An acquaintance of mine, a rising star among lawyers who practice before the Supreme Court, asked me what I was reading these days. When I replied, “A biography of Judge Irving Kaufman,” the young man looked puzzled. “The name sounds familiar,” he said. “Who was he?” “The judge who sentenced the Rosenbergs to death,” I offered. He nodded in recognition. “Oh, yes, of course.”
Kaufman, who was still serving on the federal appeals court in New York when he died in 1992 at the age of eighty-one, would have been dismayed by that exchange but not surprised. He knew—the world would not let him forget—that a single decision, eighteen months into a judicial career that lasted another four decades, would be his legacy, a personal sentence that could never be commuted.
It has been seventy years since Julius and Ethel Rosenberg were electrocuted at Sing Sing Prison for passing atomic secrets to the Russians. As a forty-year-old federal district judge, in 1951 Kaufman presided over the couple’s two-week trial for conspiracy to commit espionage. The question of guilt or innocence was up to the jury. The sentencing decision was the judge’s alone.
That Julius was guilty as charged is beyond serious dispute, but doubt about the extent of Ethel’s involvement in the scheme lingers and has grown over the years, contributing to the episode’s continuing cultural resonance. (Even J. Edgar Hoover opposed her execution.) Francine Prose set her 2021 novel The Vixen against the background of the Rosenberg case, introducing readers to her narrator as he sits with his parents on June 19, 1953, watching live television updates on the imminent executions. While the case permeates Prose’s novel in a characteristically ironic way, Kaufman doesn’t have even a walk-on role. The deed has outlived the man.
Still, the man himself has remained a puzzle, and Martin J. Siegel’s new biography of him has the virtue of persuading a reader that the puzzle is worth investigating. Books on the lives of Supreme Court justices are rare enough—there is still no full-dress biography of Warren Burger, for example, nearly forty years after the end of his seventeen-year term as chief justice—and books about judges who never made it to the Supreme Court are rarer still.1 Judges tend not to have very interesting lives, at least not once they go on the bench, from which, shielded from the hurly-burly of public affairs, most speak only through their opinions.
That was not Irving Kaufman. Possessed of what Siegel calls “frantic ambition” and with energy bordering on the demonic, he hurled himself into the events of the day, cultivating friendships with the famous (the comedian Milton Berle, a onetime client) and the powerful (Hoover, as well as Arthur Ochs Sulzberger, the publisher of The New York Times). He gave speeches to whoever would listen and had his law clerks draft op-eds that appeared regularly in the Times. He craved publicity, even once complaining to Sulzberger that an article about one of his decisions wasn’t long enough. While many judges might have hoped to avoid the Rosenberg trial, he sought the assignment for its career-enhancing potential.
Siegel was one of Kaufman’s two law clerks during the last months of his life. The clerks, both Harvard Law School graduates, began work in the summer of 1991 and didn’t know that their boss was dying of pancreatic cancer. By the end of the year, he had stopped coming to his chambers. He died a few weeks into the new year.
As a result, Siegel, a former federal prosecutor who now practices law in Houston, scarcely knew Kaufman. His book is no personal reminiscence, no awestruck account of a year in service to a judicial giant. It is, rather, a meticulous and unsentimental inquiry aimed at solving the mystery at the heart of Kaufman’s career: the obvious disconnect between the years leading up to the Rosenberg sentence and the many years that followed.
Kaufman initially gave every sign of wanting to be the federal government’s best friend. Early in his career he served as an assistant United States attorney and won some fame as a crime fighter; his departure from the prosecutor’s office after five years to set up his own law firm was noted in all the New York City newspapers, unusually for a mere assistant. He conducted a correspondence with the FBI director that bordered on sycophancy, writing to Hoover in 1949—the year he became a federal district judge—that “in my opinion, you are the greatest public servant of our time.” Roy Cohn, one of the prosecutors in the Rosenberg case, was a friend. Before and even during the trial, Kaufman was in frequent contact with Cohn and other government lawyers, a shocking breach of judicial ethics that proved deeply embarrassing years later, when it was revealed in FBI memos in response to a Freedom of Information Act request by the Rosenbergs’ grown sons.
But then a different Judge Kaufman emerged. Beginning during his remaining years on the district court and accelerating after President John F. Kennedy named him to the Second Circuit in 1961, his rulings became notably liberal. The government was often a loser in his courtroom. He issued decisions on behalf of immigrants, prisoners, and Vietnam War protesters and draft resisters. In 1972 he ruled in favor of two public school teachers who had been fired for their silent classroom protests against the war; one, a Quaker, had worn a black armband, and the other had refused to recite the Pledge of Allegiance. Kaufman wrote:
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.
