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June 10, 2015 1:09 pm

The New York Times vs. Israel

avatar by Jerold Auerbach

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New York Times building in New York. Photo: Haxorjoe.

New York Times building in New York. Photo: Haxorjoe.

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.

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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.

Jerold S. Auerbach is a frequent contributor to The Algemeiner.

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  • Mickey Oberman

    This is one of Obama’s very, very few victories after almost two full terms as president.
    It is a minor victory in his perpetual attempts to tear Israel apart.
    What a precious friend he has proven himself to be!

    Mule Face can now keep all people born in Jerusalem out of his, thanks to him, disintegrating USA. He must be whinnying in his oats this morning.
    Israel should refuse to allow its representatives or citizens permission to enter the American embassy which is now unquestionably enemy territory.
    To use a favourite American expression, “It should play hardball.”

    Since the US refuses to acknowledge that Israel is a sovereign
    state and not one of the American states that are controlled by the Obama boys and girls Israel might assume that The District of Columbia, not being a state, it is not part of the United States of America. It is an oligarchy ruling over the true fifty states.
    Mickey OPberman

  • NCS

    Jerusalem is the capitol of Israel. G-d decided that a long time ago. Jerusalem is the City of David.

    • Kris Kristian

      I hope that those 3 Jewish juddes will remember what GOD said.
      ‘I WILL BLESS THOSE WHO BLESS MY PEOPLE ISRAEL. I WILL CURSE THOSE WHO CURSE MY PEOPLE, ISRAEL”
      I wonder if thiose 3 judges can sleep peacefully at night.

  • Howard Jaeckel

    To put it mildly, I’m no fan of either Obama or the way the New York Times covers Israel. But characterizing Justices Ginsburg, Kagan and Breyer as “Court Jews” based on their decision in this case is both silly and offensive.

    There’s a reason why “Justice” is represented by a blindfolded figure. She’s not supposed to see or consider who the parties are, but only to neutrally apply the law. The suggestion that Jewish judges might rule “for Israel” or for Jewish plaintiffs out of ethnic loyalty would be considered anti-Semitic if it appeared in another publication.

    How the Constitution or a statute should be applied to particular facts is not always easy to decide. That’s why the Supreme Court’s decisions are usually not unanimous. Although judges, being human, succumb all too often to the temptation of letting their policy preferences influence their legal interpretations, there is no basis for saying that either the majority or the dissenters did so in this case. Sound arguments can be made on both sides of the question of whether the Constitution gives the president exclusive authority over the matter in issue.

    This was not a ruling “against Israel,” as the Times’ headline wrongly suggested. It was a decision on a legal issue that happened to be presented in the context of facts that INVOLVED Israel.

  • pat haley

    This Stinks to high heaven, the LORD will get U.S for this

  • I eagerly look forward to the day when Jews finally wake up and STOP BUYING newspapers that are relentlessly anti-Israel and anti-Jewish (for example, The New York Times and The Guardian of Manchester and London).

    I believe that Jews who purchase relentlessly-anti-Israel newspapers (like The New York Times) will be condemned on the Great Day of Judgment [Yom HaDin] for their disloyalty, even if they were pious Orthodox Jews.

  • Lynne T

    Talk about a Kafkaesque situation.

