Interview with Nathan Lewin
Nathan “Nat” Lewin is a lawyer who has argued 28 cases before the Supreme Court, including a number of seminal cases regarding religious liberty. He clerked for Justice John Harlan.
No Yiddish?
Contents
Max Raskin: I wanted to start was with your childhood — what was your mother language?
Nathan Lewin: Well, I came over to the United States in 1941 from Japan, first with my father alone because my mother was still in Kobe with her mother and her brother who had escaped with us from Poland. When my father and I came to the United States by boat from Yokohama to San Francisco, he had acquaintances he communicated with when he was in Poland. A leading one was Rabbi Eichenstein of St. Louis.
I was doing very well in the United States learning English. I would say to people, "I'm five-years-old and I know six languages." I knew, at that point, Polish, I knew Hebrew because I was raised in a religious atmosphere, I knew Dutch because my mother's native language was Dutch, I knew German because German was the language that my parents spoke to each other, and I knew some Japanese, from the time that I was in Japan. And my sixth language was English.
MR: No Yiddish?
NL: Not really. My father was a Yiddish writer. My parents did not speak Yiddish to each other because my mother had not spoken Yiddish. I did speak Yiddish with my grandmother when she finally arrived in the United States after the war. She was, my mother's mother, and she's the only grandparent who survived the war. The other three were murdered by the Nazis. But my grandmother went from Kobe to Java, as a Dutch citizen. She spent the war years as an interned civilian under Japanese control in Java. She came to the United States after the war and died not long thereafter. She lived with us and I spoke Yiddish to her.
MR: Do you remember the people that had an impact on the worldview around you at that time religiously?
NL: I was very young. My father was familiar with a lot of the gedolim of Agudas Yisroel. As a youngster trying to be Americanized in New York growing up, I did not pay a lot of attention to the very important people who my father spoke with. They were in the house at times. My father was on the phone incessantly with them.
MR: Who was he talking to?
NL: Everybody, from Rabbi Aharon Kotler to Rabbi Moshe Feinstein. All the great roshei yeshiva. Of course, my father was very involved during the war with hatzolah efforts, so the names that were very familiar were those people who were directly involved with hatzolah efforts like. Kalmanovitch, and Eichenstein. Eliezer Silver was very close to my father and had frequent conversations with him.
My father did not use the phone to speak about Torah or about learning or about anything like that. He used the phone to speak about saving Jews and how to deal with hatzolah efforts and how to deal with problems that came up after the war, like what to do with Jewish children who have been raised in Christian homes. That was a very important issue for my father.
The Lubavitcher Rebbe
MR: Throughout your life were there any rabbi in particular that you have been closest to?
NL: I can't really say that there was any rabbi who I was particularly close to. I stuck to home, dealt with my father. Rabbi Menachem Kasher davened in our shul; we would see him every shabbos.
MR: How has your religious practice changed over the years?
NL: My religious practice is very much the same as I grew up with and as I learned. I try to communicate that to my children and to my grandchildren.
MR: Did you ever have moments of more or less observance?
NL: No, I think I was pretty even-keeled. I did not go to a very traditional Yeshiva because my mother was more modern and wanted me to go to Ramaz for elementary school, which I did. But after that, I went to Yitzhok Elchanan High School and Yeshiva College. At that point, I decided I wanted to be a lawyer. So I applied to the leading law schools, to Harvard and Yale.
MR: You’re probably one of the few people practicing constitutional law who predates the Supreme Court’s “wall of separation” between Church and State in Everson.
NL: I don't know whether I'm older than the wall of separation. The wall of separation was created, in part, at the instance of the American Jewish Congress and Leo Pfeffer who pushed it on the Supreme Court of the United States — erroneously, I believe, and with wrong premises. They were more concerned, at that time, when Jews were immigrating to the United States, that Jews would send their children to public schools and there would be indoctrination and proselytization.
I’ve thought all my professional life that that was an overblown and wrong premise.
I clerked on the Supreme Court when the New York Regents’ prayer case was decided…
MR: Engel v. Vitale in ‘61?
NL: It was decided in 1962 — I clerked from 1961 to 1962.
I was, at that point, surprised because all the Jewish organizations had claimed that it was clearly unconstitutional to encourage people to recite this non-denominational prayer in New York public schools.
