More than seven decades after their trial, conviction, and execution, Julius and
Ethel Rosenberg still resonate in our political and legal culture. In 1951, during one of the hottest moments of the Cold War, the United States prosecuted the couple for conspiring to provide atomic secrets to the Soviet Union. The prosecutors, who included Roy Cohn, obtained the couple’s conviction through the testimony of Ethel’s younger brother, David Greenglass. The trial court judge, Irving R. Kaufman, called their crime “worse than murder” and sentenced the Rosenbergs to death. Despite numerous appeals, the couple was executed in June 1953.
As we approach the 70th anniversary of the execution, the U.S. is engaged in a proxy war with Russia; Cohn’s client, Donald Trump, is fighting prosecutors on multiple fronts; and authors continue to write about the Rosenbergs. (The most recent entry is Anne Sebba’s biography of Ethel, published in 2021.)
Stock stories about Kaufman and the case abound: Kaufman sentenced the Rosenbergs to death to boost his candidacy for the so-called Jewish seat on the Supreme Court. A Cold Warrior, the judge said at the sentencing hearing that the U.S. was engaged “in a life-and-death struggle with a completely different system.” As the son of Jewish immigrants, Kaufman was determined to show his loyalty to the nation that had provided him with the opportunity to succeed rather than to his co-religionists who had
betrayed it.
There is something to each account. Yet there is more to Kaufman than Rosenberg v. United States, as Martin J. Siegel shows in his excellent biography, Judgment and Mercy. Siegel was one of Kaufman’s last law clerks, starting in 1991 and serving until the judge’s death in February 1992. While the author shares stories and impressions from that time, most of the book is based on interviews and research, including a thorough review of Kaufman’s papers at the Library of Congress. Perhaps the greatest strength of Siegel’s book is that it is balanced.
Foremost for any biographer, Siegel examines Kaufman’s conduct in Rosenberg. In total, it’s a disturbing portrait. Kaufman lobbied to try the case, exercised his discretion at times to support the government at trial, and sentenced Ethel Rosenberg to die even though her role in the conspiracy was minor. The judge also engaged in improper ex parte—private, one-sided—discussions with prosecutors during the trial. However, this was not known until the 1970s, more than two decades after the Rosenbergs were executed.
While Siegel does not excuse or apologize for Kaufman’s misconduct in the case, he puts the judge’s actions in a biographical and political context. Kaufman’s life was a classic 20th-century American success story. The son of immigrants, Kaufman strived and prospered, securing a prestigious appointment to the federal judiciary in 1949 before he turned 40. Given his experience, Siegel argues, Kaufman was devoid of sympathy for those who had betrayed the United States. The Rosenberg trial occurred during the Korean War, when it would have been challenging politically for any judge to resist the pressure to harshly sentence defendants charged with and convicted of conspiring to share atomic secrets with the Soviet Union. Nonetheless, under the Constitution’s separation of powers, federal judges should protect the rights of unpopular criminal defendants, especially when they are on trial for their lives.
This critique of Kaufman is familiar to scholars of the trial. Siegel’s invaluable contribution is to chart the judge’s development into a liberal jurist after President John F. Kennedy appointed him to the U.S. Court of Appeals for the Second Circuit in 1961.
Kaufman’s judicial record follows the path of liberalism from the statist-centered philosophy of the early days of the Cold War to the individual-oriented 1960s and ’70s to its defensive posture after the election of Ronald Reagan in 1980.
To some extent, Kaufman evolved as law and society changed, but this explanation is incomplete. Siegel considers the possibility that the judge’s jurisprudence shifted to make amends for the Rosenberg case but ultimately does not endorse this explanation. Instead, he credits Kaufman with believing that government could improve people’s lives and should be held accountable when it failed to do so. More generally, Kaufman sought justice on the bench; in the most consequential case of his tenure, however, his view of justice led him to make decisions that would overshadow his many accomplishments and define his judicial legacy.
Through interviews and access to family files, photos, and correspondence, Siegel also describes Kaufman’s private life, providing a portrait of the man beneath the robe. The same qualities that enabled Kaufman to become a federal judge at a young age—restless ambition, domineering assertiveness that sometimes reflected insecurity rather than its absence—exacted a toll on his family. His wife Helen, described by one former law clerk as “warm, forthright, unpretentious … everything Kaufman wasn’t,” struggled with anorexia and alcoholism. His sons had various mental health and physical ailments. One was diagnosed with Munchausen’s syndrome, and another may have had it as well; one grandson suggests that the ailment was a way for his father and his uncle “to get their outsized father’s attention,” according to Siegel.
