Were it not for his sentencing of Julius and Ethel Rosenberg to death by the electric chair on April 5, 1951, Judge Irving Kaufman would be remembered for his accomplishments while serving as Chief Justice on the 2nd Circuit Court of Appeals in New York City—a court, Martin J. Siegel writes in Judgment and Mercy: The Turbulent Life and Times of the Judge who Condemned the Rosenbergs, “generally thought to be the second most distinguished and important in the United States after the Supreme Court.” Indeed, Kaufman would have been known as a champion of the First Amendment to the Constitution and the freedom of the press. He was a jurist seen by the public and described by legal counsel Floyd Abrams (now the subject of a PBS documentary) as “one of the most ardent eloquent articulators of the underlying meaning” of the First Amendment, who had “an abiding belief in the significance of free expression for everybody.”

Sadly, that was not to be. Towering over many of his accomplishments and legal readings, it was the death sentence he handed to the Rosenbergs that has stood out over time. Kaufman feared, as he often said, that the New York Times would declare in his obituary something like the “Judge who gave the Rosenbergs a death sentence has died.” He was not wrong. When he died in 1992, the Times obituary’s very first sentence read “Judge Irving R. Kaufman, who gained national attention in 1951 as the judge who sentenced Julius and Ethel Rosenberg to the electric chair … died on Saturday night in the Mount Sinai Medical Center.”

Martin J. Siegel’s excellent new biography serves as a corrective to those who only know of Kaufman for his Rosenberg decision. That Siegel was one of Judge Kaufman’s last clerks and a lawyer adds to his understanding of Kaufman’s story. Kaufman, who grew up the son of poor Jewish immigrants on the Lower East Side of New York, rose from poverty to wealth and power achieved through hard work, driving ambition, and intelligence. He took little time off, working in his office late into the evening and often during weekends. His family suffered because of it.

Love of Country

Kaufman’s rise from a relatively poor immigrant status to wealth, influence, and power is the story of many immigrants. Kaufman loved America, the life it allowed him to live, and the accomplishments he was able to achieve, despite his parents’ humble beginnings. Unlike most of his peers, Kaufman did not go to New York City’s free institution, The City College of New York. That decision allowed him to escape the contacts he undoubtedly would have had with the large contingent of Jewish student left-wingers, whose influence and presence on the campus was most noticeable. Instead, he chose to go to the Catholic college at Fordham University, and then its law school, which was in the Woolworth Building in Manhattan, near the courts.

He almost immediately made his mark, first by exposing a disability fraud racket, and next, by exposing tremendous fraud in a small drug company that bought the firm McKesson and Robins, whose respected chief, F. Donald Coster, was courted by some Republicans as being presidential material. Diligent work led Kaufman to expose a great con, showing Coster to actually be a well-known swindler named Philip Musica, who had mysteriously disappeared from view after two convictions decades earlier. Kaufman’s legal work soon led to the representation of Jews who had begun their life as poor immigrants, and who had risen to wealth and status. One of the most prominent was Sam Newhouse, the publishing and media tycoon, and another was the country’s most celebrated comedian and the first TV star in the new media of the 50s, Milton Berle.

In private practice, Kaufman sought out well-known government figures who became friends and proved helpful in his ascent, such as Truman’s Attorney General, Tom Clark, and the long-serving director of the FBI, J. Edgar Hoover, to whom he wrote, “in my opinion, you are the greatest public servant of our time.” Through these and other ties, as well as his solid reputation for his legal work, he obtained excellent recommendations. In 1949, President Truman appointed him to New York’s Southern District Federal district court, where he served until 1961, when President John F. Kennedy appointed him to the Second Circuit, once generally thought the most important venue next to the Supreme Court, and where he was to reside for three decades until his death.

It was in this capacity that he was chosen to be the presiding justice in the Cold War espionage case of Julius and Ethel Rosenberg, who were described in the newspapers as spies for the Soviet Union. The Rosenberg’s espionage gave Stalin the “secret” of the atomic bomb and was dubbed “the trial of the century” by J. Edgar Hoover. Every major paper and news broadcast led their front pages and opening stories with coverage of the trial.