Only the Lubavitcher Rebbe opposed the majority opinion of the Supreme Court and he sent out a letter saying that it was better that everybody should be praying to God and acknowledging their debt to the Almighty than that should be denied. And I appended his letter, many years later, in a brief that I filed in the Supreme Court of the United States. At the time, personally, I was surprised and frankly, I thought he probably was not right.
I had worked with Justice Harlan on his position in that case. Justice Black had originally written an opinion that said that this was unconstitutional, because you couldn't spend a penny for any religious purpose and Harlan disagreed with that. And the court was not going to have a majority opinion if Harlan didn't join it, so Black watered down his opinion and Harlan joined it, and therefore did not issue a separate opinion. But I have a copy of that proposed Harlan separate opinion in my records, but it was never published.
MR: At the time the Lubavitcher Rebbe wrote the letter you disagreed with it?
NL: Well, I was a young Jewish liberal — although Orthodox — and Harlan's rationale was that the state has no business writing prayers, period…I thought that was probably right. And as I matured years later, I came to the realization that probably the Lubavitcher Rebbe was right. It's better that everybody acknowledges God. Just as the words "under God" now appear in the Pledge of Allegiance, I now think it would be a better America if everybody recognized that we live under God and we acknowledge our debt to the Almighty.
MR: Did you have any interaction with the Frierdiker Rebbe?
NL: No, I had no interactions with him.
MR: Do you have any recollections of your meetings with the Lubavitcher Rebbe?
NL: I am asked by nearly every Chabad chassid I meet to please repeat as well as I can — verbatim — exactly the conversations I had with the Lubavitcher Rebbe. I did not take notes. I didn't record those conversations, so I just can't do that. We talked almost exclusively bout the litigation. He had selected me to represent Chabad in the lawsuit over the ownership of the library of the sixth Rebbe, which had been brought over after the war and was stored in the basement of the Chabad House.
MR: So you're literally a Chabad shliach?
NL: Of the Rebbe in that sense, yes.
I came up to New York, and we had conversations. I was willing to have them in Yiddish, but my co-counsel on the case, Jerome Shestack who was also second lawyer in the case, did not know Yiddish. He ultimately became president of the American Bar Association, a very distinguished lawyer and a very fine man. The Rebbe said, "What language should we speak in?" And I replied that it could be Yiddish, but Shestack said, he doesn't know Yiddish. So the Rebbe spoke to us in those conversations in English. There were other times that I met with the Rebbe, not for any extended periods of time, when he talked with me sometimes in Yiddish and sometimes in English.
MR: Do you have any memories of him as a man?
NL: He was a very, very, very noble man…very, very distinguished and very cordial. Notwithstanding the fact that he was idolized by thousands, he was very, very cordial and not haughty in any way.
Jimmy Hoffa and the Daf
MR: Did you study today?
NL: Yes, I do. I can't say that I learn constantly 24 hours a day, but as you can see from the books that are behind me, I have a very, very erudite library so that I can find things when I need them or want them.
MR: Jimmy Hoffa called you "Instant Law."
NL: Oh, you know that…
He did, but not because of my library or because any Jewish learning I had. He called me "Instant Law" because what happened in the case. I joined the Department of Justice after I clerked on the Supreme Court and very soon thereafter was sent to Nashville, Tennessee to be the research arm of a four-man team prosecuting Jimmy Hoffa. There were two fantastic trial lawyers, Jim Neal and Charles Shaffer, and another fellow by the name of Jim Durkin who handled the documents in a case that was really full of documents. And I was the guy who did the legal research, wrote legal memoranda and came up with legal answers.
So what would happen is I sat in court and Hoffa had a team of four lawyers representing him, and these lawyers would jump up and make legal objections. And when they would make their objections, I did not sit at the counsel table, I sat immediately behind it because I did not do any of the actual examining of witnesses in the case. So I would run out of the courtroom, go to the library of the U.S. Attorney, which was one or two floors higher up. But I was an expert at that point in finding cases.
So when the issue came up, I ran out of the courtroom, I ran to the library. I found one, two, three cases that made our point and I would come running back into the court with the books and put them on our lawyer's table. And Jim Neal or Shaffer would stand up and say to the judge, "Well, your Honor, here's this case, here's the citation. It proves that we're right." And the cases were good. They were on point. So Hoffa decided on that basis that I was "Instant Law" and he gave me that name.
MR: Today, when you take a book, what do you study? Do you study Gemara? Tanach?
NL: It really varies. Sometimes, I learn daf yomi — sometimes my wife is so interested in the masechta — especially now in Gittin — that I’ll learn with her. Other times, I may learn something that's relevant to the parsha.
