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The controversy over “ethnonationalism” and a Trump judicial nominee, explained

Steven Menashi’s transformation from campus troll to federal appellate judge is almost complete.

Steven Menashi, nominee to be a circuit judge on the Court of Appeals for the Second Circuit, testifies during his confirmation hearing on September 11, 2019.
Tom Williams/CQ-Roll Call via Getty Images
Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.

Steven Menashi, President Donald Trump’s judicial nominee for the United States Court of Appeals for the Second Circuit, began his writing career at the Dartmouth Review, the campus conservative publication that incubated professional trolls such as Laura Ingraham and Dinesh D’Souza. Menashi used this platform to denounce LGBTQ rights groups, mock “Take Back The Night” marches protesting campus rape, and defend a fraternity that threw a “ghetto party.”

He later became a law professor who may want to dismantle much of the government, a top aide to Education Secretary Betsy DeVos, and a lawyer in the Trump White House. And he’s about to add a new line to his resume. On Thursday, the Senate Judiciary Committee voted along party lines to advance Menashi’s nomination to a powerful federal court to the Senate floor. He’s now just one vote away from a seat on the United States Court of Appeals for the Second Circuit.

Menashi is, to put it bluntly, the kind of person a president nominates if their goal is to “own the libs.” Though he possesses many of the conventional qualifications typically seen in judicial nominees, including a clerkship to Justice Samuel Alito, his history as a conservative provocateur drew swift denunciations from liberal groups that focus on judicial nominations.

The Committee vote to advance Menashi’s nomination, moreover, came just one day after the New York Times reported that Menashi was a central figure in an effort by the Education Department that sought to reduce the amount of loan forgiveness given to victims of a chain of predatory for-profit colleges. A federal court halted the Education Department’s scheme last year, holding that the department violated a federal law governing the way federal agencies handle private records.

And yet despite — or perhaps, because of — Menashi’s controversial record, confirming him appears to be a very high priority for Senate Republicans. The Judiciary Committee raced to give him a confirmation hearing just two days after Trump formally nominated him for the judgeship. Nominees typically wait weeks or even months for a hearing, in no small part because senators need time to review the nominee’s record.

Menashi almost certainly received special treatment to, in HuffPost’s Jennifer Bendery’s words, help “stave off prolonged protests by progressive groups that have already signaled strong opposition to Menashi.” Indeed, protesters briefly disrupted Menashi’s hearing during his opening statement.

There is both a scholarly case against Menashi and a more widely accessible case against his nomination. The latter focuses on opinion pieces he wrote as a college student and then later as a graduate. In them, he denounced college anti-rape activists as “campus gynocentrists,” accused an LGBTQ civil rights group of “incessantly exploit[ing] the slaying of Mathew Shepard for both financial and political benefit,” and likened the practice of gathering racial data on university students to the Nazi “Nuremberg laws.

In a 1998 New York Times op-ed, which reads like a liberal college student’s bad parody of something a conservative might write, Menashi attacked need-based financial aid at colleges and universities — claiming that it “punishes families with the foresight and prudence to save for their children’s education.”

The scholarly case against Menashi is more nuanced. It rests on a pair a law review articles that can fairly be read to indicate that Menashi has deeply radical views, but that also do not provide conclusive evidence of those views. In one article, he appears to defend “ethnonationalism.” In the other, he touts court decisions that could form the tip of a spear into the heart of progressive economic regulation.

Menashi on ethnonationalism

The most debated aspect of Menashi’s record, just in terms of the amount of heat its generated among opinion journalists and pundits, is a 2010 academic article he wrote titled “Ethnonationalism and Liberal Democracy.”

That article was flagged by MSNBC’s Rachel Maddow last month, when she broadcast a lengthy segment claiming that Menashi argued that “democracy can’t work unless the country is defined by a unifying race.”

That characterization inflamed Menashi’s defenders. The Volokh Conspiracy’s David Bernstein argued that, by attacking Menashi, Maddow revealed herself as the real racist. Meanwhile, the Wall Street Journal’s editorial board offered a more substantive reply to Maddow, claiming that the article is a relatively benign defense of “Israel as a liberal democracy and Jewish state” — and claiming that any senator who accepts her argument drifts too far towards the “anti-Israel fringe.”

The Wall Street Journal is correct that the lion’s share of Menashi’s article is an academic defense of Israel against scholars who “argue that liberal democracy precludes the state from adopting a particularistic ethnonational identity.” Arraying himself against scholars who argue, in the words of one of Menashi’s antagonists, that Israel “remains distinctive among democratic states in its resort to ethnoreligious criteria with which to denominate and rank its citizens,” Menashi spends most of his article listing examples of other nations that also give favorable treatment to persons with a particular ethnonational identity.

To the extent that Menashi seeks to prove that many nations have a thread of ethnonationalism woven into their legal tapestry, his article is persuasive. He lists a wide array of laws — a Greek law that “grants automatic citizenship to ‘persons of Greek origin’ who volunteer for military service,” an Irish law creating a special process allowing persons “of Irish descent or Irish associations” to gain citizenship, and so forth — that give some degree of favorable treatment to people who can trace their family’s origins back to that nation.

Near the end of his article, however, Menashi diverges from his largely descriptive effort to normalize Israel, and suggests that ethnic diversity is itself harmful. “Social scientists have found that greater ethnic heterogeneity is associated with lower social trust,” he writes. “Ethnically heterogeneous societies exhibit less political and civic engagement, less effective governing institutions, and fewer public goods.”

“Surely,” he concludes with a flourish, “it does not serve the cause of liberal democracy to ignore this reality.”

