Steven Menashi, President Donald Trump’s nominee for the US Circuit Court of Appeals Second Circuit, told senators that he regrets the “lack of balance and provocative tone” in some of his past writings.
CNN’s KFile first reported in August that Menashi had a history of denouncing feminists, diversity efforts and gay rights groups in articles he wrote for Dartmouth’s conservative student newspaper and elsewhere in the late 1990s and early 2000s. The writings drew questions during his confirmation hearing on September 11 and in follow-up questions from Democratic senators.
Menashi, a White House lawyer, sought to clarify some of his past views in responses to written questions from US senators he submitted on September 18 and that were made public this week.
“As your question recognizes, over the course of my life I have written frequently,” Menashi wrote. “I have expressed arguments in good faith and relying upon the best evidence available to me at the time. I understand that some assertions may, in the light of better evidence, have been inaccurate. In addition, my views may have changed since I began writing decades ago. That is the natural consequence of engaging in public debate and attempting to think through contested issues. Over time, moreover; my tone has matured; I would not express myself the same way today as I did in college. Yet I have always tried to participate in the robust exchange of ideas in good faith.”
“I also understand that the role of an editorial writer, which was my job prior to law school, is different than that of a lawyer or of a judge,” he added. “An editorial writer engages in political debate. A judge refrains from politics and puts his or her personal views aside to decide cases based on what the law requires.”
Regret over past writings
Menashi said in a response to a question from California Democratic Sen. Dianne Feinstein that his criticism of the Human Rights Campaign was “unfair.” In a March 2001 editorial in The Dartmouth Review, Menashi accused the group of hypocrisy for not speaking out on crimes committed by gay men, only crimes committed against them, adding that the group had “incessantly exploited the slaying of Matthew Shepard for both financial and political benefit.”
“In retrospect, the criticism of the Human Rights Campaign was unfair,” Menashi said. “The murder of Matthew Shepard was a horrifying crime, and it is appropriate for the Human Rights Campaign to call special attention to a crime motivated by hatred. I regret the suggestion that it was improper.”
In response to a question from Delaware Democratic Sen. Chris Coons about a December 2002 book review, where Menashi defended then-Italian Prime Minister Silvio Berlusconi for stating “the obvious” when he wrote of “the superiority of Western civilization over Islam,” Menashi said he did not mean to suggest any group was “superior to any other.”
“Both the review and the book state clearly that the feature of western countries to which the statement referred was ‘respect for religious and political rights,‘“Menashi wrote. “The statement therefore endorsed the ability of western democracies to provide strong protections for religious and political rights. The book elaborates that the statement ‘has nothing whatever to do with racism, or the elevation of one segment of humanity over another.’ I continue to believe that the freedoms guaranteed by the First Amendment are important and sacred. I do not believe that any group of people is superior to any other. The review did not intend to suggest otherwise.”
Menashi, in responding to a follow-up question from Feinstein, said he regretted if he implied in a college editorial that college applications listing race were similar to the Nuremberg Laws, which were created in 1935 to segregate Jews in Germany.
“As I stated at my hearing, some of the writing I did in college advanced the view that people should be treated as individuals rather than as members of groups,” Menashi wrote. “That was important tome because my family had suffered discrimination based on group status. The statement in the article was intended to say that people should be treated as individuals. To the extent that it suggests more than this, such as an actual substantive comparison, it did not reflect my views even then, and I regret that implication.”
In several editorials for the Dartmouth Review, Menashi defended a fraternity that threw an event labeled as a “ghetto party,” which was criticized at the time as racist, on free speech grounds. Menashi said in response to a question that he defended the party on the grounds of free speech, but regretted if his writing had a “provocative tone” and did not take into account those hurt by such stereotypes.
“In college, I often defended free speech in campus debates, even speech that was offensive. In retrospect, I see that in many cases my writing expressed only one side of the debate, defending speech without fully acknowledging the valid concerns of those who might be hurt by offensive speech,” he wrote. “I am sensitive to those concerns and I wish my college writing had more clearly expressed them. In particular, I understand it is hurtful to play on stereotypes and that doing so leads to real problems of exclusion. I continue generally to believe that free speech should be protected and that charges of racism are serious and should not be leveled lightly. But I do regret the lack of balance and provocative tone of some of my college writings. “
Views on abortion
Feinstein asked Menashi to explain how Roe v. Wade represents “the codification of ‘the radical abortion rights advocated by campus feminists?’”
Menashi noted that the article was written before he graduated college or attended law school, and that his position on abortion “did not reflect his legal opinion on Roe v. Wade.”
“This article was written before I graduated from college or attended law school and it did not reflect a legal opinion about Roe v. Wade…[it] is a binding precedent of the Supreme Court, and I would faithfully apply it should I be confirmed,” he wrote in his response.
Menashi was also asked how he concluded Plan B was an abortifacient, referring to his 2001 editorial that said “the morning-after pill may, in fact, act as a contraceptive by inhibiting or delaying ovulation before fertilization has occurred. But there is a third case…in which the emergency contraceptive prevents an already fertilized egg from implanting in the uterus.” Menashi then explained that some, including the conservative Family Research Council, categorized the morning-after pills as “abortifacients.”
Menashi claimed his writing on the morning-after pill did not reach the conclusion that the morning after pill was an abortifacient but that the article “explained there was a ‘conflict over definition,’ depending on a student’s individual beliefs,” noting a Supreme Court case ruling supported this idea.
In several questions, Democratic senators asked Menashi to elaborate on the provocative rhetoric he used to describe feminists and anti-rape activists.
Menashi conceded that he used “provocative terminology” when he referred to “campus gynocentrists” and that this terminology contributed to “the overwrought nature of the writing.”
Feinstein also asked Menashi to defend an article he wrote in which he said “Take Back the Night” marches, led by anti-rape activists on college campuses, charged male students “with complicity in rape and sexual violence.”
Menashi called his work “overstated and overwrought” and that the purpose of the editorial was to “say that it is improper to make assumptions about people on the basis of sex and that people should be held accountable only for their individual conduct.” He also noted that the marches are “legitimate” and call attention to serious crimes such as rape and sexual violence.