November 13, 2019

Feinstein Statement on Menashi Second Circuit Nomination

            Washington—Senate Judiciary Committee Ranking Member Dianne Feinstein (D-Calif.) released the following statement on Steven Menashi, President Trump’s nominee to the United States Court of Appeals for the Second Circuit:

            “I rise today in opposition to the nomination of Steven Menashi to the United States Court of Appeals for the Second Circuit.

            From 2017 to 2018, Mr. Menashi served as the acting general counsel of the Department of Education under Secretary Betsy DeVos. Mr. Menashi has stated that, in this role, he was “responsible for providing legal advice related to all aspects of the department's operations, including litigation, rulemaking, regulation, and enforcement.”

            Before Mr. Menashi joined the Department of Education, the department had found that thousands of students had been defrauded by for-profit colleges. The for-profit schools had lied to students about job prospects, graduation rates, and steered them into mountains of debt. The department had concluded that these students were entitled to relief from their student loan debt.

            But when Mr. Menashi arrived at the department, he took a different view. He wrote a memo – which has since been obtained by the New York Times – arguing against full debt relief for the students.

            Many of these students found themselves unable to work in the fields that they had pursued at the for-profit colleges, because the colleges had either suddenly closed or the degrees had proven to be worthless.

            Nonetheless, Mr. Menashi’s idea – which the department adopted – was to use the private Social Security earnings data of the defrauded students as a basis for limiting their relief.

            Even if you put aside the unfairness of Mr. Menashi’s plan, there was another problem: it was illegal.

            Six months after Mr. Menashi’s plan was implemented – and while Mr. Menashi was still at the department – a federal court ruled that using students’ private Social Security data violated the federal Privacy Act. The court ordered the department to stop using the students’ private information and to stop collecting on their student loans.

            Even after this federal court ruling, the department failed to comply. The department continued to illegally collect on the student loans of at least 16,000 defrauded students. The department garnished wages, seized tax refunds, and wiped out some students’ credit ratings.

            Less than three weeks ago, a federal court held Secretary Betsy DeVos in contempt of court and fined the department $100,000. The federal magistrate judge who issued the contempt order said, “[T]here have to be some consequences for the violation of my order 16,000 times.”

            Mr. Menashi should not be rewarded for providing such bad legal advice with a lifetime appointment to the federal bench.

            While at the department, Mr. Menashi also helped push new rules on campus sexual assault that the administration’s own analysis concluded would dramatically reduce the number of sexual assault investigations. Under these new rules, a student who is the survivor of sexual assault would be subject to cross-examination by their attacker’s representative at a live hearing.

            In 2018, Mr. Menashi joined the White House Counsel’s Office, where he has been a member of Stephen Miller’s White House Immigration Strategic Working Group.

            This working group has helped push a number of extreme anti-immigrant policies, including the White House’s policy of separating children from their families, a problem that still has not been fully remedied – despite a court order to do so.

            At his hearing, Mr. Menashi refused to answer numerous basic questions about his work, including about his role in the administration’s family separation policy.

            He also refused to answer written questions about whether he has worked or advised on matters relating to the whistleblower complaint and President Trump’s call with Ukraine’s president.

            Importantly, none of these questions asked Mr. Menashi about the substance of his advice. These questions simply sought to understand what matters he has worked on. His refusal to answer makes it difficult for us to fulfill our constitutional duty to advise and consent.

            Mr. Menashi’s earlier career is equally troubling. He criticized “Take Back the Night marches,” which aim to stop campus sexual assault.

            He also wrote that the Supreme Court’s decision in Roe v. Wade had codified the “radical abortion rights advocated by campus feminists.”

            He wrote that gun control legislation is “pointless [and] self-defeating, because guns reduce crime,” and he claimed that a major LGBT-rights organization had “incessantly exploited the slaying of Matthew Shepard for both financial and political benefit.”

            Mr. Menashi wrote that “charges of racism are typically overblown,” and he compared affirmative action in college admissions to Nazi Germany’s Nuremberg laws.

            I want to close with a quote from a letter of opposition submitted by the Congressional Black Caucus. The CBC rarely takes a position on judicial nominees, but in this instance, felt compelled to do so.

            The CBC writes: “Menashi’s writings show a willingness to discriminate against minorities, women and the LGBTQ community. Menashi, who has consistently spoken against diversity and inclusiveness, does not deserve a lifetime position on one of the most important appellate courts in this country.”

            In light of Mr. Menashi’s record, it is hardly surprising that there is bipartisan opposition to his nomination.

            I will vote No on Mr. Menashi’s nomination, and I urge my colleagues – on both sides of the aisle – to do the same.”