It is one of the most fundamental principles enshrined into the United States Constitution and our judiciary: equal justice under law. However, Donald Trump, Mike Pence, and Mitch McConnell are working overtime to ingrain their draconian and fundamentally un-American policies into the legal and social fabric of our nation by appointing ideologues to lifetime seats on the federal bench.
The Trump-McConnell machine has muscled over 150 federal judges into lifetime appointments, most of whom lack a commitment to fundamental fairness when weighing the fate of each individual who comes before them. And this week, the Senate is poised to mark up another Trump nominee whose devotion to radical, anti-LGBTQ punditry and exclusionary, racist ideology signals a new low, even for this administration. If Steven Menashi is confirmed, it would be yet another proof point that there is no ideology too extreme, no viewpoint too vile, and no judge too biased to be nominated by the Trump-Pence administration and rubber-stamped by Mitch McConnell.
Menashi is nominated to serve as a federal judge on the 2nd Circuit, a circuit that includes millions of people in New York, Connecticut, and Vermont who rely on federal courts to enforce and protect their rights every day. The people of the 2nd Circuit deserve a federal judge who will interpret the Constitution and our laws fairly and without bias — regardless of who they are, whom they love, and where their parents were born. Unfortunately, Menashi’s record indicates just the opposite.
Menashi has never shied away from embracing and promoting anti-LGBTQ rhetoric and has consistently used whatever platform he’s handed — from his college newspaper, to legal publications, to a seat at the table at the White House — to undermine our community’s fight for equality. He’s been an outspoken opponent of marriage equality and supports the rights of businesses to turn LGBTQ patrons away — simply because of who they are. In 2015 he argued that cases like Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission were driven by the LGBTQ community’s desire to bully religious business owners rather than a fight to ensure access to services. He concluded that LGBTQ customers can always just find someone to serve them “elsewhere.”
This is not true, and is a red herring to distract fair-minded people from the issue at hand. First, LGBTQ people live in almost every community in the country, including in some of our nation’s least populated areas. We know that for many in our community, finding services “elsewhere” could mean hours of driving or just doing without. For example, a gay man in Texas could be turned away from the only car mechanic in town and have to choose whether to have his vehicle towed to the nearest city or put food on the table that night. But more importantly, the Supreme Court has consistently recognized that turning individuals away because of who they are is an unacceptable assault to human dignity regardless of whether they’re able to secure services “elsewhere.” This acknowledgement of human dignity in the context of discrimination and access to services is a cornerstone of our nation’s civil rights history. Menashi’s inability — or perhaps more troubling his refusal — to recognize LGBTQ people’s dignity in this broader context is chilling, and frankly, disqualifying.
But that’s not the only cause for concern. For the past two years Menashi has had his fingerprints on some of the most devastating policies to come out of the Trump White House. He served as General Counsel for Betsy DeVos — designing the legal framework for undermining critical Title IX protections for survivors of sexual assault and LGBTQ students. Even more troubling is his recent role as Trump’s Special Assistant and Associate Counsel where he has worked alongside Stephen Miller in the White House Immigration Strategic Working Group — the administration’s think tank responsible for developing the administration’s most disturbing approaches to immigration, including the family separation policy and the policies that allow children to be detained in cages.
As a federal judge, Menashi will have the opportunity to rule on numerous cases and controversies addressing some of the most critical questions regarding equality, fundamental rights, and access to justice. Such a position must be filled by a neutral arbiter with a demonstrated commitment to fairness, equality, and the preservation of human dignity for all people. Steven Menashi falls far short of this basic threshold. Menashi is not neutral, nor fit to be an arbiter, and he has no place deciding the fates of people whose very personhood he will not protect.
Robin Maril is the Associate Legal Director for the Human Rights Campaign, the nation’s largest lesbian, gay, bisexual, transgender, and queer (LGBTQ) civil rights organization in the United States.