I have a library that includes not only my grandfather's and great-grandfather's sefarim, which frequently have insights into Torah and halacha, but so many other giants of Jewish intellectual labor, and I love to go through them.
MR: What was the last book you picked up?
NL: Well, the last book I looked in was Oznayim L’Torah.
MR: What is the sefer that is closest to you right now?
NL: Well, I happen to have on my desk what is my wife's yichus, which is Yehosef Schwartz who was a great talmid chacham. He wrote Tevuos Haaretz, the modern geography of Israel which was translated into English by Isaac Leeser. So he's got some observations on the parsha and I just happen to have that on my desk. But I have, my grandfather's Ha-Drash Ve-Ha-Iyun — his volume of tshuvot called Avnei Hefetz.
MR: Ever any temptation, has there ever been any temptation for you to make Aliyah and live in Israel full time?
NL: Oh yes, very much. I would very much like to make Aliyah. My wife was wise enough, almost 20 years ago, to say on a trip we made to Israel that she was making Aliyah, so she is an Israeli citizen.
At that point, when she made aliyah, I was at an age when people were urging to me, "You should become a judge on a federal court of appeals." And that idea intrigued me, particularly after years of litigation. I felt that if I made aliyah, that would be held against me. But now it has become bureaucratically very difficult.
MR: I'm sure they would figure out a way to accept you.
NL: I'm not so sure. If you think you'll arrange it, please do that.
MR: I will. I’ll make a note.
NL: Please do that. If you can make that easy for me, you'll be doing a big favor for me and for my whole family.
MR: I will do that.
NL: Okay, I'll hold you to that. That's my pay for appearing on this program.
Curious Yellow, Kiryas Yoel, and Michael McConnell
MR: What are your recollections of Michael McConnell over the years? He just speaks so glowingly of you.
NL: Well, I have to say, I think I take part of the credit for Michael McConnell's expertise because one of the cases that I brought to the Supreme Court early on was a case involving the estate of a man by the name of Thornton and he ended up being my co-counsel in terms of arguing the case. The Solicitor General at the time was very sympathetic to the religious claim and the assistant to the Solicitor General was a young lawyer named Michael McConnell. And he contacted me and he said, "Look, we want to file an amicus brief supporting you." "That's great. I can't possibly lose this case. If I've got the United States with me and the state of Connecticut, this is as sure bet as you can possibly have in the Supreme Court."
MR: But then you guys end up losing 8-1, right?
NL: Yes. We ended up losing. It was a clearly wrong opinion. It proves only that at that point, at that time in history, the Supreme Court was totally hypnotized by the Establishment Clause. Anything that raised the slightest question under the Establishment Clause was suspect. Chief Justice Burger wrote in a horrendous opinion. He said in a footnote that other employees have to take a back seat to Sabbath observers. Now that was ludicrous. The Sabbath observer is never in the driver's seat, but that's what he said because Sabbath observers, under the Connecticut statute, would get off and not be required to work, although the statute didn't say that they had to make a reasonable accommodation.
MR: Michael wanted me to ask you about the Curious Yellow case — he said you have a funny homophonic joke about this.
NL: Alan Dershowitz and I both represented in the Supreme Court of the United States, a film that was then considered obscene in some jurisdictions, although by today's standards it's very modest. It was called "I am Curious (Yellow).”
Many years later I represented Kiryas Yoel.
MR: You're probably the only person who represented both of them.
NL: That's probably right.
MR: Baker v. Carr was a very, very important decision that was decided when you were at the Court. I read somewhere that you said Whittaker resigned because of Frankfurter's pressuring him on this case. Do you have any recollections of Baker v. Carr?
NL: Yes, of course I have recollections of Baker v. Carr. It was one of the most important cases of the year that I clerked.
MR: Probably of the last century.
NL: Maybe. Frankfurter very strongly believed that local elections were a thicket into which the Court should not go. And the two that most totally supported that proposition were Frankfurter and Harlan. There was not that much discussion among the justices. They didn't really meet other than at the conference or in small groups to talk about how the cases should come out. They would communicate by memos, and they only occasionally would drop in and visit. Harlan had very few justices who visited him, although he was open and friendly to all, even to Justice Black with whom he substantially disagreed on things.
But Justice Frankfurter would come in at times into the Harlan’s chambers. And I remember when he would come into our office, he would be active talking to us. He'd stand in the doorway and he'd talk to us. So Frankfurter would, at times, lobby other justices.
