By Miriam Elman Legal Insurrection Last week the U.S. Senate’s Health, Education, Labor and Pensions (HELP) Committee concluded its hearings regarding the confirmation of Kenneth L. Marcus, President Trump’s pick for the position of Assistant Secretary of Education for Civil Rights. We noted in a post back in October, when the White House first announced the nomination, that Marcus is extraordinarily qualified for the job and is an excellent pick for heading the Office for Civil Rights (OCR), Trump appoints attorney who combats antisemitism to key civil rights post. Marcus is the founder of the Louis D. Brandeis Center for Human Rights Under Law, a globally renowned civil rights advocacy and research organization, and has formerly served as Staff Director at the U.S. Commission on Civil Rights and as Assistant Secretary of Education for Civil Rights and Assistant Secretary of Housing and Urban Development for Fair Housing and Equal Opportunity. An expert on antisemitism, he’s been a leading voice for years in the fight against the discriminatory boycott, divestment, and sanctions (BDS) movement and rising anti-Jewish bigotry on American colleges and universities. At the Brandeis Center, he’s been an outspoken supporter of Jews on campus, who are increasingly threatened, harassed, shut down, and ostracized by virulently anti-Israel student groups and even faculty, who are often allowed by administrators to act with impunity. With all this expertise and considerable past experience on the issues at stake for the OCR, Marcus should’ve been a shoo-in for the job. He should’ve easily received the HELP committee’s endorsement when it met again last week to vote on his confirmation. But instead, Marcus’ confirmation appears to be held up in committee on account of a sustained and vocal outcry against him by an assorted array of virulently anti-Israel organizations and activists. They’ve been mobilizing their members to bombard the HELP Committee Senators with smears against the nomination, which is likely turning at least some Democrats on the committee against his appointment. That’s why it’s really important to call or write the Senators on the HELP Committee and to clearly relay your strong support for the confirmation of Kenneth L. Marcus as Assistant Secretary of Education for Civil Rights. A list of the 23 members of the U.S. Senate Committee on Health, Education, Labor and Pensions, along with their mailing addresses, phone numbers and email addresses, is here, and also copied below (a sample script for your message can be found here). Anti-Israel Groups Launch Smear Campaign Against Marcus After Trump announced Marcus’ appointment on October 26th, virulently anti-Israel organizations and activists, including Jewish Voice for Peace (JVP), If Not Now, Palestine Legal, the U.S. Campaign for Palestinian Rights (USCPR), the U.S. Academic and Cultural Boycott of Israel (USACBI), and the Arab American Institute, mobilized against Marcus. Initially, they focused on falsely accusing Marcus of suppressing the criticism of Israel on campus and warning that, if confirmed, he would continue to repress college students from organizing for Palestinian rights. That is, before the December 5th Senate HELP committee hearing, the smear campaign against Marcus was almost entirely centered on delegitimizing him as an “anti-Palestinian crusader”—someone who opposes Palestinian rights because he allegedly “bullies students and faculty who advocate for Palestinian rights”, “undermines pro-Palestinian activism on campus”, tries to get “student activists disciplined” and works to “defund” university Middle East Studies program. Multiple statements, Action Alerts, petitions, videos, and editorials (see, for example, here and here) were written and produced during this time centering on the free speech of Palestinian student activists and the ways in which Marcus would supposedly trample on it. They’re ludicrous accusations. As we discussed in our prior post, Marcus has never said anything anti-Palestinian and actually objects to silencing any voice on campus (he has even publicly stated that “people who hate Israel” should “not be silenced”). His position is rather that anti-Jewish harassment and intimidation on campus should be addressed with the same vigor as would any other type of bigotry—so that ALL students are able to learn in a welcoming and safe environment. As we also noted in our prior post, should he be confirmed, what Marcus will do as the OCR’s new head is work to ensure that federally-funded Middle Eastern Studies research centers on university campuses provide a diversity of viewpoints