With the release of the once-secret Soviet decrypts called The Venona Files in 1995, the hotly contested guilt of the Rosenbergs was fully established, although some continued to raise doubts as to whether Ethel Rosenberg was also a participant in her husband’s spy ring. Many books and articles have appeared on the case and the one I co-authored with Joyce Milton, The Rosenberg File (1983), is credited with offering convincing proof of their guilt, thereby challenging the long-standing belief of many on the left that they were framed up by the FBI. As Siegel writes, “The Rosenberg case deeply divided Americans, inflamed Cold War passions all over the world, and still rates among the most controversial episodes in American law.”

It has long been known that Judge Kaufman participated in highly unusual although not technically illegal “ex parte communication” with the prosecution on the question of whether Kaufman should proclaim a sentence of death after they were found guilty. Siegel reveals that before the trial began, Kaufman already held “secret back-channel discussions with the prosecution team, something he continued throughout the trial.” These were especially held between Kaufman and his friend assistant prosecutor Roy Cohn, who in later years liked to portray himself as the lead Justice Department prosecuting attorney, which was not true.

Siegel concludes that the trial was fair, although Judge Kaufman obviously had prejudged the case and believed they were guilty before the trial even began. And yet he never interfered with their counsel’s defense strategy. He also was correct in how he framed the law to the jury, although he concludes that Kaufman was too eager to intervene in ways that helped the prosecution, such as cross-examining the Rosenbergs himself.

The eventual sentencing, much to his consternation, did not lead to an appointment to the Supreme Court, which was his lifelong personal goal. At the sentencing, Kaufman began by telling the convicted couple that their crime was “worse than murder.” He proceeded to tell them he considered their actions as having caused the “Communist aggression in Korea, with the resulting casualties exceeding 50,000 and who knows but that millions more of innocent people may pay the price of your treason.”

Siegel writes, upon hearing that he was giving them a death sentence, there was “an audible gasp in the courtroom.” However, as one who sat in the public seats with other regular citizens, I only personally remember being “shocked and repulsed.” I agree with Siegel’s judgment that blaming the couple “for the Korean war was ludicrous, and his claim that they had imperiled the very existence of the United States as exaggerated verging on the apocalyptic. Indeed, Justice Felix Frankfurter put it well when he wrote that the Rosenbergs had been ‘tried for conspiracy and convicted for treason.’”

Siegel points to a “tangled complex of motives” to explain Kaufman’s actions during the trial and his animus toward the Rosenbergs. There was the context that the trial took place during the Cold War with the country awash with anti-communism and fear of communists. On a deeper level, Kaufman was a patriot who loved America and believed it had given him and immigrants like his family incredible opportunities. He was hostile to the Rosenbergs, since they too came from the same background, yet eschewed the country by embracing communism and giving the USSR our military secrets.

The second part of Siegel’s biography relates how after his role in presiding over and granting the death sentence to the Rosenbergs, Kaufman—a strong liberal anti-Communist typical of many intellectuals of that era—became a hero to the very liberal and left-wing individuals whose politics he most likely personally despised. However, Kaufman, who ruled to let Beatle John Lennon stay in America and who praised Lennon’s love for the United States, gave the younger generation a rather different perspective of himself.

Advocate of the First Amendment

He also became a judge committed to freedom of the press, even when others sought to prevent newspaper reporters from writing things that could prove harmful to the nation’s interests, especially in foreign policy. Kaufman became a favorite of the editorial board of The New York Times. His ruling decided the Pentagon Papers case in favor of the paper and in opposition to the US Government during the Nixon administration, which sought to restrain its publication. (The Supreme Court followed the Second Circuit by allowing their publication in a 6-3 decision.)

One of the major revelations in his book is the cherished relationship of Kaufman to the publisher of the New York Times, Arthur Ochs (Punch) Sulzberger, and its editorial board, whose editor-in-chief, A. M. (Abe) Rosenthal, bent over backward to court the Judge and to see that nothing they published offended him. As part of the package, Kaufman was allowed to regularly write editorial (later called op-eds) contributions more than once, while regular citizens were limited in the number they could contribute. Kaufman also published at least twelve articles in the New York Times Magazine over the years, itself also highly unusual.

