By Nathan Lewin
For almost 25 years after the resignation of Abe Fortas in May 1969, the Supreme Court had no Jewish Justice. And then, in June 1993, President Bill Clinton restored the “Jewish seat” by appointing Circuit Judge Ruth B. Ginsburg. I had argued more than a dozen cases to the court in that quarter century and was delighted that we would again have a representative on the supreme bench.
Reading what Clinton said when he met the press after the Ginsburg nomination was announced made me proud. He reported that in his meeting with Judge Ginsburg, he had discussed with her the case that I had brought for an Air Force psychologist who had wanted to wear a yarmulke with his military uniform but military regulations prohibited wearing any headgear indoors. I filed a federal lawsuit claiming that denying him the right to wear a yarmulke was unconstitutional. Although I won the case before District Judge Aubrey Robinson, the D.C. Court of Appeals had reversed the judgment and held that the military regulation overrode my client’s religious observance.
This was particularly painful because one of the appellate judges ruling against the yarmulke was Abner J. Mikva, formerly the head of the Jewish Caucus in the House of Representatives.
After my defeat before the three judges, I asked the full D.C. Circuit Court of Appeals to rehear the case en banc — before all the active circuit judges. Only three of the court’s judges agreed to do so. One was Kenneth Starr, who wrote a stirring defense of my client’s right to practice his faith in this most unobtrusive way. The two other judges who voted to rehear the case were Antonin Scalia and Ruth Ginsburg — both of whom were later elevated to the Supreme Court. By a 5-to-4 vote, the Supreme Court, with no Jewish justice, held, before Scalia and Ginsburg were on the court, that there was no constitutional right to wear a yarmulke in the military. (With active support from Rep. Stephen Solarz, Democrat of New York, we reversed that regulation by statute.)
The president told the media in 1993 that he admired Judge Ginsburg’s support of the right to wear yarmulke, and it influenced his decision to appoint her. And in the following year, the International Association of Jewish Lawyers and Jurists (IAJLJ), an organization formed by Justice Arthur Goldberg and Israeli Supreme Court Justice Haim Cohn, agreed that its annual Pursuit of Justice Award should be conferred on Ruth Ginsburg.
I was then president of the American Section of the IAJLJ and was to preside at the ceremony. The Supreme Court Marshal’s Office agreed that we could have the event in the Court Room itself. I was confronted with a challenge.
What could we present to the justice as a token and memento of the occasion? Her biblical name and the timing of the ceremony provided the answer. It was held in the spring, around the time when the festival of Shavuot is celebrated and the book of Ruth is read in synagogues.
We framed a 17th-century engraving of Ruth gleaning in the field (with a caption in six languages) that I had in my collection of biblical engravings. We added a volume of the book of Ruth with English translation and commentary that I ordered specially from Meir Zlotowitz, z”l, the founder of ArtScroll. And I asked Judge Mikva to make the presentation.
The event was a rousing success, and RBG called it “the best evening away from my desk I have had this season.” Her note, dated May 30, 1995, called the engraving “a treasure” that she could see at home “each morning and evening.” She added, “And the Book of Ruth is the perfect accompaniment.” The following year we gave the IAJLJ Award to the second Jewish Justice appointed by President Clinton: Stephen G. Breyer. Justice Ginsburg sent a note apologizing for her absence and explaining that on the day of the event “I will be getting a new front tooth, not for Hanukkah, but to replace a broken one.” With her typed letter came a handwritten note: “I treasure my award from last year — the engraving is extraordinary, and the Book of Ruth, something to share with my grandchildren.”
I had been visited by the FBI when a background check was being done for Ruth Ginsburg’s Supreme Court appointment. I asked the agents why I was selected for this honor, and they replied that membership in the IAJLJ and the American Jewish Congress’ litigation arm were the only Jewish entries on her resume. Circuit Judge Ginsburg had called me when I was chosen to head the American Section of the IAJLJ and volunteered to speak at my installation. I don’t remember what she said, but I am sure it was also “the best evening away from my desk.”
One final note attesting to Ruth Ginsburg’s identification with Judaism after she became a justice. In my files, I have a note from my secretary saying that Justice Ginsburg’s chambers had called to ask whether I could instruct them how to affix a mezuzah.
Nathan Lewin, a Washington attorney, has engaged in trial and appellate litigation in federal and state courts for more than 55 years.