and perspectives on the region, in compliance with the Higher Education Act’s mandate. Smear Campaign Against Marcus Intensifies In recent weeks, this ugly smear campaign has expanded from just opposing Marcus on account of his position on BDS and antisemitism—the central messaging before the December 5th confirmation hearing—to an effort over the last several weeks aimed at destroying his civil rights record in general. Basically, his application of civil rights protections for other minority groups is now coming under attack. Code Pink’s Ariel Gold, a viciously anti-Israel activist who disrupted prayers at the Western Walland snuck a Palestinian activist who embraces using children to confront soldiers into a third-grade classroom, is among the leaders of the campaign against Marcus: By tracking the social media of JVP, Palestine Legal, and USCPR, for example, you can literally see how the messaging shifted after the Senate hearing earlier this month, during which Marcus’ opposition to the Israeli boycott didn’t come up at all in the questioning. That’s probably the main reason that the attacks against Marcus are now addressing a wider range of civil rights issues that are of interest to the HELP Committee. The shift in focus may also be due to the fact that Marcus’ position on BDS and his preferred definition of antisemitism aren’t at all controversial and represent mainstream viewpoints. Anti-Israel groups and activists may have wisely calculated that harping on these topics, while galvanizing their base of Israel-haters, wouldn’t have all that much of an impact on the majority of Senate HELP Committee members. So after the December 5th hearing, the smear campaign clearly shifted to distorting Marcus’ entire civil rights record. But they’re still grasping at straws. That’s because in legal circles, Marcus is credited with “energetically enforcing anti-discrimination measures” and, specifically, with having pushed the Bush administration to take a “stronger approach to enforcing civil rights law”. It means that anti-Israel zealots have had to resort to making stuff up. For example, Palestine Legal’s new ‘factsheet’ and a recently published article by the virulently anti-Israel Ariel Gold in the online site Mondoweiss, whose material often trades in antisemitic tropes and canards, directs people to two journal articles (see here and here) that Marcus wrote nearly a decade ago as “proof” of his discriminatory attitudes toward minorities. His arguments in these essays are distorted in order to absurdly cast him as someone whose concern for civil rights is highly selective and doesn’t include women, LGBTQ, or African-Americans. Anti-Israel activists are also now working hard to turn the nomination into a partisan issue, trying to tightly connect Marcus’ civil rights record to Trump’s controversial positions, statements, and policies, thereby energizing the left-wing opposition to his confirmation. In particular, there’s been an effort to deride Marcus’ answers during his confirmation hearing. The reality is that he responded thoughtfully to the questions, most of which focused on federal Title IX policies. But the smear campaign has unfairly glommed onto Marcus’s remark during the hearing when he declined to disparage Trump (as if it’s customary for nominees to castigate their would-be bosses in such settings) Conclusion In an important op-ed for the Boston Herald, Jeff Robbins, an attorney who served as a U.S. delegate to the U.N. Human Rights Commission in the Clinton administration, urges Democratic legislators to support the administration’s appointment of the “eminently qualified” Kenneth L. Marcus to a high-ranking position in the DoE—even if it’s Trump who tapped him for the post. Robbins devotes considerable space to summing up why Marcus is a “natural fit” for the job of assistant secretary for civil rights. But he also points out why so many “fringe and unhinged groups who operate something of an anti-Semitism lobby” have been bitterly criticizing his nomination: These include groups rabidly opposed to the existence of a Jewish national homeland, who fund and carry out efforts to scare the daylights out of pro-Israel students and faculty on American campuses, and whose hate speech can take on a hair-raising quality—even while they profess to be human rights activists. Marcus’ work at the Brandeis Center has often brought him into conflict with this crowd, which has already begun to smear him. Democrats in the Senate would do well not to fall for it. The impulse to decide that ‘the-appointee-of-my-enemy-is-my-enemy’ may be tempting. But in the case of Ken Marcus, it