Jewish Law

In the fall of 2002, Nathan Lewin, a Washington litigator and one of the country’s leading advocates for Jewish causes, needed a plaintiff. Congress had just passed a foreign-aid bill requiring the government to permit American citizens born in Jerusalem to record their place of birth on their passports as “Israel”—a change from longstanding policy that recorded only the city name. Though he signed it, President George W. Bush issued a signing statement asserting that he would take the passport clause as merely advisory, and would therefore ignore it, because Congress has no authority to make foreign policy. For Lewin, it was an irresistible invitation. “We wanted to have our one test case,” he told me last week. “We wanted just one plaintiff who met the standard of a lawsuit.”

Luckily, Lewin’s new law partner—his daughter, Alyza, with whom he had founded an independent practice, Lewin & Lewin, a few months earlier—knew the perfect candidate. Her childhood friend Naomi Siegman, a pediatrician, was living in Jerusalem with her husband, Ari Zivotofsky. And in October 2002, a month after Bush signed the new law, their youngest son, Menachem, was born at Shaare Zedek, the oldest Jewish hospital in Jerusalem. “I’ve known Naomi my whole life,” Alyza Lewin said. “So, when she had the baby, I called her and said, ‘Go ask.’ And that’s how we got our test baby.”

On Monday, the boy, now 9 years old and only beginning to understand that his name is attached to a potentially landmark case, will be in Washington to watch Nathan Lewin argue on his behalf before the U.S. Supreme Court. It will be Lewin’s 28th appearance before the justices in the 50 years since he was admitted to the bar—a career in which he’s successfully argued for everything from the government’s use of informants in its case against Jimmy Hoffa to Chabad’s right to put up a menorah in front of Pittsburgh’s City Hall. “Nat is an absolutely off-the-charts brilliant lawyer,” said Alan Dershowitz, who has been friends with Lewin since the early 1960s, when both were young attorneys in Washington—Dershowitz as a clerk for Judge David Bazelon, chief of the U.S. Court of Appeals in the District of Columbia, and Lewin as a young hotshot in the Department of Justice.

In the four decades since he left the government, Lewin, an Orthodox Jew, has had some hotshot clients. In the 1980s, he gained notice as a lawyer for the actress Jodie Foster when she was called to testify against her stalker, John Hinckley Jr., after his assassination attempt against President Ronald Reagan. Later, Lewin represented Edwin Meese, Reagan’s attorney general, and kept him out of court in the wake of the Iran-Contra affair.

But it is Lewin’s work for Jewish causes that will likely be his lasting legacy. His first client in private practice was a Holocaust survivor who was concerned about jeopardizing his U.S. citizenship if he were drafted into military service while visiting Israel; Lewin subsequently defended members of the Kahanist Jewish Defense League. In recent years he has argued for the right of the Satmar Hasidim to have their own public school district in the Catskills enclave of Kiryas Joel, and he has represented Sholom Rubashkin, the former official of Agriprocessors, the now-shuttered Postville, Iowa, kosher meatpacking plant, in appealing the 27-year sentence he is serving for fraud.

Even friends like Dershowitz question whether all of Lewin’s Jewish cases have been good for the Jews. “The difference between us is that he spends most of his time representing the Orthodox community,” Dershowitz told me. “So, we have differences on issues like the menorah, or aid to schools, and we both have our opinions on what is best for the Jewish community, as a whole.” But on the Zivotofsky case, Dershowitz said, “we totally agree.” A review of the amicus briefs submitted in Zivotofsky v. Clinton, including one filed by a broad coalition that includes B’nai B’rith, the Anti-Defamation League, the Jewish Council for Public Affairs, the American Israel Public Affairs Committee, and all three branches of Judaism, suggests that the preponderance of the organized American Jewish community is also on Lewin’s side.

Yet from Lewin’s perspective, the Israel aspect is the least interesting thing about the case. “This case is much more limited in a Jewish context,” he told me. “But it’s much broader in the separation of powers context.” The court’s decision will only apply to the 50,000 or so U.S. passport holders born in Jerusalem since 1948. But the precedent it sets will determine whether Congress has the authority to pass laws concerning foreign affairs that have binding power over the president.

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At 75, Lewin has a gravelly voice, a close-cropped white beard and, behind round glasses, the twinkly eyes of a favorite uncle. He talks with his hands, often tapping the table in front of him for effect, and favors a green knit kippah and whimsical ties—Snoopy sometimes, graphic flowers the day we met at Lewin & Lewin’s modest offices in downtown Washington. The conference room there is haphazardly decorated with framed courtroom sketches, black-and-white Adrian Bonfils photographs of Jerusalem from the late 1800s, and an antique Amsterdam map labeled “Iudea et Terra Sancta.” Another wall holds a version of the Lawyer’s Prayer, in Hebrew and English, with a citation from Deuteronomy: “Justice and only justice thou shalt pursue.”

Continue reading: Supreme Court clerkship, Bobby Kennedy’s DOJ

Allison Hoffman is a senior writer for Tablet Magazine.