My own experience confirms the paper’s favoritism to Kaufman. In 1979, Sol Stern and I wrote a cover story outlining my conclusion that the Rosenbergs were guilty, that appeared in The New Republic magazine. That article was meant for the New York Times Magazine, and had been accepted, edited, and readied for print by its editor, Ed Klein. The paper paid for all our research and travel, as well as a handsome fee upon completion.

 A week before it was scheduled, Klein called us into his office and told us it would not appear, because it had been spiked by none other than the paper’s Executive Editor, Abe Rosenthal. He explained that Kaufman’s Court regularly heard cases relating to freedom of the press that the Times was involved in, and the paper could not afford to publish any controversial article about the Rosenberg case which Rosenthal thought would offend Kaufman. He did not want to risk anger from Kaufman arising from the revelation that during the trial, he regularly met with the prosecution as well as secretly conferring with them about giving the Rosenbergs the death sentence.

Yet, there is no doubt that Kaufman’s position on civil liberties was genuine, since he knew that it would most likely bother many of those he had befriended over the years, like Roy Cohn and J. Edgar Hoover. In one decision, Kaufman ruled in favor of two anti-Vietnam War protestors, public school teachers who while on the job, took a stance that made their private views known to staff and students. Kaufman stated, “To compel a person to speak what is not in his mind offends the very principles of tolerance and understanding which for so long have been the foundation of our great land.” None other than Ruth Bader Ginsburg, then a law professor at Columbia University Law School, wrote Kaufman that his words were a “shining example of how the good judge thinks and acts.”

Years later, despite Kaufman’s liberal positions, his friend Attorney General Ed Meese arranged for Kaufman to receive the Presidential Medal of Freedom from Ronald Reagan in exchange for Kaufman agreeing to become part-time on the Second Circuit court and to open up a seat that Reagan could fill. This action annoyed one of Kaufman’s law clerks, Andrew Klein, who Siegel quotes as saying, “It was a very sad chapter for all of us. … If you were a good liberal Democrat, you didn’t want to be manipulated by Ed Meese.”

Legacy

After the Rosenberg’s sons, Michael and Robert Meeropol had begun a well-publicized campaign to exonerate their parents, Kaufman was forced to abandon plans to give a commencement speech at Pomona College in Claremont, California, because the administration feared demonstrations against his presence.

The New York Times Magazine, however, gave Kaufman its pages to address the college’s decision. Complaining of a “continuing pattern of harassment” and a “new spirit of intolerance” on campuses— which today, of course, we have been quite familiar with—Kaufman addressed how disappointed he was that now he was judged on one decision alone, that of giving the death sentence to the Rosenbergs. “I felt it unfortunate, if not unfair,” he wrote, “that these old issues should affect an invitation to speak today, for in the intervening years, I had written decisions in … cases involving civil rights, school desegregation, prison reform, criminal insanity tests, conscientious objection, and freedom of expression.” In other words, decisions that the very left students protesting him undoubtedly favored. Once again, however, the Times’ editors came to his defense, stating in an editorial that he had an “exemplary” record, and after twenty-five years, “it is time to end the vendetta against him.”

Despite that vendetta continuing until Kaufman’s death, Siegel rightfully concludes that in one sense, Kaufman had succeeded beyond his earliest dreams; “he crafted a particularly impressive version of the classic American dream,” and as a jurist, his most important decisions “improved life for many, expanded personal liberty, and infused justice with real compassion.” That the one action—his decision to have the Rosenbergs put to death by the electric chair—became the one act that to most people defined his life, is perhaps both unfair and sad. It was, as Siegel writes, “a shadow he could never outrun.” Thankfully, Martin J. Siegel has written a sterling biography that evaluates Kaufman fairly and accurately, and Judge Kaufman’s legacy may now be evaluated anew by those willing to do so.