[Congressional Record Volume 165, Number 181 (Wednesday, November 13, 2019)]
[Senate]
[Pages S6518-S6519]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                    Nomination of Steven J. Menashi

  Mr. President, on the subject of nominations, last week every 
Republican member of the Senate Judiciary Committee voted to report out 
the nomination of Steven Menashi for a lifetime judgeship on the Second 
Circuit. Every Democratic Member voted the other way, and for good 
reason.
  Steven Menashi lacks even the most basic courtroom experience. He has 
never argued in court, conducted a deposition, or tried a case. He has 
written dozens of incendiary editorials and articles in which he showed 
a lack of judgment and judicial temperament.
  Let me give you a couple of examples. He said that ``charges of 
racism are typically overblown.'' He went on to say that gun control 
legislation is ``pointless and self-defeating because guns reduce 
crime.'' Then he said, ``The animal rights crowd is, by and large, a 
contemptible bunch.''
  Mr. Menashi currently works in the White House. He works with Stephen 
Miller. There is a name that may be familiar. He is pushing Stephen 
Miller's anti-immigrant agenda.
  He spent several years advising the Secretary of Education, Betsy 
DeVos, on some of the most anti-student measures that Department has 
ever undertaken.
  Mr. Menashi's hearing before the Senate Judiciary Committee was an 
embarrassment. He refused to answer basic questions from either 
Democrats or Republicans, basically saying to the Judiciary Committee: 
My experience--what I have done, what I believe--is none of your 
business.
  It was a deeply troubling nomination, to the point where even 
Republican colleagues on the committee were chiding him to answer a 
question if he wanted a lifetime appointment to the second highest 
court in the land. He continued to refuse, but he still won all of 
their votes when his nomination came up last week.
  Apparently, Mr. Menashi is hoping that in this busy week, we are 
going to hold this floor vote, and nobody will notice. Well, a lot of 
Americans will notice, especially the tens of thousands of Americans 
who have been the victims of the for-profit college scams. Do you 
remember those schools? You have heard a lot about them, haven't you? 
All these schools that said they were colleges and universities--they 
were in it for a buck. Many of them turned out to be frauds. They 
weren't really colleges and universities.
  Nine percent of high school students in the United States go to for-
profit colleges and universities--9 percent--and one-third, 33 percent 
of all the student loan defaults are students at for-profit colleges 
and universities. Why? They overcharge the students; they undereducate 
them; and they leave them with a mountain of debt. When these schools 
go out of business, we have an opportunity to say to the students: We 
are sorry you were defrauded, but it shouldn't ruin your life. We are 
going to make sure your student loan at this bogus institution is 
forgiven.
  Months ago, we learned that the DeVos Department of Education misused 
private Social Security Administration data to deny student loan relief 
to thousands of students cheated by the failed for-profit school, 
Corinthian Colleges. Last week, we learned that Mr. Menashi, the 
nominee we will consider this week, was the architect of this plan to 
deny these students full and fair relief. He gave legal advice to 
Secretary DeVos on how to carry it out.
  It was certainly bad advice. A Federal court ruled that the Menashi 
plan illegally violated student privacy and ordered the Department to 
stop putting Corinthian borrowers into collection while they waited for 
relief. This man, who wants a lifetime appointment to opine and rule 
and judge on laws and statutes and the Constitution, gave advice to the 
Secretary of Education that turned out to be found in violation of the 
law. In the months that followed, the Department failed to comply with 
the order of the court, resulting in the judge's holding Secretary 
DeVos in contempt of court and forcing her to pay a fine because of 
Menashi's advice. What a debacle. Yet my Republican colleagues believe 
that the appropriate response to this debacle by Mr. Menashi is to 
promote him to a lifetime appointment to a court that is one step below 
the U.S. Supreme Court.

  While Mr. Menashi is looking forward to his lifetime job, the victims 
of Corinthian Colleges' fraud and Menashi's illegal scheme continue to 
suffer without the relief they deserve--victims like a man named 
Sheldon, one of my constituents from Bloomington, IL. He took out 
student loans to enroll in an online criminal justice course from one 
of the Corinthian schools, called Everest College.
  Corinthian may have gone bankrupt in 2016 after it was revealed that 
it had defrauded students into signing up, but former students like 
Sheldon have had no relief from the Department of Education for their 
student loan debt from this bankrupt school that defrauded them. The 
collection agencies still keep calling Sheldon's home. He wrote to my 
office and told me how he had his wages garnished because he owes 
$13,000 in student loans for enrolling in this bogus Corinthian College 
program. He said: ``My checks have been taken away from me for the past 
3 years.''
  Mr. Menashi should be embarrassed by the advice he gave to Secretary 
DeVos to deny full and fair relief to students like Sheldon and 
thousands of others who were tricked and cheated by for-profit 
colleges. He is not. Mr. Menashi told me in writing after his hearing: 
``I am proud of my work at the Department of Education and of the legal 
advice that I provided.''
  The Second Circuit is one of our most important appellate courts. It 
hears appeals coming out of the Southern District of New York, where 
there are multiple investigations underway of national note.
  The Senate should have grave reservations about advancing a nominee 
to the Second Circuit who currently works in the White House but would 
not disclose under oath what he does, who has minimal courtroom 
experience, who has a record of giving troubling legal advice, and who 
has a history of expressing views which were entirely out of the 
mainstream.
  I want to commend one Republican colleague, Senator Susan Collins of 
Maine, who said she is personally going to oppose the Menashi 
nomination because in her words--I couldn't say it more clearly--``I do 
not believe he is well-suited to serve on the federal bench.'' Wouldn't 
it be great if a few more Senate Republicans felt the same way?
  I urge a ``no'' vote on the Menashi nomination.
  I yield the floor.
  Mrs. FEINSTEIN. Mr. President, 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

[[Page S6519]]

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 3 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.

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