The Media’s Latest Smear of a Trump Judicial Nominee

COMMENTARY Courts

The Media’s Latest Smear of a Trump Judicial Nominee

Aug 20th, 2019 3 min read
COMMENTARY BY
Thomas Jipping

Deputy Director, Center for Legal and Judicial Studies

Thomas is the Deputy Director of the Edwin Meese III Center for Legal and Judicial Studies and a Senior Legal Fellow.
Conflicts over judicial nominations, including Menashi’s, are about how judges should accomplish this task. SAUL LOEB / Contributor / Getty Images

Key Takeaways

The attacks begun on Menashi amount to nothing more than dishonest smears.

The brewing conflict over Menashi’s nomination, like so many others, is not about his qualifications, or really about him at all.

President Donald Trump nominated Menashi for the same reason his critics oppose him: Menashi will be an impartial, not a political, judge. 

Left-wing opponents of an impartial and independent judiciary have picked another target: appeals court nominee Steven Menashi. 

It’s one thing to be honest about a nominee’s record, but disagree about whether he belongs on the bench. The attacks begun on Menashi, however, amount to nothing more than dishonest smears.

Menashi, whose Jewish family came to the United States from Iran, received his law degree from Stanford before clerking first for U.S. Circuit Judge Douglas Ginsburg and then for Justice Samuel Alito. He became a partner at one of America’s premier law firms and has taught at two prestigious law schools. 

The brewing conflict over Menashi’s nomination, like so many others, is not about his qualifications, or really about him at all. It’s about the kind of judge he will be. 

Justice Clarence Thomas recently wrote that “[o]ur judicial task is modest: We interpret and apply written law to the facts of particular cases.” 

Conflicts over judicial nominations, including Menashi’s, are about how judges should accomplish this task. Should judges be impartial, taking the Constitution and statutes as written and applying them neutrally? Or should judges be political, manipulating what the Constitution and statutes mean and applying them to favor certain political interests?

President Donald Trump nominated Menashi for the same reason his critics oppose him: Menashi will be an impartial, not a political, judge. 

In 2009, Menashi reviewed a book by liberal law professor Cass Sunstein. The book’s title spoke volumes: “A Constitution of Many Minds: Why the Founding Document Doesn’t Mean What it Meant Before.” 

In his review, Menashi wrote that “living constitutionalists” like Sunstein “aim to establish not a ‘living’ but a zombie Constitution; they want to take the corpse of constitutional text and reanimate it with new principles in every generation. But this Constitution is at war with itself. … The living Constitution is always an unstable mix of living and dead elements, chosen according to the preference of the assembler.”

To the left, saying that the Constitution and statutes mean what they were intended to mean at the time they were enacted, and not what judges want them to mean today, is the unforgiveable sin. And they have Menashi in their sights. He had not even been nominated, for example, when MSNBC host Rachel Maddow launched a slanderous smear. 

Menashi wrote an article in 2010 making the case that Israel’s policy of favoring Jews for immigration is consistent with liberal democratic values such as equality. He showed how Israel was far from unique in taking this approach. 

Maddow, however, accused Menashi of making a “high-brow argument for racial purity” and arguing that “democracy can’t work unless the country is defined by a unifying race.”

No one who had actually read Menashi’s article could honestly describe it that way. Like other distortions of other judicial nominees’ records, Maddow’s false charge was ignorant, deliberate, or both. Neither, however, should be acceptable to anyone on either side of this debate.

If the left believes that the Constitution should mean whatever a federal judge wants it to mean, it should be honest and try to defend that position. 

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If it believes that any five members of the Supreme Court should be able to create, modify, or delete rights and liberties at will, it should fess up and make its case. 

If it believes that elections really don’t matter because unelected judges should have the last word on what our laws mean, it should have the decency to say so.

That radical position, however, is indefensible. It is the opposite of how America’s Founders designed our system of government in general, and the judiciary as part of that system in particular. So it instead concocts false claims and relies on the public’s acceptance of its smear.

Back in February 2001, only a few weeks after President George W. Bush took office, Senate Minority Leader Tom Daschle, D-S.D., vowed that Democrats would use “whatever means necessary” to fight judicial nominees they opposed. 

It seems like their allies in the liberal media are continuing the revolution.

This piece originally appeared in The Daily Signal