Judgment and Mercy: The Turbulent Life and Times of the Judge Who Condemned the Rosenbergs

  • By Martin J. Siegel
  • Three Hills Press
  • 432 pp.

The problematic jurist who gave Julius and Ethel the chair.

Judgment and Mercy: The Turbulent Life and Times of the Judge Who Condemned the Rosenbergs

Irving R. Kaufman, the New York federal judge who sentenced Julius and Ethel Rosenberg to death for sharing atomic secrets with the Soviets, spent the remainder of his life on the bench trying to wipe their names from the headline of his future obituary. He failed.

Newspapers large and small emphasized that salient fact when the judge entered the hereafter on February 1, 1992, after a brief battle with pancreatic cancer. “Irving R. Kaufman; Judge in Rosenbergs’ Spy Trial,” read the banner announcing his death in the Los Angeles Times; “Judge Irving Kaufman Dies; Sent Rosenbergs to electric chair after presiding over ’51 spy trial,” wrote Long Island’s Newsday.

Despite years of atonement via liberal rulings in cases involving school desegregation, defendants’ rights, and the First Amendment, it was the execution of the notorious spy couple for which the judge would be remembered. Shortly before his death, Kaufman instructed one of the many law clerks he’d terrorized over the years to take notes for his memoir. “Look, I’m the Rosenberg judge,” he told her, “and I want to clear my name.” And then, for some minor infraction or other, he fired the clerk. No memoir was ever published.

Attorney Martin J. Siegel’s well-written biography of his former boss (he was Kaufman’s final law clerk), Judgment and Mercy, is fascinating and scrupulously fair. It reveals Kaufman to be a tragic and complex jurist: brilliant, innovative, petty, vainglorious, and highly unethical. The judge’s repeated private conversations with government lawyers about cases pending before him — including with the despicable, disgraced Roy Cohn, who prosecuted the Rosenbergs — are shocking.

He was born Isidore Kaufman on June 24, 1910, to Jewish immigrants from Eastern Europe who made their way to Ellis Island and then to a tenement on the Lower East Side of Manhattan. He was the embodiment of the American dream: His father was a two-dollar-a-day meter reader for the gas company, but Kaufman graduated from New York City’s public schools at 16 and headed straight for Fordham Law. He changed his name to Irving Robert Kaufman, which would give his colleagues and clerks a good laugh over his apt new initials, IRK.

After graduation, he briefly worked at a law firm and married Helen Rosenberg (no relation to the infamous couple), the daughter of the firm’s wealthy senior partner. The marriage was hardly a happy one; Helen was anorexic, addicted to painkillers and alcohol, and suicidal. The couple had three sons who fared no better. All of them had substance-abuse issues, and one suffered serious mental illness. Two died before their father did, for which relatives partially blamed Kaufman’s bullying manner and uncompromising standards — effective in court but devastating at home.

In 1935, Kaufman snagged a coveted job as an assistant U.S. attorney in the Southern District of New York, eventually rising to become a judge on the United States Court of Appeals for the Second Circuit, a notch below the U.S. Supreme Court. His success was the result of intelligence, drive, incessant lobbying, and endless toadying. He fawned over powerful men he thought could help his career, including J. Edgar Hoover.

President Truman appointed Kaufman to the federal district court in New York in 1949. Less than two years later, on March 6, 1951, the Rosenberg trial opened, and the eyes of the world were suddenly on the young judge. The year before, biochemist Harry Gold had been arrested for spying for the Soviets during World War II. Gold had passed information about the A-bomb obtained from David Greenglass, a low-level machinist at the Los Alamos, New Mexico, lab where the bomb was made. The FBI came after Greenglass, and to save himself, he fingered his brother-in-law, Julius Rosenberg, as the mastermind of a Soviet spy ring and later implicated his sister, Ethel, who was married to Julius. The couple’s inexorable walk to the electric chair had begun.