Judgment and Mercy begins with an American tale: the immigration of Kaufman’s parents, Tzvi and Rachel, from Galicia to, ultimately, the United States in 1903. Isidore, their fifth child and youngest son, was born seven years later on the Lower East Side of New York City. As Siegel recounts, Kaufman raced “through the public schools of New York City.” Rather than join the many Jewish students at City College, Kaufman picked up his undergraduate and graduate degrees at Fordham. At the start of his legal career in 1932, Kaufman changed his first name to Irving and gave himself a middle name, Robert. Decades later, he would be known on the federal bench by his initials, IRK.
His first job was in private practice with an attorney named Louis Rosenberg (no relation to the couple who would be convicted of espionage two decades later). Kaufman then joined the U.S. Attorney’s office, married his former boss’s daughter, and distinguished himself prosecuting fraud cases. He returned to private practice in 1940, this time at a small law firm where his clients included Samuel “S.I.” Newhouse, who built a publishing empire, and Milton Berle, the comedian.
Kaufman longed to be a federal judge. To promote his appointment, he did volunteer work in the public interest and cultivated powerful patrons in government, including FBI Director J. Edgar Hoover and Tom Clark, who was nominated as attorney general in 1945 by President Harry Truman. In 1947, Clark appointed Kaufman a special assistant in the Justice Department, where he worked on tightening and enforcing federal lobbying laws. Kaufman left in the summer of 1948, and a year later, Truman appointed him, at the age of 39, to the Southern District of New York. He was one of the youngest federal judges in the nation. In a draft of written remarks addressed to friends, Kaufman commented, “My dream came true” and sounded a patriotic note: “This can only happen in America.”
Nearly two months before Truman appointed Kaufman to the federal district court in 1949, the Soviet Union detonated its first atomic bomb. Tensions in the Cold War escalated, then ratcheted up even further in early 1950 with the discovery that atomic secrets had been passed to the Soviet Union during World War II. As the FBI investigated the spy ring, the Korean War broke out that summer.
Kaufman lobbied fiercely to try the Rosenbergs. As Roy Cohn later recounted, “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.”
Today, it is not disputed that Julius Rosenberg spied for the Soviet Union. (Another defendant in the case, Morton Sobell, was charged with and convicted of conspiring with Julius to obtain classified information other than atomic secrets for the Soviet Union—specifically, “military engineering and fire control information,” according to the Second Circuit.) But for the serendipity of Ethel’s younger brother, David Greenglass, being assigned to work as a machinist at Los Alamos, the New Mexico laboratory where the United States developed the atomic bomb, neither Julius nor Ethel ever would have been charged with a capital crime. After his brother-in-law was assigned to Los Alamos, Julius persuaded Greenglass and his wife Ruth to pass along what he knew about the bomb to Julius or other intermediaries to share with the Soviet Union in 1944 and 1945. Julius emphasized that, as an ally of the U.S., the Soviet Union should have the atomic bomb too.
After World War II ended, Greenglass was discharged from the Army in 1946 and returned to civilian life in Manhattan, where he and Julius ran a machine shop. In early 1950, Scotland Yard arrested Klaus Fuchs, a German-born British scientist who worked at Los Alamos, for sharing information about the atomic bomb with the Soviet Union. Fuchs’s disclosures helped federal investigators unravel Rosenberg’s spy ring in the United States. In June 1950, the FBI interrogated David Greenglass, who implicated Julius. The FBI arrested Julius in July and Ethel a month later after she testified before the grand jury.
Federal prosecutors in Manhattan charged the Rosenbergs and several other defendants, including Greenglass, with conspiracy to commit espionage. The case against Ethel was modest; at most, she had played a minor supporting role in the conspiracy. Nevertheless, she was charged because, in the words of Hoover, “proceedings against [Julius’s] wife might serve as a lever” to get him to talk.
After sentencing the Rosenbergs, Kaufman told reporters he had visited his synagogue several times during the prior week seeking spiritual guidance. This prompted Justice Felix Frankfurter to write, “I despise a judge who feels God told him to impose a death sentence.”
Kaufman wanted to be assigned the case, and he enlisted Roy Cohn, one of the prosecutors, to lobby the court clerk to assign it to him. Kaufman justified the assignment because he had just tried a case involving two defendants investigated for industrial espionage on behalf of the Soviet Union; he was familiar with the issues and two of the witnesses who would testify in Rosenberg and, therefore, would not have to learn everything from the beginning, according to Cohn. The vehemence with which Kaufman pressed Cohn suggests that personal ambition motivated him more than judicial efficiency. As Cohn later recounted, “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.” (After quoting Cohn, Siegel comments, “While Cohn’s lifetime of lying puts his credibility in question, his account [of Cohn’s call to the clerk] rings true and perfectly captures Kaufman’s modus operandi.”)
