Jerusalem status back at high court

Jerusalem status back at high court

Local lawyer part of team arguing for 'Israel' location on passport

Chaim Kagedan with Nathan and Alyza Lewin as the Zivotofsky family speaks with the press at t htehe U.S. Supreme Court. Dr. Steven Kagedan

When the Supreme Court heard the Zivotofsky v. Kerry case last week, the legal team arguing for 12-year-old Menachem Zivotofsky’s right to have “Israel” designated on his passport as his place of birth included Chaim Kagedan, 32, of Teaneck.

The Harvard-educated attorney got his first taste of presenting cases before actual judges as a teenager on the mock trial team of the Torah Academy of Bergen County. He helped the team advance to the state semifinals, a significant milestone in a fiercely competitive program.

“I learned that the skills I have are well suited for things a lawyer needs to do, especially presenting to a jury and judge,” he said. “The experience encouraged me to feel that law was a profession that I wanted to seriously consider, and it continued to feel like the right path as the years went on.”

Mr. Kagedan was a research assistant to Professor Alan Dershowitz in his first year at Harvard. The following year, Professor Dershowitz recommended him to Nathan Lewin, the prominent Washington lawyer handling the Zivotofsky case along with his daughter, Alyza Lewin.

The father-daughter attorney team was representing Menachem Zivotofsky and his parents in their suit against the State Department, which had refused to allow Jerusalem-born Menachem’s passport to read “Israel” as his place of birth, despite a Congressional statute affording this right. Instead, it reads simply “Jerusalem.”

Then-President George W. Bush questioned the constitutionality of the statute when he signed it in 2002 – the year Menachem Zivotofsky was born, claiming that it would interfere with the president’s authority to determine the terms on which to recognize foreign states. The Obama administration raised the same objection.

As such cases tend to do, the Zivotofsky lawsuit has been bouncing around different levels of the legal system for years. Mr. Kagedan’s initial research for the Lewins related to the justiciability of the suit (also known as the “threshold issue”), which eventually was affirmed by the Supreme Court the first time it heard the case, in November 2011.

“After the Supreme Court ruled in our favor, it went back down to the court of appeals for analysis on the merits of the issue, and they ruled against us in favor of the executive branch,” Mr. Kagedan said. “Then the Supreme Court said they’d hear the merits of the case.”

In the meantime, he had finished law school and started his career. After spending several years with the firm Davis Polk and completing clerkships with a federal district court judge and a federal appellate judge, in October 2013 he joined the New York branch of the Washington-based law firm Venable. But he had stayed in touch with the Lewins and was following the progress of the Zivotofsky case.

“When I saw in April that the Supreme Court issued a notice that it would hear the case again on its merits, I contacted Nat, and he said he’d love my help.”

He received permission from Venable to work on Zivotofsky v. Kerry, so long as he did not neglect his billable work for the firm. “That was a bit challenging,” said the father of two. “I worked late nights in the past few months so as not to give short shrift to any of my obligations.”

He co-authored and edited the briefs submitted to the Supreme Court, and spent hours in phone and email conversations with Nat and Alyza Lewin to determine strategy. As the court date came closer, he traveled to D.C. to participate in the practice run for the oral arguments – “what to say, what not to say, what to anticipate from the judges.”

The Secretary of State was maintaining that the president has sole authority to recognize sovereign states and therefore can overrule Congress on this matter. In response, the three lawyers argued that printing the word “Israel” under the place-of-birth designation on a passport at someone’s request does not constitute an act of recognition of a foreign sovereign.

If that argument were to be rejected, they had an alternative argument ready: “Even if you do say it constitutes a formal act of recognition, the president does not enjoy sole recognition authority, but rather shares that power with Congress,” Mr. Kagedan said. “So Congress had an absolute right to pass this law.”

The proceedings left observers with the impression that the court was split along conservative/liberal lines on the case. Mr. Kagedan pointed out that over the course of several months – a decision must be rendered by June – “there is tremendous back-and-forth between the justices, and opinions can be changed or modified.” Still, he expressed cautious optimism, saying “we think we have a pretty good chance of getting the five votes we need.”

Regardless of how the decision comes down, there is hometown pride in Mr. Kagedan’s role in the historic case.

“Chaim was an unusually smart student who very early was driven to join the mock trial team and of course excelled,” said Yigal Marcus of Teaneck, who coaches the Torah Academy team – and has done so for 21 years. “I am not surprised he has risen to this level, and we’re very proud of any contribution we made to his development as a successful attorney.

“It’s really nice seeing the fruit of the labor we put into training these kids and instilling them with passion and determination in pursuit of something great.”

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