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

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Release Date: 
March 15, 2023
Cornell University Press
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“Judgment and Mercy makes a compelling case that Irving Kaufman— . . . the Rosenbergs’ hanging judge—became a heroic, progressive, activist jurist over the balance of a long and distinguished career.”

Though interest in the 1951 trial of Julius and Ethel Rosenberg and the couple’s 1953 execution for conspiracy to commit espionage tends to wax and wane from year to year and decade to decade, books that attract readers with the promise of fresh perspectives on the case’s principal players continue to demonstrate the hold it retains on our collective imaginations.

June 2021 marked the release of two compelling books in which Ethel Rosenberg figured prominently: Francine Prose’s raucous historical novel The Vixen, and Anne Sebba’s biography Ethel Rosenberg: An American Tragedy, which balanced a convincing characterization of the supposed femme fatale super-spy's surpassing ordinariness with some mildly unexpected revelations of Ethel’s youthful opera-singing ambitions and her early years as a union organizer. If Sebba’s somewhat too-strong inclination to interpret the paucity of evidence linking Ethel to her husband’s espionage work as proof of her non-involvement (or even ignorance of what Julius was up to), it only serves to underscore how flimsy were the legal grounds on which Ethel was convicted and sentenced to death.

Martin J. Siegel’s Judgment and Mercy: The Turbulent Life and Times of the Judge Who Condemned the Rosenbergs, published this month, packs quite a few more surprises about its subject: Irving Kaufman, the Rosenberg trial judge. Though remembered today for little else besides his handling of the Rosenberg case, Siegel’s book reveals that Kaufman rose through the federal judicial ranks for another 40 years, ultimately serving as Chief Judge of the United States Court of Appeals for the Second Circuit.

Kaufman presents a challenging subject for any biographer—not merely because of the complexity of his character and life, but because of the reflexive revulsion the mention of his name likely inspires among most people who still know it. Though it seems strange to say of a man who was never himself on trial, Judgment and Mercy doesn’t entirely exonerate Kaufman for condemning the Rosenbergs to death. Nor does it absolve him for his notoriously hyperbolic sentencing remarks, in which he blamed a man Siegel describes as a “a luckless electrician” and his home-making wife for delivering the A-bomb to the Soviets, causing the Korean War, and changing the course of history.

But Judgment and Mercy makes a compelling case that Irving Kaufman—long consigned to judicial purgatory or worse as the Rosenbergs’ hanging judge—became a heroic, progressive, activist jurist over the balance of a long and distinguished career.

It’s also a testament to the enduring power of the Rosenberg verdict that the case still headlined Kaufman’s 1992 obituary four decades after he delivered it. In the intervening years, Kaufman ruled emphatically for the plaintiffs in a landmark New York desegregation case, affirmed the New York Times’ right to publish the Pentagon Papers, and consistently fought for freedom of the press, championed human rights in an ingeniously adjudicated watershed case that brought foreign torturers to justice and opened the floodgates for similar cases, and handed no less a countercultural icon than John Lennon a victory in his long-standing deportation battle against Richard Nixon and the INS.

As Siegel—who began his own legal career as one of Kaufman’s last clerks—writes, “Floyd Abrams, then perhaps America’s leading First Amendment lawyer, labeled Kaufman ‘one of the most eloquent articulators of the underlying meaning’ of that constitutional guarantee; ‘his rulings reflected an abiding belief in the significance of free expression for everybody.’ Again and again, civil liberties lawyers would think of the martyred Rosenbergs and blanch on learning Kaufman was one of the three judges assigned to decide their appeal—only to turn ecstatic when he ruled in their favor. Grace withheld from the Rosenbergs overflowed toward others: the weak, the excluded, the unpopular.”

What makes Judgment and Mercy such a fascinating read is not just Siegel’s often-sparkling prose or the evidence that Kaufman was far more than an anti-communist enforcer, Cold War statist stooge, and apparent self-hating antisemite (in truth, he wasn’t that), but the way Siegel reconciles these elements of his character with the full scope of his life and judicial record.

The Irving Kaufman that Siegel portrays was an undeniably complex man. He was a son of immigrants from the Lower East Side who sidestepped the traditional City College of New York path of upward mobility for New York Jews to pursue his law degree among Catholics at Fordham, advanced swiftly up the judicial ranks, and acquired a posh Park Avenue address, but always bore resentment toward the “Harvards” who had it all handed to them.

Kaufman was also a close friend of J. Edgar Hoover who assiduously cultivated many such relationships of strategic benefit to achieving his ambitions (notably the editors and publisher of The New York Times). He was a lockstep Cold War liberal of the Truman era, entirely susceptible to the Second Red Scare hysteria of the time.”

Throughout much of his career, Kaufman had a well-earned reputation for overstepping the acceptable bounds of ex parte interactions with prosecutors, as he did most notoriously with United States attorneys Irving Saypol and Roy Cohn during the Rosenberg trial. And in the words of one espionage defendant, Miriam Moskowitz, who felt the sting of Kaufman’s maximum penalty sentencing a year before the Rosenbergs, the judge was “imperious, unreachable, coldly outside the community of mere mortals, unresponsive to doubt and draped in the majesty of his office.”