As noted earlier, there is now consensus that Julius Rosenberg ran a spy ring that provided information about the atomic bomb to the Soviet Union, while Ethel, at most, supported her husband’s efforts. However, even this summary is complicated by the fact that, as David Greenglass admitted decades after the trial, he and his wife Ruth lied about Ethel typing up David’s notes for Julius. Ethel was convicted, and her conviction was upheld, on the basis of false testimony.
If we set aside what we know now about the case and turn back the clock to 1951, when the trial occurred, what can we say about Kaufman’s conduct in Rosenberg? According to Siegel, “Most of Kaufman’s management of the trial was legally proper.” However, as Siegel shows, Kaufman consistently intervened during the trial in ways that helped the prosecution—for example, by pressing defense witnesses when they testified and clarifying the testimony of government witnesses. In addition, Kaufman allowed the government to present evidence of the Rosenbergs’ communist views on the theory that it would establish the couple’s motive for conspiring to commit espionage. Although the Second Circuit acknowledged that this evidence could be “highly inflammatory in a jury trial,” it nevertheless rejected the Rosenbergs’ claim that they had been denied a fair trial. Despite numerous appeals, no court ever disturbed that judgment.
More than two decades after the Rosenbergs were executed, their sons secured the release of government records showing that Kaufman had engaged in ex parte communications with government prosecutors before and during the trial. This was improper. Though Kaufman was not the only judge who engaged in such communications with prosecutors at that time, Siegel rejects this defense, as have legal ethics professors. “Whatever their substance, backstage meetings with prosecutors would have placed Kaufman firmly on the government’s team despite his fundamental obligation to remain neutral,” Siegel concludes. Revelation of the ex parte contacts would forever taint the judge’s reputation.
Those contacts included conferring with the lead prosecutor, U.S. Attorney Irving Saypol, the day before the defendants were to be sentenced. The government’s views were “muddled,” Siegel notes. Some prosecutors believed that both Rosenbergs should be sentenced to death, while Hoover, among others, felt that Ethel should be spared. Among high-level government officials, Hoover appears to be the only one who realized that, after the heat of the moment passed, executing the mother of two young sons for being involved in the conspiracy would appear to be cruel and vengeful.
At the sentencing hearing, Kaufman cast himself as a thoughtful, solitary judge wrestling not just with the defendants’ fates but with the course of recent history as well. As Siegel recounts, the judge “began with a half-truth that would only embarrass him when the full story emerged decades later.” Kaufman stated, “Because of the seriousness of this case and the lack of precedent, I have refrained from asking the Government for a recommendation. The responsibility is so great that I believe the Court alone should assume this responsibility.” Kaufman then sentenced the couple to death, saying their actions had advanced Russia’s development of the atomic bomb by “years” and “caused . . . the Communist aggression in Korea.” The former contention was debatable, the latter hyperbolic.
After the sentencing hearing, Kaufman told reporters he had visited his synagogue several times during the prior week seeking spiritual guidance. This revelation prompted Justice Felix Frankfurter—who held the “Jewish seat” on the Supreme Court that Kaufman aspired to fill some day—to later write in a letter to Learned Hand, another federal judge, “I despise a judge who feels God told him to impose a death sentence,” adding, “I am mean enough to try to stay here long enough so that K will be too old to succeed me.”
After the trial, Kaufman was both praised and pilloried as the case developed into a worldwide political affair. He continued to serve on the district court and twice sought to be elevated to the Second Circuit, which President Kennedy did in 1961, and where Kaufman would serve for more than three decades.
His elevation to the federal court of appeals was all but inevitable. Kaufman had the support of New York’s Republican senators (Jacob Javits and Kenneth Keating), and Attorney General Robert Kennedy, who knew Kaufman from his presiding over a school desegregation case in New Rochelle and a well-known organized crime trial involving more than 20 criminal defendants. Even Learned Hand supported his nomination. While previously Hand had supported the nomination of Henry Friendly over Kaufman for the Second Circuit when Dwight Eisenhower was president, he now wrote a letter to President Kennedy supporting Kaufman. The Rosenberg case was controversial but did not impede Kaufman’s promotion.
During his service on the Second Circuit, Kaufman developed into a full-throated liberal who protected individuals from government overreach. Among other things, Kaufman wrote decisions that vindicated criminal defendants’ constitutional rights, updated the insanity defense, reformed prisons, upheld the rights of conscientious objectors drafted to serve in the Vietnam War, protected John Lennon from deportation, and opened the federal courts to claims of human rights violations by foreign torturers.
