President Trump nominated Steven Menashi to the Second Circuit. In a fair world, Mr. Menashi would breeze through the hearings. The liberal gold standard of Senate Minority Leader Chuck Schumer, the American Bar Association, rated him “well qualified.” His personal background is also inspiring. Menashi’s paternal grandparents were Iraqi Jews, living in Baghdad, before moving to Tehran and then finding a home in Israel. His grandmother survived the Farhud, a violent pogrom against the Jewish community of Baghdad in 1941, by fleeing the city for the countryside. Menashi’s grandfather fled Ukraine for the United States at age 16 and his maternal grandmother’s family emigrated from Lithuania.
I have never seen anything quite like it. To be accusing you with your history and your family of being basically one step away from being a Nazi is really something. All I can say is I am sorry that this is what you have to go through to be nominated to serve on a court as judge in this country.
Besides the left’s attempts to malign Mr. Menashi’s background, there were also the attacks on his defense of the ethical duty of confidentiality within the attorney-client privilege. He was criticized for not being willing to discuss which subjects within the topic of immigration he advised the President on. As Senator Mike Lee explained this would not have been appropriate.
Senator Lee: In fact, the duty of confidentiality extends not only to revealing the content of discussions discussed but also, often, necessarily, unavoidably, extends does it not to the topics covered with a particular client?
Mr. Menashi: Senator, that’s right. Often times consultations with a client are subject to confidentiality even, even topics.
Senator Lee: Therefore unless the client has relinquished that privilege as to the issue at hand as to what topic the lawyer has addressed with a client. The fact that a conversation has occurred; the fact that a lawyer has been employed on a particular topic is itself privileged. Is that right?
Mr. Menashi: That’s right, Senator.
Senator Lee went on to explain how this is part of ABA Model Rules of Professional Conduct Rule 1.6: Confidentiality of Information, which states in the relevant part: “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent.” While there are exceptions to this rule, as Senator Lee noted, none applied here.
The bottom line is that Mr. Menashi is being opposed for personal reasons that should be irrelevant or a positive--being an Iraq Jew who defended Israel’s right to exist in writing--and for following professional ethical guidelines regarding what he cannot control--what his client, the President of the United States, has authorized to be discussed. Under any reasonable standard, Mr. Menashi would be confirmed quickly and with bipartisan support. But because he was nominated by President Trump, he is being unreasonably attacked.