The decision drew praise from a professor at Columbia Law School—who happened to be none other than Ruth Bader Ginsburg. It was a “shining example of how the good judge thinks and acts,” she told Kaufman in a letter. In one of his last major cases as a district judge, he ordered the desegregation of the racially imbalanced elementary schools in New Rochelle, New York. Coming in 1961, seven years after Brown v. Board of Education, it was the first such order by a federal court in a northern school system.
“Grace withheld from the Rosenbergs overflowed toward others: the weak, the excluded, the unpopular,” Siegel observes. He singles out a 1979 decision involving Manhattan’s Metropolitan Correctional Center—in which Kaufman found that body cavity searches of pretrial detainees after every meeting with a visitor were “degrading and humiliating”—as the case that “completed Kaufman’s transformation from the man willing to condemn a young mother to death on scant evidence” to one “acutely concerned for the welfare of common prisoners.”
And there were First Amendment decisions, many of them, nearly all in favor of newspaper publishers defending against libel suits and reporters protecting their sources. By the time he was chief judge of the Second Circuit—a position achieved by seniority, not special appointment—Kaufman’s participation in so many of his court’s First Amendment cases seemed to defy the nominally random assignment system.
Kaufman’s special relationship with The New York Times was obvious even to a casual reader of the newspaper and was the source of much eye-rolling among the staff. There were dozens of judges in the New York area, and yet it was only Kaufman whose every decision and speech seemed to merit a news story. This is the background that resulted in my own inadvertent involvement in this book.
In 1983 Kaufman was named head of a federal commission on organized crime. As a reporter in the Times’s Washington bureau, I was assigned to write a Man in the News profile of the judge. I said I would do it only on the condition that my byline not appear. Why? the editors asked. I explained that the paper wouldn’t print the full truth about Judge Kaufman, and I didn’t want my byline on a story that wasn’t true. My unsigned article, which was published on July 29, 1983, contained much that an ordinary reader would have deemed perfectly benign. But it included a few unflattering details, for example that Kaufman, when he was approaching the cutoff at which chief judges have to give up their position (age seventy), had lobbied unsuccessfully to get the law changed. And of course I couldn’t omit reference to the Rosenberg case.
I hadn’t thought about that episode for decades, until Siegel called me in 2019 to ask about correspondence he had found in the Times’s archive. It turned out that the judge had somehow learned that I was the writer of the profile and had sent the editors a three-page complaint about my “poor judgment” in writing about “ancient history” rather than his “many landmark opinions of the past 15 years.” Was I in fact the writer of the profile, Siegel asked me, and had the editors ever relayed Kaufman’s complaint? To their credit, they had not, and I had never heard about it.
Kaufman’s relationship with the Times would be of only parochial interest except that it bears directly on the question of his post-Rosenbergs transformation. Clearly the relationship was symbiotic. Kaufman wanted something from the Times: validation, an establishment stamp of approval, some notion that the headline on his obituary would say something other than “The Judge Who Sentenced the Rosenbergs to Death.” And he gave the Times what it wanted: a well-placed and reliable voice in support of the values of the First Amendment.
That the Times was an active party to this bargain is shown convincingly by correspondence that Siegel found in the newspaper’s files. In 1983 a reader wrote to A.M. Rosenthal, the executive editor, to complain,
I cannot do without the Times every day, but I can do without such exhaustive coverage of Judge Irving Kaufman. I’m beginning to get the impression that Judge Kaufman is either a “sacred cow,” or he’s playing the Times like an organ.
Rosenthal bucked the letter to Sulzberger with the sly notation “We sure have some smart readers.” The publisher answered the letter writer himself, explaining that Kaufman was a “personal friend” and that the coverage was “warranted by the flow of news.” Sulzberger continued:
He is, after all, a senior judge of the Court of Appeals, and is active in a great many First Amendment decisions that are of particular interest to us and the readers of the New York Times.
Kaufman’s empathy for luckless immigrants, prisoners, and the rest probably came naturally. The son of Jewish immigrants from Eastern Europe, he spent his early childhood in a Lower East Side tenement before the family improved its circumstances by moving to Harlem. He was acutely aware of class distinctions. His marriage to the daughter of a wealthy real estate lawyer and parking lot developer provided the means for a lifestyle of conspicuous luxury, with an eight-room apartment on Park Avenue and a household staff to serve at formal family dinners. But he knew that the earlier-arriving German Jews looked down on those with his roots. There is no clear evidence for why, shortly before his graduation from Fordham Law School, he formally changed his birth name, Isadore, to Irving and took a middle name, Robert. Siegel speculates that it was a “sort of Americanization,” hardly uncommon among the children of immigrants.