This was hardly the most likely path for the judge who had condemned the Rosenbergs to death. Kaufman’s jurisprudence tracked (and contributed to) the zeitgeist of liberalism, which evolved from deferring to the state to challenging it in the aftermath of the Vietnam War, urban riots, and Watergate. In addition, Siegel says, as the son of immigrant parents, Kaufman was sympathetic to legal claims made by various “forgotten [men]”—at least those who did not betray their country, as Kaufman believed the Rosenbergs had. Finally, Siegel notes, the judge’s pursuit of justice combined with his “feverishly active personality, unable to rest until [his] wish became fact.” Judicial restraint was something of an oxymoron for Kaufman.
Later on, Kaufman developed into a full-throated liberal who protected individuals from government overreach. His decisions vindicated defendants’ constitutional rights, updated the insanity defense, reformed prisons, protected conscientious objectors, and opened the federal courts to claims of international human rights violations.
The most notable aspect of Kaufman’s liberal jurisprudence was in the area of freedom of the press. Not only did he vote in favor of The New York Times and against the federal government when the Pentagon Papers case was before the Second Circuit—the Supreme Court took the same position in its 6–3 decision—but he also consistently sided with the press in cases involving confidential sources and libel claims. Siegel notes that there was an element of self-promotion in Kaufman’s rulings: “At the same time Kaufman was protecting the press, he was energetically courting it,” he writes, nowhere more so than the Times. He flattered publisher Punch Sulzberger and executive editor A. M. Rosenthal while pressing its reporters for coverage. Kaufman also wrote for the Times; according to Siegel, the judge “browbeat clerks to draft articles for the paper.” Kaufman’s campaign often succeeded, as he averaged more than one op-ed per year from 1972 through 1990 and published a dozen articles in The New York Times Magazine from 1966 to 1987.
In evaluating Kaufman’s appeals court tenure, Siegel notes but does not discuss his enduring contribution to antitrust law: a lengthy decision for the Second Circuit in Berkey v. Kodak in 1979. In its obituary, The New York Times described the case as a “landmark.” Kaufman’s opinion, the Times summarized,
ruled that a company was entitled to protect its dominant position in the market by normal competitive methods; that the purpose of the antitrust law was to encourage competition, and not to insulate companies from competition; and that activity that resulted in lower prices and better products for the consumer was to be favored, even if that activity was harmful to individual competitors.
Although the court ruled in favor of Kodak, the defendant, it reiterated that there were limits to the ways in which a monopolist may use its monopoly power. Subsequent cases addressing this issue often “start their analysis where Berkey left off,” according to a Fordham Law Review article published in 2016.
Although Kaufman never escaped the shadow of the Rosenberg case, he modeled a judicial liberalism that believed in the capacity of the federal government to improve the lives of its citizens. His tenure on the federal bench is a reminder of what the federal judiciary can accomplish as a coordinate branch of government. Ambitious and hyperactive, Kaufman was an activist judge who effectively managed the first school desegregation case in the North and opened the federal courts to international human rights claims in 1980 through a novel and compelling interpretation of the Alien Tort Claims Act. The Yale Law School professor Harold Hongju Koh calls the latter decision, in Filártiga v. Peña-Irala, the Brown v. Board of Education of human rights litigation.
Siegel’s biography also is a sobering reminder, in the era of ideology, that judges are human. When he became a federal judge in 1949, Kaufman seemed to embody a quintessential American success story. Through hard work and professional success, he had attained his dream appointment, married into a successful family, and become the proud father of three sons. Two years later, Siegel writes, “a fatal want of mercy” in Kaufman’s most famous case cast “shadows he could never outrun.”
The author summarizes:
The bomb threats and the letters and the stress helped corrode his family and private life. [Kaufman] was left to watch helplessly as his wife attempted suicide. Despite genuine love for his sons, he often seemed unable to grant them the same compassion and understanding present in his best opinions, exacerbating their ailments and damaging their lives.
As Kaufman neared the end of his career, he was said to be fixated on how his obituary in The New York Times would read—that he would be remembered as the judge in Rosenberg. (Kaufman did not second-guess his decisions in that case but was very sensitive to criticism of them.) Kaufman’s apprehension regarding his obituary turned out to be correct. After he died in 1992, the opening sentence of the Times’s article began: “Judge Irving R. Kaufman, who gained national attention in 1951 as the judge who sentenced Julius and Ethel Rosenberg to the electric chair …” But his extensive efforts to develop a record as more than just the judge in that case were rewarded, for the rest of the sentence read, “and who wrote landmark decisions in First Amendment, antitrust and civil rights cases for more than 30 years on the Federal bench, died on Saturday night in the Mount Sinai Medical Center.”
Siegel’s biography succeeds masterfully in illuminating the life of the ambitious son of immigrants who became a federal judge at the age of 39, angled to try the espionage case of the 20th century, and then had to live with the consequences of his actions the rest of his long tenure on the bench.