But Siegel’s Kaufman also emerges as a determined and effective desegregationist jurist whose Taylor v. Board of Education (1961) ruling eviscerated the “neighborhood schools” defense for maintaining de facto segregation with demonstrably unequal results, and set a precedent for how aggressively the Supreme Court’s 1954 Brown decision could be applied north of the Mason-Dixon line. Kaufman likewise proved a staunch ally to immigrants and a foe to human rights abusers, as well as an adept navigator of the “Hippieland” era of the 1960s and ’70s, who stood up for war resisters, Attica-era prison inmates, and virtually every progressive cause of the day (though gay rights proved a lamentable exception).

Kaufman also emerged as a stalwart defender of the First Amendment and press freedom, underscoring his evolution beyond the Cold War preoccupations of the controversial 1950s decisions that formed his early reputation. “His professed belief in the central role of free speech in a democracy and its importance to fully realizing one’s identity jibed fully with his support for civil liberties across the board,” Siegel writes, “and his migration away from prioritizing the needs of the state and toward the claims of the individual.”

Without question, Judgment and Mercy’s most riveting chapters concern the 1951 Rosenberg trial and its aftermath, up to and including the prolonged and heated countdown to the couple's 1953 execution. It’s a riveting recap, with particular emphasis on the numerous blunders of the Rosenbergs’ own attorneys (who many believed were throwing the case to make leftist martyrs of their clients), and generous helpings of colorful (if occasionally suspect) commentary from infamous prosecuting attorney Roy Cohn about Kaufman’s handling of the case. Although Siegel is quick to remind readers that nearly every decade of the 20th century—from Harry K. Thaw in 1907 to O.J. Simpson in 1995—had its “trial of the century,” the Rosenberg trial had more than its share of dramatic moments as it justifiably drew the eyes of the world, and its reverberations continue to this day.

For all of his later achievements, never again would Irving Kaufman be so valorized or vilified for his judicial conduct, his merciless sentencing, or the immoderate rhetoric with which he delivered it. Even as the Venona decryptions have long since eliminated any reasonable doubt as to Julius Rosenberg’s role in Soviet espionage (albeit a minor one), Kaufman’s reckless use of the death penalty as a ploy to coerce two convicted spies into confessing and naming names looks no more justifiable in the light of Julius’ confirmed guilt.

Kaufman seems to have had some inkling just a few years after the Rosenbergs’ deaths that he would never live it down. “If [the judge] ever consciously perpetrates an injustice,” he said in a 1958 speech, “he will be haunted by it the rest of his life.”

The haunting specter of the Rosenbergs seems to have loomed largest in Kaufman’s life in what Siegel describes as the judge’s “annus horribilis” of 1977. During that year, personal turmoil and tragedy in Kaufman’s life coincided with a resurgence of interest and debate over the Rosenberg verdict (thanks in part to one magnificent Rosenbergs-inspired novel published a few years earlier and one confoundingly awful one released that year), and hastened by the dogged efforts of the couple’s sons, Michael and Robert Meeropol, to bring new evidence to light. Much of that evidence concerned Kaufman’s own alleged collusion with the prosecution. “While he never publicly let on that he had caused an injustice—and almost certainly didn’t think he had,” Siegel writes, “even in the mournful, introspective depths of 1977—he was haunted nevertheless.”

The year 1977 notwithstanding, Judgment and Mercy chronicles not just Kaufman’s survival of personal and professional struggles but his triumph as a judge who used his position on the bench to champion the rights of outsiders from inmates to immigrants to Vietnam War dissenters against “majoritarian institutions,” and as a man “in whom a ready humanity won out.” And still he died a man “known for one thing only, just as he feared.”

Although Irving Kaufman desperately wanted to distance himself from the stigma of the Rosenberg case, Siegel argues that his decision in their sentencing was not just judicial and political but also deeply personal and rooted in his own experience. Kaufman clearly saw Julius Rosenberg as a traitor to the United States government and had little patience for the notion that he was only helping a wartime ally (as if a private citizen’s decision to arrogate to himself the sharing of national military secrets was somehow justifiable in those circumstances). But more than that, Siegel contends, Kaufman likely bore particular resentment toward Rosenberg for rejecting the Goldene Medina that American capitalism offered to immigrant Jews and their children, and the chance to escape the Lower East Side shtetl through hard work, economic advancement, and cultural assimilation that could have set Rosenberg and Kaufman on parallel paths.

A major judicial biography that earns a place of distinction alongside other notable recent works such as Tomiko Brown-Nagin’s Civil Rights Queen: Constance Baker Motley and the Struggle for Equality, and Brad Snyder’s Democratic Justice: Felix Frankfurter, the Supreme Court, and the Making of the Liberal Establishment, Siegel’s Judgment and Mercy gives its flawed, complex, and perhaps too-long-reviled subject the captivating, multi-dimensional chronicle his life and work deserve.