What would you think of a bartender who has never mixed a drink, or a chef who has never cooked a meal? Or how about a judge who has never tried a case? All pretty unqualified for their jobs, wouldn’t you say? Oh wait … or how about a president who has never read the Constitution, who has lied, cheated and stolen, and who has never held a government position? Seems we’re on a roll here, folks!
But, my point today is the third one … a judge who has never tried a case. That would be Judge Steven Menashi, whom the Senate just confirmed to a lifetime appointment on the 2nd Circuit Court of Appeals. Let’s look at a summary of Menashi’s experience …
- In 2001, Menashi earned a Bachelor of Arts, magna cum laude, from Dartmouth College.
- He then worked at the Hoover Institute for three years as a public affairs fellow and an associate editor of the institute’s Policy Review.
- From 2004 to 2005 he was an editorial writer for The New York Sun.
- In 2008, he graduated in 2008 with a Juris Doctor from Stanford Law School.
- He served as a law clerk to Judge Douglas H. Ginsburg of the U.S. Court of Appeals for the D.C. Circuit during the 2008–2009 term, and to Associate Justice Samuel Alito of the Supreme Court of the United States during the 2010–2011 term.
- From 2011 to 2016, Menashi worked in the New York City office of Kirkland & Ellis, where he became a partner.
- From 2016 to 2017, Menashi was an assistant professor of law at George Mason University’s Antonin Scalia Law School.
- In September 2018, Menashi moved to the White House to become a Special Assistant to the President and Associate Counsel to the President.
Th-th-that’s it, folks … the sum total of Mr. Menashi’s career in eight short bullet points. Never sat on a judicial bench, never tried a case … and now he’s a lifetime, high-ranking judge. Well, I think I’ll just run for U.S. Senator next year … I’m as qualified for that as Menashi is for a judgeship!
But this is an interesting appointment and sped-up confirmation folks. You see, his confirmation hearing was on September 11th, more than two months ago, and there were objections from both sides of the aisle, in part because he refused to answer their questions regarding the role he played in shaping the Trump administration’s immigration policies. Another point of contention was about an article he had written in the University of Pennsylvania Journal of International Law about ethnonationalism and Israel.
In addition, Menashi has a history of speaking against women’s rights, as well as LGBT rights. And, when he was sent a letter by the Senate Judiciary Committee asking about his knowledge of Trump’s July 25 phone call with Ukrainian President Volodymyr Zelensky, Menashi refused to respond.
It is interesting, as well, to note that on Wednesday, the same day the Senate invoked cloture, putting an end to further debate about Menashi’s nomination and forcing a vote, a federal appeals court ruled against Trump’s claim that his financial records should remain closed, upholding last week’s ruling by the very court Menashi has been confirmed to, the 2nd Circuit Court of Appeals. Perhaps if Menashi’s confirmation had not been held up for two months, he would have already been on the bench last Monday, November 4th, and Trump might well have won his case. Think on that one for just a minute. As it is, he is now appealing to the U.S. Supreme Court, begging them to ‘shield’ his tax returns being released. In other words, begging the Court to affirm that he is, in fact, above the law of the land.
Trump’s argument was that U.S. presidents are immune from investigation while in office. A district judge and a panel of the U.S. Court of Appeals for the 2nd Circuit ruled against him, saying that the subpoena was proper and that the president’s longtime accounting firm, Mazars USA, must comply. If there is any integrity left on the Supreme Court, they will rule in favour of Manhattan District Attorney Cyrus Vance and against Trump’s desire for secrecy and dishonesty. Don’t hold your breath.
Another seemingly unqualified nominee, Lawrence VanDyke, who Trump nominated to the United States Court of Appeals for the Ninth Circuit. His confirmation hearing was held on October 30th, and the Senate is expected to decide on his nomination on November 21st.
A couple of things go against Mr. VanDyke … he has taken an anti-LGBT stance in the past, and initially refused to state that he could and would be fair to LGBT people who came before him in the courtroom. The second thing is that the American Bar Association (ABA) has rated him “not qualified”. As there is some dispute about the fairness of the ABA rating, and I haven’t as yet had time to do sufficient research, I will withhold my judgment, but just warn that this is one we should keep an eye on.
Since his inauguration, Trump has been stacking the courts with ultra-conservative candidates. As of November 14, 2019, the United States Senate has confirmed 162 Article III judges nominated by President Trump, including 2 Associate Justices of the Supreme Court of the United States, 46 judges for the United States Courts of Appeals, 112 judges for the United States District Courts, and 2 judges for the United States Court of International Trade. Only a relative handful have been rejected by the Senate, or are on hold pending further consideration.
The U.S. Constitution calls for a separation of powers between the three branches of federal government, it calls for a system of checks and balances to ensure no one branch oversteps its bounds, and it calls for the Judiciary Branch to be non-partisan and independent of the other two branches. More and more, that independence seems to be slipping away, just as do the separation of powers and the checks and balances. There are enough boot-lickers in both branches of Congress to ensure that almost no legislation is enacted … and now, it appears there may be enough in the judiciary to ultimately ensure that Trump will, indeed, always be above the law.
Funny, isn’t it, how Mitch McConnell blocked so many of President Obama’s nominees, the most notable being the nomination of Merrick Garland to fill the shoes of the late Antonin Scalia? Ah well, I guess if you’re rich and powerful, you don’t need to be fair and just, but can make your own rules, eh?