Daniel A. Cotter

Register Opinion contributor

President Donald Trump has established a strong legacy on the federal benches, with 146 Article III judges confirmed as of mid-August 2019, or 16.7% of all Article III judge positions.

Trump also has filled 43 Courts of Appeals judge positions, or 24%, and nominated two of nine Supreme Court justices. The appellate judge nominations set a record pace for the first term of a president.

Trump nominee Steven Menashi for the 2nd U.S. Circuit Court of Appeals in New York should be rejected for his extensive record of racist, sexist and homophobic writings and for his extreme positions on numerous issues as well as his terrible record on human rights. The Alliance for Justice has completed a comprehensive report on him.

On Aug. 14, Trump announced that he was nominating Menashi to the 2nd Circuit vacancy. Senators Lindsey Graham and Majority Leader Mitch McConnell, R-Ky., rushed Menashi’s appearance before the Judiciary.

His writings and comments are extremely disturbing. In addition, his lack of candor before Judiciary Committee members upset even the stalwart Republican members on the committee, including Sens. Graham and John Kennedy, R-La. In fact, Kennedy announced it was “doubtful” he would support Menashi.

In the not too distant past, the GOP senators insisted that in order to proceed, the home state senators would have to submit blue slips for the nominee, allowing potential nominees’ home state senators to have input in who would serve lifetime tenures.

Both New York Senators Chuck Schumer and Kirsten Gillibrand have not submitted blue slips. Sen. Chuck Grassley of Iowa long supported the blue slip procedure and its reasoning. On April 15, 2015, Grassley expressed his firm commitment to the blue slip process in a Des Moines Register opinion, “Working to secure Iowa’s judicial legacy,” writing:

“For nearly a century … the Senate Judiciary Committee has brought nominees up for committee consideration only after both home state senators have … returned what’s known as a ‘blue slip.’ … Over the years … chairs of both parties have upheld a blue-slip process, including … my immediate predecessor … who steadfastly honored the tradition even as some in his own party called for its demise.”

His words would ring hollow as he dismissed the importance of the practice under Trump. In October 2017, the Congressional Research Service issued a paper, “The Blue Slip Process for U.S. Circuit and District Court Nominations: Frequently Asked Questions,” reporting “there are three known nominees who were approved by the Senate after having received a negative blue slip by one … of the nominee’s home state senators.”

In 2009, all Republican senators wrote a letter to President Barack Obama, insisting that the blue slip tradition remain in full effect, warning of repercussions if the administration did not follow it.

Sadly, that too has eroded and for the first time, in February 2019, an appellate court nominee was confirmed with both home state senators refusing to submit a blue slip. Menashi would be the second.

With the elimination of the filibuster for all Article III judges and the drastic reduction of debate time, Trump will have plenty of other nominees who will be confirmed. Menashi is too extreme, stating that democratic countries work better when everyone is of the same ethnicity, making racist and xenophobic statements, and retelling the myth of Gen. John Pershing using bullets dipped in pigs’ blood. A review of Menashi’s written record and statements and work for the administration shows that Menashi is an ultraconservative ideologue that the Senate should reject for being too extreme.

Menashi’s nomination can be filled with another Trump nominee not so radical and the Senate should take advice from recent past Grassley and reject Menashi.

Daniel A. Cotter is a Chicago attorney and author of the book “The Chief Justices” who writes frequently about the courts and the Constitution.