Julius and Ethel Rosenberg came from families much like his own. Siegel persuasively argues that this similarity contributed to Kaufman’s response to their spying. His hostility toward the pair was evident during the trial. He intervened in ways that helped the prosecution and belittled the defense lawyer in front of the jury. In delivering the death sentence following the jury’s verdict, he called the Rosenbergs’ crime “worse than murder” and declared that they had
already caused, in my opinion, the Communist aggression in Korea, with the resultant casualties exceeding 50,000 and who knows but that millions more of innocent people may pay the price of your treason.
Of course, the Rosenbergs had been neither charged with nor convicted of treason but of conspiracy to commit espionage; during World War II Julius had passed to his Soviet handlers information about the design of the atomic bomb then under development at Los Alamos, information obtained by Ethel’s brother, David Greenglass, a low-level employee at the secret facility in New Mexico’s high desert who later confessed and implicated Ethel to save himself and his wife.
Kaufman’s language was over the top; his claim that the Rosenbergs were responsible for the Korean War was “ludicrous,” Siegel writes. But “he didn’t have to manufacture his patriotic outrage,” Siegel argues.
It was genuine. At his core, there was an inevitable revulsion for two people who had once been just like him but then spurned everything he stood for….
Whether Kaufman was fully conscious of it or not, this is what he meant when he charged the Rosenbergs at sentencing with wanting to destroy America. It was his America they wanted to end, the promised land Jews like him had searched out for millennia and finally found.
In betraying the country, the Rosenbergs had betrayed Irving Robert Kaufman.
From today’s perspective, it is jarring to realize the extent to which Kaufman was in sync with public opinion at the time. In the midst of the McCarthy period and with the cold war growing ever colder, fear of Communist treachery was widespread (although at the time of the Rosenbergs’ crimes, the Russians had been US allies). A Gallup poll in February 1953, just after President Eisenhower denied a final clemency request by the Rosenbergs, showed public approval of the death sentences at 76 percent. The American Civil Liberties Union called the sentences “not so disproportionate to the severity of the crime as to amount to a denial of due process.” Prominent liberal intellectuals including Arthur Schlesinger and Max Lerner approved as well.
Two decades passed before the ghosts of Ethel Rosenberg and her husband came back to haunt Kaufman. Several developments coincided in the early 1970s to ignite a public reexamination of the case, including the appearance of a best-selling account by the well-known lawyer Louis Nizer, The Implosion Conspiracy, and a novel by E.L. Doctorow, The Book of Daniel. Doctorow’s barely fictional plot revolved around two orphaned children of executed spies who have to navigate the New Left excesses of the 1960s even as the legacy of the Old Left shadows their lives. The Rosenbergs’ actual children, Michael and Robert Meeropol, who as young boys had been given the name of their adoptive parents, were by then adults who began to travel the country on a project to exonerate Julius and Ethel. In June 1974, on the twenty-first anniversary of the executions, the National Committee to Reopen the Rosenberg Case held a well-attended rally at Carnegie Hall.
The next year the brothers published We Are Your Sons, a collection of their parents’ letters. Public attention inevitably turned to Kaufman and his handling of the trial, including his improper contacts with the government. He had been scheduled to speak at the commencement at Pomona College in Claremont, California, but withdrew when college officials suggested there might be trouble. The Times then gave him a platform in its Sunday magazine to complain of “a continuing pattern of harassment” and “a new spirit of intolerance” on campuses. The terms in which he defended himself were highly if inadvertently revealing of how deliberately he had conducted himself during the post-Rosenberg years. “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 a wide range of cases that focused public interest—among them cases involving civil rights, school desegregation, prison reform, criminal insanity tests, conscientious objection, and freedom of expression.
Clearly, the zeitgeist that once protected him had flipped. The ACLU, no longer supportive, was now calling for a congressional investigation into Kaufman’s newly revealed contacts with the government during the Rosenberg trial. A leading authority on legal ethics proposed impeaching him for an “illegal and unethical abuse of judicial power.” The Times came to Kaufman’s defense with an editorial titled “Invitation to a Vendetta,” which argued that Kaufman’s record on the bench was “exemplary” and that “surely, after a quarter of a century, it is time to end the vendetta against him.”
