A deep sigh of editorial relief was discernible at The New York Times following the Supreme Court decision in Zivotofsky v. Kerry, the Jerusalem passport case. Upholding the exclusive constitutional power of the President to recognize foreign governments, the Court struck down a 2002 law stipulating that upon request “Israel” would appear as the place of birth on the passport of any American citizen born in Jerusalem. Its 6-3 ruling rejected the appeal by the American parents of Jerusalem-born Menachem Zivotofsky, who wanted “Israel” to appear on their son’s passport.
The case might be framed merely as a separation of power issue, raising a perennial question in American politics: who makes foreign policy, Congress or the President? But its implications for perceptions of Israel’s legitimacy were inescapable. For Times editors the decision was especially welcome. Ever since Adolph Ochs became its first Jewish publisher nearly 120 years ago, preparing the way for the Sulzberger dynasty that followed, Zionism and Israel have been a source of deep concern lest American Jews confront the dreaded accusation of divided loyalty for supporting the idea, and then the reality, of Jewish statehood.
“To whom does Jerusalem belong?” asked the Times editorial. It correctly noted that no American president since the birth of Israel in 1948 has ever recognized its sovereignty over the ancient holy city. To the editors, this blatantly prejudicial policy evidenced “neutrality.” Concerned about any abridgment of presidential power (at least while President Obama resides in the White House), the editorial sharply criticized the “unacceptable purpose” of the 2002 law: to recognize even West Jerusalem, within the boundaries of Israel ever since its establishment in 1948, as its capitol. The editors praised the Court’s “prudent response” and the denial of Jewish claims to the city that are memorably embedded in Psalm 137: “If I forget thee, O Jerusalem let my tongue cleave to the roof of my mouth…” They failed to mention that the Court’s three Jewish members – Stephen G. Breyer, Ruth Bader Ginsburg and Elena Kagan – voted to make the majority, perhaps inadvertently displaying themselves as Court Jews.
The refusal of the Court, and the Times, to recognize Israeli sovereignty over any part of Jerusalem may be the most striking aspect of the judicial ruling. By focusing exclusively on the separation of powers issue, as Justice Anthony Kennedy did in his majority opinion, the Court evaded that nettlesome problem, incurring praise from Times editors. Yet the issue of Jewish sovereignty at least somewhere in Jerusalem is too deeply embedded in the case to ignore. As Jonathan Tobin wrote in his Commentary blog (June 8) President Obama, with Supreme Court backing, can now “pretend that . . . Jerusalem isn’t the capital of Israel or even part of the Jewish state.” Indeed, the Times page 1 headlines noted that the Justices “side with the White House” in their “decision against Israel.” Nothing could please the Times more.
Supreme Court correspondent Adam Liptak, turning to reaction to the decision in the Middle East, gave primacy to the comment of chief Palestinian negotiator Saeb Erekat, who praised the decision for sending “a clear message to Israel that its policies of colonization are null and void.” But Jerusalem Mayor Nir Birkat said pointedly: “Just like Washington is the capital of the United States, London the capital of England and Paris the capital of France, so Jerusalem was and always will be the capital of Israel.”
Ari Zivotofsky was understandably disappointed with the rejection of his son’s claim. “It greatly disturbs us,” he said, “that the United States does not recognize Jerusalem as part of Israel.” Lawyers Nathan and Alyza Lewin, who argued the case as it wound its way through the judicial labyrinth for more than a decade, criticized “the absurd position that no country is sovereign over Jerusalem, and that no part of the city, including the western portion of Jerusalem, is in Israel.” As a lawyer might say: res ipsa loquitur.