One of the Justices whom he did lobby, because he thought quite frankly, he was not intellectually at a very high level, was Charles Evans Whittaker. Whittaker was a justice that the law clerks made a fun of because Whittaker, when he would read his opinions, wouldn't ad lib any part of it. He would read out the text of his opinion and the text notes with "blank blank U.S. Reports blank blank", reciting all that orally from the bench.
So Whittaker was not a great intellectual, but Frankfurter thought he could affect Whittaker's vote in cases like Baker versus Carr or others that Frankfurter thought was important.
Without any advance notice to anybody, Whittaker just submitted a resignation. And Harlan told us, his law clerks, that Whittaker had come in and told Harlan, "John, you ought to take my lead. Doing this job is pretty impossible. I had no problem deciding tax cases, but the constitutional issues would come in and I just get badgered all the time about it." Harlan gave us the impression that Whittaker had told him that the resignation was a way that he took to get out of being badgered by Felix Frankfurter and lectures and spoke to him about how he should vote.
Justice Brennan’s Yarmulke
MR: Were you close with Justice Brennan?
NL: Brennan was the most cordial, open, friendly justice on the Supreme Court at that time. Douglas was hostile, nasty to everybody, including law clerks. Brennan got to know your name. Brennan took a liking to me. I can't say we had social contact. I was never in his house. He was never in my house, but he was very friendly.
MR: Did you help Michael McConnell clerk for him?
NL: No, I was not involved in that. I first met Michael when he was working for the Solicitor General.
NL: So I did not know Michael McConnell before he was an assistant to the Solicitor General. But Brennan was very cordial. And then when I was in private practice and argued cases in the court, he continued to be friendly.
With the yarmulke case, he had written a very strong dissent in favor of Goldman saying that there should be a right to wear yarmulke in the military. After that decision, after we lost Goldman, Congressman Stephen Solarz, with whom I was very close and I drafted a statute that was enacted by Congress.
Senator Goldwater opposed it on the floor of the Senate. And I heard that a Chabad chaplain had worn a yarmulke made of camouflage military material when he served in the military. Trying to get the law enacted, we made copies of that yarmulke and sent it around to the Senate and the Senate then voted in favor of the Yarmulke Bill and it was enacted in the law.
Congressman Solarz wrote a letter to Justice Brennan thanking him for his dissent, telling him that the law had been enacted and enclosing an example of the yarmulke that we had distributed. Coincidentally, just at that time, Brennan was invited to get an honorary degree in Israel.
So he contacted me and asked me to come over for lunch. I came over for lunch. He prepared a fruit salad for me, and we had lunch in his chambers. And he told me that Congressman Solarz had sent him a letter thanking him for his dissent, telling him that the law had been passed and enclosing an example of the yarmulke. He told me that when he got the letter and he saw the yarmulke, he put it on his head just to try it out and then went back to work and forgot about the fact that he was wearing the yarmulke and wore it the rest of the day in the Supreme Court in his chambers.
And when he left the Court and walked out through the secretary's office, his law clerks saw him walking out wearing a yarmulke. They were befuddled, but they were afraid and embarrassed to ask him why he was wearing yarmulke. He went home and it wasn't a couple of minutes that he was at home that his wife, he told me, his wife said to him, "Bill, what do you have on your head?" And he said he felt on his head and there was the yarmulke. He had forgotten that he had it on, but wore it for a good part of the day in the Supreme Court while working. So it was a mazel to have the first justice wearing a Yarmulke in the Supreme Court being a Roman Catholic working there.
Family
MR: So my last question is personal. Your grandson was instrumental in my meeting my wife. He gave her number to the friend who gave it to the person who set us up. So had you not been alive, I never would've met my wife because my friend never would've gotten her number. My question is, what advice do you have for marriage and for raising children?
NL: Well, you've touched on it: Being alive. For marriage, the important thing is to live together happily and with various experiences with your wife. That she has to share in what you are doing and enjoy day-to-day being with you and the two of you being together. That's, I think, the key to choson and kallah succeeding — when they are choson and kallah together for their whole life. And they view each other each day with the same sasson, simcha, gila, rina, ditza, and chedva they had under the chuppah.
MR: What about raising children?
NL: The key to raising children, I think, is to try to be a model. You spend your life with your children, and they see you almost all hours of the day, and children are inclined to emulate what parents do. If you give them good role models, they'll grow up to be children that you can be proud of. That seems to me a key.