Nathan Lewin

Donald Trump’s chance to be a hero in Jewish history

The president can transform his legacy by using his exclusive power to change US policy on Jerusalem's status

Jewish opinion of President Trump is turning very hostile. Thursday’s New York Times carried a front-page headline that reads: “Rabbi Groups Shun President In Sharp Terms.”

Whether an American president acts decisively and instinctively at a critical moment to support a Jewish cause determines how he will be remembered in Jewish history books. Franklin Delano Roosevelt led the world’s triumph over Hitler’s Nazi Germany, but his administration’s failure to bomb the rail-lines to the Auschwitz death camp and his abandonment of the Jewish refugees on the doomed S.S. St. Louis have tarnished his place in Jewish history.

President Woodrow Wilson — now denounced for his outspoken racist opinions — will always be glorified in the history of American Jewry because he had the courage to be the first to appoint a Jew to the United States Supreme Court. Less than one month after the January 1916 unexpected death of Supreme Court Justice Joseph Lamar, Wilson seized the opportunity to announce that he would nominate for the vacancy Louis Brandeis, a highly controversial Jewish litigator opposed by many anti-Semitic national personalities.

Harry Truman did not conceal his distaste for Jews. He acknowledged to a Jewish reporter that “no Jew has ever been” in his Missouri home, and Truman biographies report his anti-Semitic remarks. Yet his memory is celebrated in Jewish history because on May 14, 1948, he peremptorily rejected the advice of Secretary of State George Marshall and other White House foreign-policy advisers, and seized the opportunity to become the world’s first national leader to recognize the newly created State of Israel.

Abraham Lincoln is America’s greatest president because he preserved the Union, emancipated black Americans, and eradicated slavery. Lincoln also has a cherished place in American Jewish history because he promptly repudiated and overruled General Ulysses Grant’s infamous December 1862 anti-Semitic directive. Grant believed Jews to be unprincipled cotton speculators with “no honest means of support” and ordered that they be expelled. Less than one month after Grant issued “General Order No. 11,” President Lincoln directed him to rescind it.

Grant’s reputation in American Jewish history is blemished by this one intemperate act. When he was president, Grant appointed more Jews to government positions than any predecessor, and he demonstrated substantial support for Jewish causes and institutions. But only historians know him as a friend of the Jews.

Richard Nixon’s anti-Semitism is amply documented not only in the published transcripts of his Oval Office conversations but also in biographies written by insiders in the Nixon White House. Nixon seized an opportunity, however, to polish his image in Jewish history by dispatching critically needed military aid to Israel. He directed a huge airlift at the inception of the Yom Kippur War, contrary to the advice of Henry Kissinger and other foreign policy experts. Golda Meir extolled Nixon’s decisive action: “For generations to come,” she said, “all will be told of the miracle of the immense planes from the United States bringing in the materiel that meant life to our people.”

Bill Clinton professed to be a friend of the Jewish people and of Israel. His oration at Yitzhak Rabin’s funeral was memorable. But many Israeli Jews recall that he was the president who missed a golden opportunity. Yielding to pressure from the military and intelligence establishments, Clinton reneged on the promise he made to Prime Minister Netanyahu at the Wye Plantation in October 1998 to commute Jonathan Pollard’s sentence and let Pollard accompany Bibi on Netanyahu’s flight home.

President Trump now has a chance to become a venerated figure in American Jewish history. Until now no American president — including Harry Truman and the successors who claimed to be friends of Israel — has recognized that the City of Jerusalem is part of the State of Israel. American foreign policy since the establishment of Israel in 1948 has declared that Jerusalem is a city outside the borders of any country.

On this account, the US Supreme Court struck down, in its June 2015 decision in Zivotofsky v. Kerry, a law that directed the State Department to list “Israel” as the place of birth of American citizens born in Jerusalem. Five justices of the Supreme Court said that the president has “the unilateral power to recognize new states” and that this power includes acknowledging “their territorial bounds.” American citizens born in Jerusalem, said the Court majority, were “according to the president . . . not born in Israel.” This is because “[a]s a matter of United States policy, neither Israel nor any other country is acknowledged as having sovereignty over Jerusalem.”

Who has the power to alter this “matter of United States policy?” Only an incumbent president. The Supreme Court majority summarized the constitutional rule: “[T]he power to recognize foreign states and governments and their territorial bounds is exclusive to the presidency.”

Just as Truman is revered in Jewish history books as the president who first recognized the State of Israel, Trump can be remembered as the president who restored Jerusalem to Jewish sovereignty. All it takes is a presidential signature on a document that says that the City of Jerusalem, as defined by the State of Israel, is recognized as within the “territorial bounds” of Israel. No American court will have the power to question or delay the effect of this presidential declaration; it has been ratified and approved by a majority of the current Supreme Court — Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan.

Nathan Lewin is a Washington lawyer with Lewin & Lewin, LLP, which represented Menachem Zivotofsky pro bono in a 12-year litigation that was heard twice by the Supreme Court of the United States.

About the Author
Nathan Lewin is a Washington, D.C., attorney who specializes in religious freedom cases before the US Supreme Court.
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