Menashi’s article does not lay out a policy agenda to deal with this “reality.” Should the government teach citizens about diverse cultures so that they are more accepting? Does Menashi agree with University of Pennsylvania law professor Amy Wax that “our country will be better off with more whites and fewer nonwhites?

The full answers to these questions cannot be found in Menashi’s ethnonationalism article. Certainly the article, at the very least, suggests that Menashi is much more likely than the typical judge to be sympathetic to policies that seek to make the United States more homogeneous. That said, at his confirmation hearing, he did deny that the views expressed in the article shape his understanding of American law. The United States, he claimed at the hearing, is “not one of those countries” that is based on ethnic or linguistic “tradition.

Menashi vs. the 20th century

Like Menashi’s ethnonationalism piece, a 2014 article he cowrote with his former boss, Judge Douglas Ginsburg, also walks right up to the edge of embracing a deeply radical ideology without quite taking the final step into the abyss. So far, this second article has received less attention than the first — although it is discussed in an opposition research memo released by the liberal Alliance for Justice.

The article is styled as a review of a book by law professor Richard Epstein, a staunch libertarian known for his burn-it-down approach to government. The meat of the article trumpets a handful of lower court decisions that question the longstanding consensus that courts should not interfere with economic regulation absent an explicit constitutional command to do so. That consensus emerged in response to an era of conservative dominance that legal scholars refer to as the Lochner Era.

Until very recently, the Supreme Court’s 1905 opinion in Lochner v. New York was almost universally denounced as anti-canon — that is, it is was taught in law schools as an example of how judges should never, ever behave. Most scholars and judges still believe that Lochner is a cursed decision, although a libertarian insurgency now seeks to normalize it.

Lochner struck down a New York law providing that bakery workers could only be required to work 60 hours per week (at the time, bakery workers were typically paid by the day or by the week). To reach this result, the Court fabricated a “right to contract,” and claimed that the workers’ rights were violated by the New York law because it took away their “right” to enter into labor contracts that paid them very low wages to work very long hours. Later Supreme Court decisions used similar reasoning to invalidate minimum wage laws, laws protecting the right to unionize, and other workplace protections.

But the Lochner era wouldn’t last — the Supreme Court abandoned Lochner in 1937.

One consequence of Lochner’s fall is that the Supreme Court recognized that it should not be in the business of invalidating economic regulations where there isn’t a clear textual hook in the Constitution that justifies such a decision. Lochner claimed that the “right to contract” was implicit in the 14th Amendment’s vague command that no one may be denied “liberty” without “due process of law.”

But the justices concluded in a seminal 1955 opinion that “the day is gone when this Court uses the due process clause of the 14th Amendment to strike down state laws, regulatory of business and industrial conditions because they may be unwise, improvident, or out of harmony with a particular school of thought.”

Nevertheless, in an article titled “Rational Basis With Economic Bite,” Menashi and Ginsburg suggest that the courts should use the due process clause to strike down economic regulations because judges deem them to out of harmony with a particular libertarian school of thought.

The bulk of this article speaks favorably about a handful of lower court decisions invalidating laws that were allegedly intended to protect “one economic interest group from competition by another.” One such law prohibited anyone who isn’t a state-licensed funeral director from selling caskets. Another required pest control workers who captured and removed live mice, rats, or pigeons to obtain a certain license.

To be clear, many of these licensure laws are very bad policy and deserve to be repealed. As the Obama White House concluded in a 2015 report, “the current licensing regime in the United States ... creates substantial costs, and often the requirements for obtaining a license are not in sync with the skills needed for the job.”

But, as the Supreme Court has said, it’s not the job of judges to repeal laws simply because they are unwise. There is no provision of the Constitution that explicitly bans legislation that restricts competition, and the lower-court licensure decisions Ginsburg and Menashi highlighted are a break with the post-Lochner consensus that courts cannot be trusted to police economic regulations and determine which ones cause more harm than good.

Menashi and Ginsburg deny in their article that these early judicial incursions into economic policymaking will lead back to Lochner — although many leading libertarian advocates, scholars, and judges hope that they will. But Menashi and Ginsburg do suggest that judges should “determine the actual purpose” of economic regulations and strike them down if the judges deem the real purpose of a law to be “protectionist.”

That may sound anodyne, but Lochner’s modern-day defenders have proved masterful at spinning ordinary legislation as protectionist. A common myth touted by economically libertarian-leaning writers such as the Washington Post’s George Will, for example, is that the maximum hours law at issue in Lochner was itself an example of “rent-seeking by large, unionized bakeries and their unions” who wanted to “crush their small, family-owned, nonunionized competitors that depended on flexible work schedules.”

This myth persists among Lochner’s supporters despite the fact that it has little — if any — basis in evidence. As the political scientist Paul Kens, a leading scholar of the Lochner opinion, writes, the revisionist view of Lochner is “not based on primary sources” and “neither the newspapers of the time, nor personal accounts, nor legislative journals indicate that any large or powerful business was involved in passing this legislation.”

The point of this discussion about Lochner and the effort to revive it is not that Menashi endorses that effort. Rather, the point is that the article he wrote with Ginsburg embraces nearly all the premises of the Lochnerians without explicitly reaching their conclusion. It is evidence that he supports a deeply radical agenda — one that could dismantle much of the New Deal and the Great Society — but not conclusive proof that he does so.

If senators had more time to prepare for Menashi’s hearing, perhaps they could have probed deeper into the nominee’s views and answered the many questions raised by Menashi’s writings. As it is, however, we are left with a record that hints at great radicalism but that still offers Menashi plausible deniability.

The answers to most of the questions raised by Menashi’s record, in other words, are likely to come once he has a lifetime appointment to the federal bench.

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