The nominee would only say that he gave legal advice to senior policy advisers on a number of issues, including immigration, but would not say to whom or on what specific policies he advised the administration.
At one point, Senate Judiciary Committee Chairman Lindsey O. Graham (R-S.C.) expressed his frustration with Menashi’s guardedness around his work at the White House.
“That’s not an unfair question. Did you work on the subject matter?” Graham said. “I’m not asking you to talk about what you did in terms of legal advice, I’m asking did you work on the topic.”
After a back-and-forth during which Menashi wouldn’t offer any specifics on his work or his personal beliefs, Sen. Richard J. Durbin (D-Ill.) told him it was “inappropriate” for him to seek the position if he was going to “stonewall” the committee.
“We’re trying to understand if you have any values that are consistent with the awesome responsibilities you are seeking, and I’m hoping you would show some candor and honesty,” Durbin said.
Menashi, 40, a former law clerk for Supreme Court Justice Samuel A. Alito Jr., was also criticized by Sen. John Neely Kennedy (R-La.) for not providing, in the senator’s view, a thorough answer to a hypothetical question about violent words on social media leading to gun violence.
“Counsel, you’re a really smart guy, but I wish you’d be more forthcoming,” Kennedy told Menashi. “This isn’t supposed to be a game; we’re supposed to try to understand not how you’re going to rule but how you’re going to think.”
Menashi is a nominee to the U.S. Court of Appeals for the 2nd Circuit in New York, though he does not have the support of the state’s two Democratic senators, as used to be customary. Senate Minority Leader Charles E. Schumer and Sen. Kirsten Gillibrand said in a joint statement that Menashi’s “views are far outside the judicial mainstream and completely out of step with the overwhelming majority of New Yorkers.”
Menashi was also questioned by Democrats on his work as acting general counsel in the Education Department under Secretary Betsy DeVos as well as prior controversial writings, including a 2010 law journal article defending “ethnonationalism” as a defense for Israel being a “Jewish state.”
When asked about that particular piece, Menashi said that he was only trying to point out that many “liberal democracies have a linguistic or ethnic basis,” making Israel not out of the ordinary.
Menashi has also been criticized for other controversial writings such as accusing gay rights activists of exploiting the murder of Matthew Shepard and criticizing “Take Back the Night” marches that raise awareness about sexual assault on college campuses.
Protesters stood outside the hearing room yelling, “Title IX is on the line.” Trump nominated Menashi on Monday, and the Senate Judiciary panel scheduled his confirmation hearing for two days later.
Senate Majority Leader Mitch McConnell (R-Ky.) has been criticized by Democrats for abandoning Senate practices to quickly shepherd nominees through the confirmation process. On Wednesday, the Senate confirmed Trump’s 150th judge. Trump has now appointed 105 district judges, 43 circuit court judges and two Supreme Court justices.