is the wrong one.” Will the Senate HELP Committee really reject Robbins’ advice and that of other prominent civil and human rights lawyers, First Amendment scholars, legal and civil rights organizations, and major American Jewish and Christian groups, who have also rallied around Marcus? Will these Senators instead cater to the unsubstantiated diatribes of anti-Israel propagandists and zealots affiliated with ADL-flagged hate groups—which, as we’ve shown in dozens of posts, are themselves a big part of the problem on America’s campuses and are therefore opposing Marcus’ nomination solely because they’re worried that, if confirmed, he’d be someone who could take appropriate steps against them? Probably not. Still, the strong resistance to Trump shouldn’t be underestimated here. In the current political climate, virulently anti-Israel groups bent on derailing Marcus’ nomination have made a savvy move by linking it to anti-Trump hostility. So far, they’ve only succeeded in delaying the confirmation, but the longer the delay the more time they have to spin opposition to the nomination as a defiance of Trumpism, and the more likely other members of the Senate HELP committee will sour on the appointment. Because of this, they might actually win. Bottom line: Despite his impeccable credentials and his years of public service fighting discrimination, the Senate confirmation of Kenneth L. Marcus is not guaranteed. So it’s imperative that pro-Israel supporters—and really everyone committed to seeing a college campus climate that is respectful and free of intimidation and harassment—take immediate action by contacting the individual legislators on the HELP Committee. You can let them know that you support Marcus’ confirmation and also find unacceptable the attempts by anti-Israel activists to derail it, by besmirching the reputation of a fine civil rights advocate. Here’s the list: Members of the U.S. Senate Committee on Health, Education, Labor & Pensions Chairman: Senator Lamar Alexander (R- TN) 455 Dirksen Senate Office Building Washington, DC 20510 (202) 224-4944 Email: click here Senator Michael B. Enzi (R- WY) 379A Senate Russell Office Building Washington, DC 20510 (202) 224-3424 Email: click here Senator Richard Burr (R -NC) 217 Russell Senate Office Building Washington, DC 20510 (202) 224-3154 Email: click here Senator Johnny Isakson (R -GA) 131 Russell Senate Office Building Washington, DC 20510 (202) 224-3643 Email: click here Senator Rand Paul (R- KY) Russell Senate Office Building #167 Washington, DC 20002 (202) 224-4343 Email: click here Senator Susan Collins (R- ME) 413 Dirksen Building Washington, DC 20510 (202) 224-2523 Email: click here Senator Bill Cassidy, M.D. (R- LA) 520 Hart Senate Office Building Washington, D.C. 20510 (202) 224-5824 Email: click here Senator Todd Young (R- IN) 1007 Longworth House Office Building, Washington, DC 20515 (202) 224-5623 Email: click here Senator Orrin Hatch (R- UT) 104 Hart Office Building Washington, DC 20510 (202) 224-5251 Email: click here Senator Pat Roberts (R -KS) 109 Hart Building Washington, DC 20510 (202) 224-4774 Email: click here Senator Lisa Murkowski (R- AK) 709 Hart Building, Washington, DC 20510 (202) 224-6665 Email: click here Senator Tim Scott (R- SC) 717 Hart Senate Office Building Washington, DC 20510 (202) 224-6121 Email: click here Ranking Member: Senator Patty Murray (D -WA) 154 Russell Senate Office Building Washington, D.C. 20510 (202) 224-2621 Email: click here Senator Bernie Sanders (D -VT) 332 Dirksen Building Washington, D.C. 20510 (202) 224-5141 Email: click here Senator Robert P. Casey, JR (D- PA) 393 Russell Senate Office Building Washington, DC 20002 (202) 224-6324 Email: click here Senator Al Franken (D- MN) 309 Hart Senate Office Building Washington, DC 20510 (202) 224-5641 Email: click here Senator Michael F. Bennet (D- CO) 261 Russell Senate Office Building Washington, DC 20510 (202) 224-5852 Email: click here Senator Sheldon Whitehouse (D- RI) Hart Senate Office Building, Room 530 Washington, DC 20510 (202) 224-2921 Email: click here Senator Tammy Baldwin (D- WI) 2446 Rayburn Hob, Washington, DC 20515 (202) 224-5653 Email: click here Senator Christopher S. Murphy (D- CT) 136 Hart Senate Office Building Washington, DC 20510 (202) 224-4041 Email: click here Senator Elizabeth Warren (D- MA) 2 Russell Courtyard Washington, DC 20510 (202) 224-4543 Email: click here Senator Tim Kaine (D- VA) 388 Russell Senate Office Building Washington, D.C. 20510 (202) 224-4024 Email: click here Senator Maggie Hassan (D- NH) 330 Hart Senate Office Building Washington, DC 20510 (202) 224-3324 Email: click here