mostly has given up on legislating, and now allows most federal policy to be decided by the courts or imparted at the whim of unelected agency bureaucrats.

This explains why the Left has worked itself into an anguished froth over Trump’s judicial nominees. Their attacks have become more and more ludicrous.

First, they tried religion. Trump nominees Russ Vought, Amy Coney Barrett, and Brian Buescher were all painted as religious zealots for holding traditional evangelical and Catholic beliefs.

Never mind that the Constitution specifically prohibits discrimination against political office holders on the basis of religious belief. Senate Democrats don’t care.

Russ Vought believes that Jesus is the one, true son of God, so Senator Bernie Sanders (D-Vt.) blasted him as an “Islamophobe.” Amy Coney Barrett is a practicing Catholic with seven children, leading Senator Dianne Feinstein (D-Calif.) to speculate that the “dogma lives [too] loudly” in her to permit her to be an impartial jurist.

Brian Buescher belongs to the Knights of Columbus, a Catholic service group, so Senators Mazie Hirono (D-Hawaii) and Kamala Harris (D-Calif.) assumed that meant he could not rule fairly on cases involving abortion and gay rights. The list goes on.

Their latest tactic is a smear campaign against a Jewish nominee of Iraqi descent. And the pile-on is so intentionally distorted that you can almost taste their desperation.

The attacks on Menashi are driven by a transparently left-leaning media determined to prove their own narrative that everything Trump does is driven by race, and by a desire to slow the tide of the judicial tsunami that Democrats themselves unleashed. Senators should not be swayed by these obvious smears.

Steven Menashi is the president’s latest nominee to the Second U.S. Circuit Court of Appeals. He has a sterling academic record which includes clerkships for two federal judges, numerous Supreme Court briefs, employment at preeminent law firms, a role as a law professor, and, currently, a job as acting general counsel for the Department of Education, where he oversees more than 100 staff.

But the Left isn’t interested in his credentials. Rather, they’re interested in an article he published in the University of Pennsylvania Journal of International Law in 2010, called “Ethnonationalism and Liberal Democracy.”

In it, Menashi puts forward a thoughtful argument that ethnic diversity is not, in and of itself. a precondition for a thriving and democratic state. He takes issue primarily with the argument that Israel’s “right of return” immigration law for Jews is illegitimate because it excludes other groups. Israel, he claims, can be at once a liberal democracy, as well as primarily a Jewish state.

To bolster is argument, Menashi points out other countries that prioritize the return of their displaced nationals. Germany, Greece, Poland, Bulgaria, Finland, and a host of other nations all have laws similar to Israel’s, and countries like India and Ireland take a special interest in their ethnic diasporas without diminishing their democracies.

This context, however, obscures what the Left wants to see, which is that Menashi must be a racist. The fact that Menashi argued for the Israel’s “right of return” law was enough to make MSNBC host Rachel Maddow accuse him of making “a high-brow argument for racial purity.” Worse, she claimed, Menashi argues “how . . . democracy can’t work unless a country is defined by a unifying race.”

 An Ethnostate of Ideas, Not of Race

Maddow, it seems, is uneducated about the difference between “national identity” and “racial purity.”

Far from being an argument about race purity, Menashi points out the extreme ethnic diversity of Israeli Jews. They come from all over the world, including “Argentina, Ethiopia, Germany, Morocco, Russia, and Yemen.”

What unites them is not a shared race, but a shared identity—that is, common values and norms. Ethnonationalism is simply what makes a population regard itself as a nation, not merely a conglomeration of people living in the same space.

This is not hard to discern from Menashi’s article. At least, it’s not if you read beyond the title.

He even lays it out explicitly, citing the liberal philosopher John Stuart Mill. What matters about a national identity is that people are “united among themselves by common sympathies which do not exist between them and any others, which make them cooperate with each other more willingly than with other people, [and] desire to be under the same government.”

Sounds oddly familiar. Perhaps a bit like the United States, the biggest melting pot in the world, right?

Yet Maddow is utterly convinced that Menashi, whose grandfather came to the United States after fleeing Ukraine, is an irredeemable racist. Alrighty, then!

Not to be outdone, CNN released a smear piece citing Menashi’s writings as an undergraduate at Dartmouth, where he was the editor of the Dartmouth Review. “Trump court pick denounced feminists, gay-rights groups and diversity efforts in 1990s, 2000s editorials,” heaved the headline.

Among his sundry sins is his assertion that the Human Rights Campaign, the largest LGBTQ advocacy group in the United States, was “exploiting the brutal murder of a gay student for political ends.”

Except, CNN left out some key facts. A Wall Street Journal editorial provides a bit of helpful context:

CNN doesn’t mention that Mr. Menashi was building on the argument of Andrew Sullivan, the gay-marriage advocate, who had recently argued in the New Republic that the Human Rights Campaign was emphasizing the Matthew Shepard murder in its campaign for a federal hate-crimes law while ignoring a comparable slaying by two gay men in 1999. Mr. Menashi said identity politics leads to a tendency to place a differential value on human lives that should be resisted. He was right.

CNN also accuses Menashi of attacking multiculturalism, defending the rights of students to host a “ghetto” themed party, and warning against an anti-rape culture that was dangerously close to evolving into an outright anti-male movement.

A review of Menashi’s commentary in these examples, however, reveals not the knuckle-dragging bigot that CNN hopes to present, but rather a man making clear-eyed, thoughtful, and persuasive arguments—with a surprising prescience.

In an age when the New York Times is quite literally rewriting the history of America’s Founding, where the #MeToo movement has compelled men to stop professionally mentoring young women, and when speech some deem offensive is violently attacked, Menashi’s warnings resonate, and make the case that he will be a mature, deliberate, and introspective jurist.

The attacks on Menashi are driven by a transparently left-leaning media determined to prove their own narrative that everything Trump does is driven by race, and by a desire to slow the tide of the judicial tsunami that Democrats themselves unleashed. Senators should not be swayed by these obvious smears.

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