  • Janyce C. Katz

    Thank you for this article! The New York Times’ editorial focused on applauding the Supreme Court’s decision in Zivotofsky based upon the idea that Jerusalem is “a most vexing problem” and, for that reason, best left as a city without a country and how the law triggered the “mere possibility of misrepresentation.” Leave aside questions as to what the words “with the Advice and Consent of the Senate” in relation to making treaties means, especially when combined with the appointment of ambassadors in Paragraph two of Section 2 of Article II of the U.S. Constitution as well as the issues about the Congressional powers in Article I Sections 7 and 8 of the same document. The President signed a law, the law was enacted and then the President argued his constitutional powers made a portion of the law relating to Jerusalem unconstitutional. The majority of the Court agreed about the strength of the President’s power to recognize nations, and that ends that.
    Except, the problem of Jerusalem is only “a most vexing problem” for those who do not know history, or those who do not believe a country called Israel, founded by Jews, should exist. The history of Jerusalem is in the Bible, in Josephus, in commentators, and in documents showing the purchase of land during the Ottoman empire, the British protectorate and thereafter. It also shows that after partition, the war declared by the surrounding countries with the goal of pushing the Jews into the ocean and reclaiming all of the territory, ended with a victory for Israel and a division of Jerusalem into two parts, one part of which then held by Jordan which forbade Jews from entering. A second war, provoked by Gamal Abdul Nasser, then President of Egypt and in control of the Sinai and Gaza, resulted in Israeli capture of the holy sites of Jerusalem. The city, united, then became open to every religion, with Jordan retaining control over the holy site of the Jewish temple/ Moslem mosque. Thus, legally, wishes of losers aside, Israel controls Jerusalem. Israel also decided that Jerusalem would be its capital. It has been the capital for more than sixty years now and, in the Bible, for centuries.
    The focus of the New York Times editorial was on the statelessness of Jerusalem, ignoring the reality of control of the territory, arguing that if Israel’s control over Jerusalem was recognized, there might not be peace. But, by denying the real history, the NY Times editorial helps to make peace even less possible. The going line now in certain circles is that the weakness of the Palestinian people means that they cannot negotiate with the strong, power-holding Israelis and get any kind of a fair deal. Hence, they must get other powers to push Israel into a solution. Another historical fact changed that plays into this inability to make peace is why the 1967 war started. It was not Nassar who wanted to build his nationalism on the destruction of Israel. In twisting history to say that Israel in conjunction with the US started the 1967 war in order to grab territory, passions are inflamed. It becomes the colonial, imperial power that started the 1967 war and cannot let go of the territory of the suffering, subjected others.
    Forgotten are the attempts to make peace that resulted in no action on the other side, or of a period of time between the end of the 1967 and when settlements on the West Bank began to be built, after 1973, I believe, a time during which the countries around Israel did not ask for peace. One could also point to Israel’s return of Sinai to Egypt when Egypt agreed to peaceful relations and contrast it with the lack of peace even with multiple concessions Israel was willing to make when Clinton negotiated and other times. Some involving parts of Jerusalem, to make peace, all of which were rebuffed. One hears of the weakness of the Palestinians and their inability to make peace because of the might of the Israelis, the unequal power oppressing them. Facts like the Palestinian payment of families of those they call martyrs or attempted martyrs and the honoring of those who murdered Jews in restaurants, buses, etc. encouraging others to follow the footsteps of the heroes, these facts are forgotten. History is obliterated.
    Almost fifty years after Jerusalem was united, the failure to recognize Israeli control over what it deems to be its capital city is only another way of denying Israel the rights every other sovereign nation has. Whether this decision is solely that of the US President to maintain some sort of warped “neutrality”, ignorance of history, belief in a distortion of historical facts found in some books and on the Internet, I don’t know. I just know Jerusalem should be recognized as the capital of Israel, and whether or not part of it ever becomes part of another country or independent should depend on treaties negotiated by Israel with others, not treaties imposed on Israel based upon imaginary dreams that such actions will create peace throughout the Middle East.

    Except for the problem of history in which part of Jerusalem came under the control of Israel in 1948, after a war started by other nations hoping to push all the Jewish settlers into the Mediterranean Sea. The other part of Jerusalem was captured by Israel after it proactively fought a war to preserve itself in 1967.
    Almost fifty years after Jerusalem was united, the failure to recognize Israeli control over what it deems to be its capital city is only another way of denying Israel the rights every other sovereign nation has. Whether this decision legally is solely that of the US President to maintain some sort of warped “neutrality”, ignorance of history, belief in a distortion of historical facts found in some books and on the Internet, I don’t know. I just know Jerusalem should be recognized as the capital of Israel, and whether or not part of it ever becomes part of another country or independent should depend on treaties negotiated by Israel with others, not treaties imposed on Israel based upon imaginary dreams that such actions will create peace throughout the Middle East.
    I thought I submitted this last night, but maybe not. So, here it is.

    • Ruth Alvarez

      ive been trying to understand this issue of Jerusalem a little bit better. I understand it from a biblical perspective but your points made it much clearer for me. Thanks!

