Trump Judicial Nominee Steven Menashi Advances Despite NYT ‘Smear’ Story

In this Sept. 11, 2019, file photo, White House lawyer Steven Menashi, President Donald Trump's nominee for U.S. Court of Appeals for the 2nd Circuit, appears for his confirmation hearing before the Senate Judiciary Committee, on Capitol Hill in Washington. The Senate Judiciary Committee has endorsed him for a federal …
AP Photo/J. Scott Applewhite

The Senate Judiciary Committee (SJC) has advanced President Donald Trump’s judicial nominee Steven Menashi despite an attempt by the New York Times to kill his nomination, says Carrie Severino, chief counsel and policy director to Judicial Crisis Network (JCN).

In a tweet thread Thursday, Severino called out the Times’ attempt to kill Menashi’s nomination to the Second Circuit Court by publishing an article that claimed Menashi “helped devise an Education Department plan to use Social Security data to deny students debt relief, an effort that a judge ruled violated privacy laws.”

The story “amounts to yet another hit job against Steve Menashi” and is part of a series of “baseless smears against Menashi [that] have been unrelenting,” said Severino in a statement.

The Times’ reporter Erica Greene wrote:

A judicial nominee slated for a key Senate committee vote on Thursday helped devise an illegal Education Department effort to use private Social Security data to deny debt relief to thousands of students cheated by their for-profit colleges, according to a memo obtained by The New York Times.

In its coverage of the advancement of Menashi out of the SJC, U.S. News & World Report continued the narrative with a headline that read, “Senate Committee Advances Controversial Judicial Nominee with Ties to DeVos.”

Menashi once served as acting general counsel of the U.S. Education Department under Secretary Betsy DeVos, who is also a favorite target of Democrats and the left-wing media.

Severino said in a lengthy tweet thread that the Times’ story was “misrepresenting a 2017 Department of Education regulation about which Second Circuit nominee Steven Menashi advised Secretary Betsy Devos when he was Acting GC of the agency.”

She continued:

In 2015, Corinthian Colleges Inc., a for-profit college chain, filed for bankruptcy and shuttered its doors. Thereafter a group of 100,000 Corinthian alumni filed claims under the Department of Ed’s “borrower defense” rule seeking to have their student loans discharged.

Needless to say, these federal student loans were made from U.S. taxpayers to student borrowers who were now hoping to avoid repayment.

Under the “borrower defense” rule, first promulgated in the 1990s, the Department of Ed will discharge a student’s debt if “any act or omission of the school attended by the student . . . would give rise to a cause of action against the school under applicable State law.”

After Corinthian filed for bankruptcy, the Obama Admin’s Dept of Ed determined that Corinthian had misrepresented its job placement data to prospective students and began discharging the student loans of the complainants—without using any methodology for assessing actual harm.

When President Trump was elected, the Department of Ed under Secretary DeVos sought to develop a method of calculating actual harm to student borrowers.

To do this, the Department of Ed compared the *average* earnings of Corinthian grads to those of students from other comparable institutions. This was a means by which to assess the actual “value” of the education provided to Corinthian students.

Under the regulation, the Department of Ed entered into an exchange agreement with the Social Security Administration.  Through the exchange, the Department of Ed provided lists of Corinthian students and the SSA in turn provided *aggregate* earnings data for those students.

In litigation currently pending before the Ninth Circuit, the Department of Ed maintains that the provision of “aggregate, statistical data without any personal identifiers” does not violate the Privacy Act, contrary to the finding of the magistrate judge below.

The obtained SSA data showed that while students who attended certain Corinthian programs (e.g. Computer Science) earned far less on average, students who attended other Corinthian programs (e.g. Pharmacy Techs) earned as much as those attending other comparable institutions.

Note the prudence of this regulation from a good governance perspective: If a student borrower who attended Corinthian is gainfully employed, was the student actually harmed by any misrepresentations by the school?

And if the student borrower not actually harmed, why should taxpayers pick up the cost of that employed person’s loan?

This regulation helped to ensure an equitable outcome for the students who were actually harmed by Corinthian and also promoted the prudent use of taxpayer dollars.

Moreover, the district court found that the adoption of the Department of Ed’s regulation (about which Menashi provided legal advice to Secretary DeVos), “was a legitimate exercise of the Secretary’s discretion under the Higher Education Act” and did not violate the APA [Administrative Procedures Act].

The @NYT story makes no mention of the fact that the Department of Ed used *aggregate* SSA data to calculate average earnings (as opposed to individual data), and is thus misleading.

This story amounts to yet another hit job against Steve Menashi.  From the very first @Maddow story accusing him of being an ethnonationalist the day after his nomination was announced, the baseless smears against Menashi have been unrelenting.

The only thing this new @NYT story proves is how desperate the left is to kill Steve Menashi’s nomination.

In August, MSNBC anchor Rachel Maddow was criticized for falsely accusing Menashi of racism.

Breitbart senior editor-at-large Joel Pollak wrote:

Maddow is guilty of smearing him as a racist based on distortions of his writings so egregious that it is clear she either never read the articles she cites; did not understand them; or — worst of all — read them, understood them, and misconstrued them.

In 2010, Menashi, a Jew of Iraqi origin, published a law review article in the University of Pennsylvania Journal of International Law titled, “Ethnonationalism and Liberal Democracy.”

“The article sought to defend Israel from criticism that it violates democratic norms because it adopts the Jewish community as the basis for its national identity (though it grants equal rights to Arabs and other minorities),” Pollak wrote.

Menashi concluded his paper by stating that “liberal democracy requires a national community if it is to become more than an ineffectual abstraction.”

“His view is not extreme: it is entirely consistent with the idea of an inclusive American nationalism,” Pollak said.

By selecting certain passages of his article, however, Maddow accused Menashi on her show of being a racial extremist.

“She quoted his article selectively, and inaccurately, claiming that Menashi had argued that ‘democracy can’t work unless the country is defined by a unifying race,’” Pollak wrote.


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