The vendetta, if that’s what it was, eventually faded as liberals moved on to other concerns. It left Kaufman deeply shaken and perpetually, even preemptively, defensive. Siegel reports that when Floyd Abrams, the prominent First Amendment lawyer, first met with Kaufman in his chambers, the judge “opened his desk drawer and pulled out a faded copy of Arthur Schlesinger’s column from 1953 supporting the death sentences. Abrams was gobsmacked.”
Still, liberals embraced the opinions that he churned out. Siegel devotes a chapter to a 1980 case in which Kaufman, writing for a unanimous three-judge panel, held that federal courts had jurisdiction to hear suits against those alleged to have committed torture outside the country’s borders.2 The Alien Tort Statute, on which Kaufman based the decision, was enacted by Congress in 1789 and had never been interpreted so broadly.
International human rights organizations were thrilled, the Supreme Court less so. Over the next thirty years, as plaintiffs invoked the newly powerful statute to sue foreign corporations for labor abuses and environmental damage, the justices pushed in the other direction. While the Supreme Court has never formally overturned Kaufman’s ruling, a series of decisions have whittled away at it, essentially returning the Alien Tort Statute to the closet in which it had resided in obscurity for nearly two centuries.3
Even as the zeitgeist turned once again, this time from liberal to conservative, Kaufman never gave up seeking validation and respectability. He yearned for the Presidential Medal of Freedom, which his Second Circuit colleague Judge Henry Friendly, of whom Kaufman was jealous to the point of obsession, had received from President Gerald Ford in 1977. Kaufman failed in his lobbying of the Carter administration. He finally attained his goal in 1987, when he struck an unseemly deal with Edwin Meese III, the Reagan administration’s attorney general. In return for the medal, Kaufman would take senior status, opening a seat on the Second Circuit for Reagan to fill. The day after his new part-time status became official, the medal was his. The Washington Post promptly revealed the details of a story that, while shocking, was by that point in Kaufman’s public life not really surprising.
Judgment and Mercy includes lengthy accounts of Kaufman’s unhappy personal life. His wife, Helen, whose family money was the source of his financial comfort, was alcoholic and repeatedly suicidal. Two of his three sons, all of whom had troubled passages into adulthood, predeceased him. At first these passages in the book struck me as digressions. But they serve Siegel’s effort to examine Kaufman whole, as “a man undone by his own inescapable flaws.” Siegel quotes a line from the nineteenth-century legal philosopher Eugen Ehrlich, one that Benjamin N. Cardozo also used in his 1921 masterpiece The Nature of the Judicial Process: “There is no guarantee of justice except the personality of the judge.”
Does Siegel solve the puzzle of how an almost slavishly pro-government judge became a leading liberal on the federal bench? Not conclusively, but there is much in this book to ponder, not only about one judge but about the responsibility of judges. Both early and late in his career, it’s possible that Kaufman was unusually attentive to the temper of the times, molding himself as the McCarthy period appeared to demand and then shifting as the Warren Court’s increased emphasis on the Bill of Rights reshaped the judicial conversation. That is not necessarily a criticism. We have had our fill in recent months of judges who seem willfully oblivious to what the public wants and needs from its courts. But it is a warning sign nonetheless if a judge lacks a moral anchor in shifting seas. Kaufman may well have found such an anchor in a sincere belief in free speech and a free press. Or he may have found an anchor of a different sort in a dogged search for redemption in the eyes of those whose acceptance he craved—and, ultimately, in the eyes of history.
In the end, he got part of what he sought so desperately. The headline on his New York Times obituary was “Judge Irving Kaufman, of Rosenberg Spy Trial and Free-Press Rulings, Dies at 81.” In January 1953, after Kaufman rejected the Rosenbergs’ request for clemency, Ethel wrote bitterly to her lawyer: “It strikes me that Judge Irving R. Kaufman’s immortality is at last assured.” It wasn’t. But hers was.
Two highly regarded exceptions are Gerald Gunther, Learned Hand: The Man and the Judge (Knopf, 1994); and David M. Dorsen, Henry Friendly: Greatest Judge of His Era (Belknap Press/Harvard University Press, 2012). For a recent Supreme Court biography, see M. Margaret McKeown, Citizen Justice: The Environmental Legacy of William O. Douglas—Public Advocate and Conservation Champion (Potomac/University of Nebraska Press, 2022); reviewed in these pages by Jed S. Rakoff, May 25, 2023. ↩
See Filártiga v. Peña-Irala, 630 F. 2d 876 (2nd Cir. 1980). ↩
See, for example, Nestlé USA, Inc. v. Doe, 141 S. Ct. 1931 (2021). ↩