  • howard schaerf

    the 3 jewish jurists had ample coverage from the arguments posited by the dissenters the 3 court jews mustface the judgement of dejudiazing the historic patrimony of all jews everywhere

    • howard schaerf

      reply stands

    • Kris Kristian

      Those three judges are like Judge Goldstone who sided with Hamas and accused Israel of war crimes.
      He later retracked his finding.
      Now, a large military visit to Israel, found that Israel did more than was expected of any army in a conflict. These were top generals from various counries wih no tie to Israel.

      Hopefully, those judges will ,one day wake up and admit that they made a terrible error in judgement.
      Or were they taking orders from Obama?

  • Meron Medzini

    While some of the comments on the New York Times article regarding the Jerusalem decision are cogent, I see no reason to insult the three Jewish Supreme Court Judges by calling them “Court Jews”, a term that has has a very pejorative connotation.

    • Mickey Segal

      Calling them “Court Jews” was a funny line, similar to those who play basketball in the Supreme Court building referring to having played in “the highest court in the land”.

    • Kris Kristian

      so what are?if not “court Jews”?

  • Lauren Goldman

    Champagne all around, at the New York Arab Times. Another, of an increasing number of reasons why I will not miss this country. El Al, one way, as soon as possible.

    • Alan-Merida

      Yes, indeed perjorative, amply and succintly describing “our” liberal left “Jewish” origined justices.

      As for Mr. Cohen’s comment, urging Jewish (and really, any one of good conscience) to avoid purchasing the NYTimes and its ilk (e.g., The Guardian, Ha’aretz), I avoid even clicking on a Google News article if I see the source is tainted, that is, from the NYTimes…

  • Janyce C. Katz

    Thank you! The New York Times’ editorial focused on applauding the Supreme Court’s decision in Zivotofsky based upon the idea that Jerusalem is “a most vexing problem” and, for that reason, best left as a city without a country. The editorial stated that the Court overturned law had triggered the “mere possibility of misrepresentation,” and for that reason, had to go. The Court held that the President has the power to decide which countries to recognize and when to accept a country controls territory. The passport issue pales in comparison to this major determination. Leave aside questions as to what the words “with the Advice and Consent of the Senate” in relation to making treaties means, especially when combined with the appointment of ambassadors in Paragraph two of Section 2 of Article II of the U.S. Constitution as well as the issues about the Congressional powers in Article I Sections 7 and 8 of the same document. The President signed a law, the law was enacted and then the President argued his constitutional powers made a portion of the law he signed into law relating to Jerusalem unconstitutional. The majority of the Court agreed about the strength of the President’s power to recognize nations, and that ends that, at least for now.
    Except, the problem of Jerusalem is only “a most vexing problem” for those who do not know history and are easily confused by misinterpreted facts, or those who do not believe a country called Israel, founded by Jews, should exist. The history of Jerusalem as the major center of the Jewish state is in the Bible, in Josephus, in commentators, and in documents showing the purchase of land during the Ottoman empire, the British protectorate and thereafter. It also shows that after partition, the war declared by the surrounding countries with the goal of pushing the Jews into the ocean and reclaiming all of the territory, ended with a victory for Israel and a division of Jerusalem into two parts, one part of which then held by Jordan which forbade Jews from entering the city’s holy sites. A second war, provoked by Gamal Abdul Nasser, then President of Egypt and in control of the Sinai and Gaza, resulted in Israeli capture of the holy sites of Jerusalem. The city, united, then became open to every religion, with Jordan retaining control over the holy site of the Jewish temple/ Moslem mosque. Thus, legally, wishes of losers aside, Israel controls Jerusalem. Israel also decided that Jerusalem would be its capital. It has been the capital for more than sixty years now and, as noted above, in the Bible for centuries.
    The focus of the New York Times editorial was on the necessity of keeping Jerusalem stateless, to make peace. This ignores the reality of control of the territory and history. But, by denying the real history, the NY Times editorial helps to make peace even less possible. Why do the Palestinians need to make concessions to Israel when the nations of the world will help them get all that they want. The line now circulating is the weakness of the Palestinian people means that they cannot negotiate with the strong, power-holding Israelis and get any kind of a fair deal. Hence, they must get other powers to push Israel into a solution. Maybe even the UN, if the French put a resolution in during the fall months, after the Iranian nuclear agreement is concluded. What kind of peace is that? Or is it just giving the Palestinians pieces of Israel until they can claim the whole state. Another historical fact changed is why the 1967 war started. It was not Nasser who wanted to build his nationalistic empire on the destruction of Israel or at least the threat of that. In twisting history to say that Israel in conjunction with the US started the 1967 war in order to grab territory, passions are inflamed.
    Forgotten or minimized out of existence with these new twists in the historical records are the attempts to make peace that resulted in no action on the other side, or of a period of time between the end of the 1967 and when settlements on the West Bank began to be built, after 1973, I believe, a time during which the countries around Israel did not ask for peace. One could also point to Israel’s return of Sinai to Egypt when Egypt agreed to peaceful relations and contrast it with the lack of peace even with multiple concessions Israel was willing to make when Clinton negotiated and other times. Some involving parts of Jerusalem, to make peace, all of which were rebuffed. One hears of the weakness of the Palestinians and their inability to make peace because of the might of the Israelis, the unequal power oppressing them. Facts like the Palestinian payment of families of those they call martyrs or attempted martyrs and the honoring of those who murdered Jews in restaurants, buses, etc. encouraging others to follow the footsteps of the heroes, these facts are forgotten.
    Almost fifty years after Jerusalem was united, the failure to recognize Israeli control over what it deems to be its capital city is only another way of denying Israel the rights every other sovereign nation has. Whether this decision is solely that of the US President to maintain some sort of warped “neutrality”, ignorance of history, belief in a distortion of historical facts found in some books and on the Internet is not clear. Jerusalem should be recognized as the capital of Israel, and whether or not part of it ever becomes part of another country or independent should depend on treaties negotiated by Israel with others, not treaties imposed on Israel based upon imaginary dreams that such actions will create peace throughout the Middle East.