Kaufman would portray the Rosenberg case as his cross to bear, but in reality, he finagled to get it, thinking its notoriety would help land him a seat on the Supreme Court. “He wanted the case as much as he wanted the judgeship — and when Irving wants something he doesn’t stop, he doesn’t leave you alone until you do what he wants,” remembered Cohn. Once Kaufman got his wish, he held “secret, back-channel discussions with the prosecution team, something he continued throughout the trial,” Siegel writes. This claim is supported by Cohn’s memoirs, FBI files, and interviews with former Kaufman law clerks.

After the Rosenbergs were convicted, Kaufman claimed to have struggled with his decision to impose the death penalty, telling the Saturday Evening Post that he went alone to the Park Avenue Synagogue to pray for divine guidance. Yet according to Cohn, Kaufman had decided at least Julius’ fate before the trial even began. He imposed the sentence on April 5, 1951, and while the public at first seemed supportive, that sentiment didn’t last long.

Appeals were filed. Rabbis urged Kaufman to spare the Jewish couple, who had two young children at home. Pope Pius XII petitioned for mercy. Newspapers worldwide called for the executions to be stopped. Increasingly nervous about the impact the death sentences would have on his career, Kaufman called the White House to ask Truman to grant clemency. The president told the judge to do it himself. But Kaufman would not, and on June 19, 1953, Julius and Ethel Rosenberg, their appeals exhausted, were executed.

Once the fuss died down, Kaufman campaigned to get promoted to the Second Circuit. Powerful appellate judges conspired to prevent it. Associate Supreme Court Justice Felix Frankfurter wrote to his friend Learned Hand, already on the Second Circuit, telling him:

“I despise a judge who feels God told him to impose a death sentence — or any — and K is an ass-kisser to boot.”

Not until 1961, with the Kennedy brothers newly ensconced in Washington, did Democrat Kaufman sail through the confirmation process in a week to claim the golden ring, his seat on the Second Circuit. While there, he issued the decision allowing John Lennon, scheduled for deportation by the U.S. government, to stay. Kaufman also sided with the New York Times in the Pentagon Papers case but couldn’t resist improperly calling the newspaper after oral arguments — while the case was still pending before the Second Circuit — to complain about the performance of its lawyer.

Kaufman never made it to the Supreme Court; his age, politics, and the long shadow of the Rosenberg case all conspired against him. In the 1970s, when anti-government feelings were strong and a new generation was ready to re-examine the case, a request was made to the FBI under the Freedom of Information Act. The result was the release, in 1975, of files that revealed the judge’s improper ex parte contacts with the government during the Rosenberg case. Consequently, there were calls to Congress to investigate his actions, and a full-page open letter condemning Kaufman’s behavior was published in the New York Times. There were even demonstrations against him in front of the courthouse.

Eventually, the calls for his head subsided. As the decade wore on and America moved to the right — again — nothing came of attempts to hold him accountable, although he remained obsessed with the subject, constantly discussing the Rosenberg case with friends in the legal community. After Kaufman’s death, the U.S. government opened the records of its top-secret “Venona” project, which revealed that Julius Rosenberg was, indeed, a Russian spy, and Ethel, while probably not directly involved, was certainly aware of her husband’s espionage. While that revelation might’ve muted criticism about what happened to Julius, it only added to the chorus of outrage over Ethel’s fate.

Ironically, it was Ethel Rosenberg who saw Kaufman’s future most clearly. When he refused her lawyer’s attempt to get him to commute their death sentences, she remarked, “It strikes me that Judge Irving R. Kaufman’s immortality is at last assured.”

Diane Kiesel is a judge of the Supreme Court of New York. A former journalist, she is the author of Domestic Violence: Law Policy and Practice, published in 2017 by the Carolina Academic Press, and She Can Bring Us Home: Dr. Dorothy Boulding Ferebee, Civil Rights Pioneer, published in 2015 by the University of Nebraska Press/Potomac Books imprint. She is currently at work on The Trials of Charlie Chaplin: How the Federal Government and One Woman Drove The Little Tramp from the United States, to be published by the University of Michigan Press.

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