Executive Summary: On August 14, 2019, President Trump nominated Steven J. Menashi, a conservative, to the United States Court of Appeals for the Second Circuit to fill the vacancy left by Justice Dennis Jacobs upon taking senior status on May 31, 2019. Menashi currently serves as the President’s Special Assistant and Senior Associate Counsel. His nomination is pending confirmation by the Senate.
Menashi, a graduate of Stanford Law School and former clerk for Supreme Court Justice Samuel Alito, is well-known in the legal field. He has served in high-ranking roles in both the public and private sectors, including as acting general counsel for the U.S. Department of Education and as a partner at Kirkland & Ellis LLP.
If confirmed, Menashi would sit among six Second Circuit judges appointed by Presidents Clinton and Obama, and five judges appointed by Presidents George H.W. Bush and Trump. One Second Circuit seat remains vacant since Justice Droney took senior status on June 30, 2019, leaving the panel open to be “flipped” to a majority of republican-appointed judges if President Trump fills the final seat during his tenure. Until that time, if Menashi is confirmed, the Second Circuit panel would remain equally split between democratic and republican appointees.
Menashi is generally perceived as being politically conservative, as demonstrated by his current service to President Trump and nomination by the conservative President. His prior service to Betsy DeVos, current Secretary to the Department of Education, has given a glimpse into his political leanings and legal positions. He has argued against deference to federal administrative agencies, authoring “Our Illiberal Administrative Law” in 2016 in which he argued against “presumptions that favor the government, unbounded delegations of authority, judicial deference on questions of law, [and] the evasion of notice‑and‑comment rulemaking.” In light of his prior arguments, Menashi’s presence on the bench may challenge the judicially-adopted doctrine of deference to administrative agencies, which is in line with the recent trend exhibited by the United States Supreme Court, now boasting a conservative majority.
Although the Second Circuit, encompassing New York, Connecticut and Vermont, will, for the foreseeable future, remain a more liberal jurisdiction based on its geographical location and constituents, it is expected that, if confirmed, Menashi’s appointment will nudge the Second Circuit bench closer to the center, if not right-of-center. This could weigh in favor of employers on many labor and employment law issues.
Bottom Line: As conservative courts tend to be more employer-friendly, Steven Menashi’s confirmation would be good news for employers in New York, Connecticut and Vermont. Even better news would be if President Trump is able to fill and obtain confirmation for not only Menashi, but also the final Second Circuit seat vacancy, thus creating a conservative majority in the Second Circuit, something rarely seen in the Northeast. If that happens, we could anticipate more decisions favoring the position of employers. Employers and attorneys should also keep a keen eye on the Circuit’s approach toward administrative deference.
We will continue to keep you updated on the status of the Second Circuit’s composition and other issues impacting employers in New York, Connecticut and Vermont. If you have any questions regarding the issues discussed in this Alert, please contact the authors, Johanna Zelman, jzelman@fordharrison.com, Office Managing Partner in FordHarrison's Hartford office and partner in FordHarrison’s New York City office, and Elliot Buckman, ebuckman@fordharrison.com, counsel in our New York City office. Of course, you may also contact the attorney with whom you usually work.