  • Uriel

    I cannot see what jurisdiction the Supreme Court of the United States has to determine whether or not Jerusalem is the capital of the State of Israel. the anxiety of President Obama not to offend Israel’s enemies is well known, and is reflected in the policy of the State Department, as exemplified by this absurd ruling.

    • Kris Kristian

      talking about the US state Department.
      I hope that the US Jews remember who Hilary Clinton is, and how she treated Netanyahu at Anapolis, and how she “scolded”Netanyau on the phone for more than 30 minutes.
      Please keep that witch far away from the White House,
      She is a great danger to Israel. She lied to the NY Jews to vote for her for the senate. Once in the senate, she “forgot” her promice to the NY Jews.
      Hilary Clinton is a liar.
      She will be worse than Obama when it comes to Israel.

    • Kris Kristian

      The NYT has a policy. ‘SCREW ISRAEL. THE MORE ANTI ISRAEL IT CAN BE, THE MORE NEWS PAPERS IT WILL SELL”
      How many Jews are there in NY? And how many Muslims?
      So, the Muslims majority wins.

  • nelson marans

    With their obvious bias against Israel, The New York Times has become the American version of Al Jazeera. Its continuing hostility towards Israel and its bowing to President Obama qualifies it not for the title of “All the news that fits to print” but instead as the propaganda wing for Fatah and Hamas.

  • Robert Sklar

    But it is strictly a separation of powers issue. The fault lies with the Presidents for the last 67 years, not with the Supreme Court, but . This is a wake up call to anyone who believes that Jerusalem is Israel. Lets see how, and if, this issue enters the 2016 Presidential election.

  • Phil Cohen

    It may be the height of naïveté, but it seems to me when the Supreme Court makes a 6-3 decision, it’s a pretty definitive decision. If it gives Obama a particular boost, that’s too bad. And if it gives the Palestinians something to boast about, that’s too bad, too. But, heck, 6-3 is pretty clear, you know?

  • Martin Bookspan

    I have done so previously, and I repeat again: Every Jew should immediately cancel his/her subscription to the nauseous “Grey Lady”of journalism and BOYCOTT (yes, we can make good use of that word!) every advertiser in that rag……

  • Fred

    The old anti Semitic dogma still persist. Jews are expected to be subservient to the capriciousness of any upstart, in accordance to the church doctrines and political expediencies. Jerusalem has become again the football of nations that have not come to terms that Israel has become a sovereign nation and Jerusalem was always its capital. Arab squatters are the darlings of EU & Obama , a aying mob.

  • Fritz Kohlhaas

    I can see the anti-Israel crowd and the Jew-haters celebrating! Bastards!

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