Steven Menashi testifies before the Senate Judiciary Committee during his confirmation hearing to be U. S. Circuit judge for the Second Circuit, on Sept. 11, 2019. Photo: Diego M. Radzinschi/ALM

President Donald Trump's latest nominee for the U.S. Court of Appeals for the Second Circuit frustrated the Senate Judiciary Committee during his confirmation hearing Wednesday, as he largely refused to provide specifics on his work in the White House Counsel's Office.

Steven Menashi, a current White House lawyer and a special adviser to Trump, repeatedly refused to answer questions about the specific issues he worked on as a member of the Trump administration.

Some Republicans on the committee defended Menashi, arguing that attorney-client privilege protected him from even saying what topics he weighed in on.

But other GOP senators questioned Menashi's reasoning, including Senate Judiciary Committee Chairman Lindsey Graham.

Democratic Sen. Dianne Feinstein, the ranking member of the committee, was met almost immediately with opposition from Menashi as she sought to learn more about which Trump administration policies he may have weighed in on, particularly on immigration.

Feinstein asked the White House lawyer about whether he had given advice on the Trump administration's policy of separating families at the border, or if he had worked with Trump senior adviser Stephen Miller as a part of a group focusing on immigration policies.

"I'm not authorized to talk about particular deliberative processes that occurred within the White House," Menashi replied.

After Feinstein repeatedly asked him about what immigration policies Menashi might have worked on, he declined to give a more specific answer beyond the one he initially gave.

"You can't tell us anything about what you did so we can't learn anything about what your positions are on key issues" that could impact how the committee votes on his nomination, Feinstein asked.

Graham at first said it was unfair for Democrats to push Menashi on the specifics, noting that an arrangement hadn't been made with the White House as in the case for now-D.C. Circuit Judge Gregory Katsas, who was a deputy in the White House Counsel's Office when he appeared before the committee in 2017.

"There's no game being played here," Graham said, adding that he would want his lawyers to let him know ahead of time if they were publicly sharing information about work they had done for him.

But he later seemed to give Menashi a slap on the wrist when he answered a question from Republican Sen. Josh Hawley of Missouri about the legal process behind changing an Education Department program that used to block religious historically black colleges and universities from obtaining certain funds. The Office of Legal Counsel released a memo Tuesday in favor of lifting those restrictions, and showed Menashi's involvement.

"We're not going to do this," Graham told Menashi. "You're not going to answer his questions about legal advice and not answer her questions about legal advice."

Menashi said he wasn't trying to implement a double standard, but shared the details about the Education Department policy because the information was already public.

The debate over what Menashi could discuss spilled into lines of questioning for other senators from both sides of the aisle.

Sen. Dick Durbin, D-Illinois, cited Menashi's extensive opinion pieces and other writings in questioning why the White House lawyer could not now share details about his work for the administration.

"Are you telling us, despite all of the things you expressed in your life, it's out of bounds to ask you basic questions about things you have done, things you have considered as a White House counsel?" Durbin asked.

Durbin also pressed Menashi about the specific immigration topics or policies he gave legal advice on. And when Menashi again declined to give many details, Graham intervened, saying that it was "not an unfair question."

"I'm not asking you to talk about what you did in terms of legal advice, but did you work on the topic?" Graham asked, invoking his status as chairman of the committee.

Menashi then said he gave legal advice on issues tied to immigration policy, but that he didn't remember weighing in specifically on the topic of deferred deportation for undocumented immigrants who are being treated for life-threatening illnesses.

But Durbin still wasn't satisfied with the nominee's answers. He said that if Menashi wasn't able to answer his questions, "this is a worthless exercise." And the Democrat said that if Menashi couldn't be forthright, "then it's inappropriate for you to seek this nomination."

Republican Sen. John Kennedy of Louisiana similarly expressed frustrations after posing some hypothetical cases to learn how Menashi might approach them as a judge that elicited winding, drawn-out answers.

"I wish you'd be more forthcoming. This isn't supposed to be a game, we're supposed to try to understand not how you're going to rule, but how you're going to think," he said to the nominee. "I'm out of time. You took a lot of it by not answering my questions."

Both Sens. Mike Lee, R-Utah—who introduced Menashi at the hearing since he did not have the backing of his home-state New York senators—and Ted Cruz, R-Texas, offered cover for Menashi declining to answer questions, pointing to the importance of attorney-client privilege.

But some Democrats disputed their reading of the rules on the topic. Sen. Sheldon Whitehouse of Rhode Island, noting that he wasn't an "expert" on the subject matter, took issue with Lee's comments claiming that a lawyer does not even have to reveal who their clients are.

Menashi has faced criticism and opposition from liberals since he was nominated last month. Protesters could be heard outside the committee room during Wednesday's hearing, and Menashi paused several times during his opening statement as the shouts spilled into the chamber.

Menashi, a former Kirkland & Ellis partner, also clerked for Supreme Court Justice Samuel Alito and D.C. Circuit Judge Douglas Ginsburg, who attended the confirmation hearing. The nominee listed both men when asked to name his judicial role models.

Much of the criticism has surrounded Menashi's extensive writings, which date back to his time in college. He has written for several conservative publications, including the New York Sun.

One of Menashi's pieces, a 2010 law review article critical of "ethnically heterogeneous societies," quickly emerged after his nomination.

MSNBC host Rachel Maddow spotlighted it on her show, calling it a "highbrow argument for racial purity." Republicans criticized Maddow for not noting that the essay was about Israel and not the United States.

Menashi reiterated that point during his hearing Wednesday, saying that he thought the article was clearly about Israel and didn't apply to the U.S., and that he "abhors" racial discrimination.

He highlighted his family history in his opening statement and throughout the hearing. He recounted his family's time as Jews from Iraq who left over religious persecution—his father is an Iraqi Jew born in Iran—and his maternal grandparents are Jewish refugees who left the Soviet Union.

"Because of my family's experience, this country's commitment to the rule of law, to equal justice for each individual regardless of their backgrounds and to a fair and impartial judiciary has special meaning to me," Menashi said.

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