Author interview'There is uncertainty about Ethel. There's no hard evidence'

Biography tries to move judge out from under shadow of controversial Rosenberg spy case

Irving R. Kaufman, remembered primarily for sending couple to electric chair, shifted over time from being almost unquestioningly pro-government to an upholder of individuals’ rights

Renee Ghert-Zand is the health reporter and a feature writer for The Times of Israel.

Judge Irving Kaufman (Kaufman Family Photo Collection)
Judge Irving Kaufman (Kaufman Family Photo Collection)

After graduating from Harvard Law School, Martin J. Siegel began clerking for Irving R. Kaufman in August 1991. Only six months later, Kaufman, a prominent judge of the United States Court of Appeals for the Second Circuit in New York, died of pancreatic cancer.

This left Siegel sitting alone in the judge’s chambers for many weeks thinking about how Kaufman’s funeral had shockingly been interrupted by protesters shouting that the judge had murdered the Rosenbergs and that he should rot in hell.

Siegel was only cursorily aware of the controversial 1951 case Kaufman had presided over, in which Jewish married couple Julius and Ethel Rosenberg were found guilty of spying for the Soviets. Kaufman sentenced the Rosenbergs to death by electrocution.

“I was really astonished that 40 years later people would still care so much about this,” Siegel told The Times of Israel.

“I ruminated about how [Kaufman] was fascinating and his personality was so interesting. I thought about how hard he tried to overcome the Rosenberg case’s legacy and was successful in charting a course for himself in other areas of law and became such a public figure. But he could never get out from under that shadow. I thought that was really interesting and worth an exploration,” he said.

Attorney and author Martin J. Siegel (Courtesy)

Siegel’s interest was further piqued when a Cold War historian arrived from Washington to go through Kaufman’s papers and prepare them for transfer to the Library of Congress.

“That spurred me to grab those boxes and start going through them. It made me think that down the line I might be revisiting this. The germ of an idea for a book was planted then,” he said.

After three decades of meticulous legal and archival research, as well as interviews with Kaufman’s family members, former clerks, colleagues, and others, Siegel has written the recently published  “Judgement and Mercy: The Turbulent Life and Times of the Judge Who Condemned the Rosenbergs.” 

‘Judgment and Mercy: The Turbulent Life and Times of the Judge Who Condemned the Rosenbergs’ by Martin J. Siegel (Three Hills/Cornell University Press)

Siegel, an appellate attorney in Houston specializing in civil rights and constitutional law, takes a deep dive into the life, work, and complicated personality of Kaufman, who rose from Brooklyn immigrant’s rags to Park Avenue riches and the position of chief judge of the country’s second-most important court of appeals.

An accessible and illuminating read, “Judgement and Mercy” helps readers understand the judge who presided over headline cases like the Pentagon Papers and [Beatles singer] John Lennon’s bid to remain in the US when he was being deported based on drug charges in the UK.

The book paints a picture of a man full of energy driven by ambition and the desire to make an indelible mark not only in the courtroom but also in his significant extrajudicial work in the areas of juvenile justice, organized crime, judges’ compensation, and others.

Kaufman worked hard to ingratiate himself with people in powerful positions in government, media, and important social circles to be able to pull strings to get what he wanted.

“For him, the rules were meant to be evaded somehow. Barriers were meant to be driven around. That attitude never left him and he had quite a bit of enough success doing that. He didn’t see anything wrong with it,” Siegel said.

The comedian Milton Berle, right, with Irving Kaufman in 1944, became Kaufman’s best-known
client and a useful tool in helping Kaufman court powerful figures in Washington. (Kaufman
Family Photo Collection)

Sometimes this approach worked, and sometimes it didn’t. His greatest professional disappointments were not being appointed to the US Supreme Court and not managing to stay on as Chief Judge of the United States Court of Appeals for the Second Circuit past the mandatory step-aside age of 70.

Kaufman’s achievements were greatly tempered by the ongoing struggles of his wife and three sons with mental illness and substance abuse. Two of Kaufman’s sons predeceased him. Away from the court, his insufficient awareness of the personal fallout of the Rosenberg case, as well as his overbearing attitude and unrealistic expectations, set his family up in part for tragedy.

Irving Kaufman with his wife Helen and sons, approximately 1950. (Kaufman Family Photo Collection)

The following is an interview with Siegel, edited for length.

The Times of Israel: Kaufman died just six months after you began clerking for him. Did you get a chance to know him?

Martin J. Siegel: I started working for him in August of 1991 and he died in February of 1992. I certainly wasn’t as exposed to him and didn’t get to know him as well as other clerks who worked for him earlier in his tenure when he was more active. But I did get to know him when he was present for about three months or so before he began declining. In that interaction, I sort of saw his personality which I describe a lot in the book. I saw how he treated clerks and got a glimpse of how he functioned and saw the world.

What did you know about Kaufman before applying for the job with him?

I certainly knew Judge Kaufman was a liberal judge and a Democratic appointee. I knew that in terms of the divide between conservative judges and liberal judges on all appellate courts, he was certainly on the liberal side. I didn’t know much of the specifics, but he was well-known for First Amendment cases. But a lot of the other cases described in the book I wouldn’t have known and didn’t know. I certainly knew nothing about his history as a prosecutor or about his personal history and family.

Julius and Ethel Rosenberg, separated by heavy wire screen as they leave U.S. Court House after being found guilty by a jury of spying for the Soviet Union, 1951. (Roger Higgins for the New York World-Telegram and the Sun/ Public domain, via Wikimedia Commons)

You were taken aback by the protesters at Kaufman’s funeral. How much did you know about the Rosenberg trial at that point?

I was only partially aware of it. I certainly knew what the Rosenberg case was and that it was controversial, but I didn’t know much about it. I hadn’t read a book or seen a film about it. Back then, people — led by the [Rosenbergs’] sons — still maintained their innocence. The claim was they had been framed and there were questions about their guilt, let alone the conduct of the trial. So I kind of was aware of that, but hadn’t read enough to have much of an opinion one way or the other.

Today most people do not doubt the Rosenbergs’ guilt.

There’s a consensus and it’s not disputed any longer — not even by the Rosenbergs’ sons — that Julius was a spy and passed information to the Soviets, including atomic-related information. But there is real uncertainty about Ethel. There’s no hard evidence that she played any significant role in the conspiracy, and legally a person cannot be convicted of espionage unless they take an active role in it. The evidence against her at the trial came from her brother David Greenglass, who later admitted that he perjured himself. To this day there is just a kind of black box about Ethel Rosenberg’s participation, but it’s widely thought that she was at least knowledgeable and supportive as a pretty diehard communist.

John Lennon and Yoko Ono leave the Hilton Hotel in Amsterdam, March 31, 1969. (Eric Koch for Anefo, CC0, via Wikimedia Commons)

What do you make of Kaufman’s shift from siding with the government early in his career to becoming a more activist, progressive judge who sided more with individuals’ rights?

It was interesting for me to explore these two slices of liberalism and look at the way Kaufman developed and changed over time.

He was never really a conservative. He was in that species of Cold War liberal who was stridently anti-communist and was a protege of [FBI director J. Edgar] Hoover. But that didn’t interfere with or necessarily contradict the other form of liberalism he later transitioned to. I knew him more as a judge who was in line with the standard of the Warren Supreme Court and constitutional law of the 1950s and 1960s, and even the 1970s to some degree. I knew he was that kind of liberal. I knew less about him earlier as a pro-government Truman Democrat and how that related to his early decisions as a district court judge and his earliest thinking. In those years he was essentially following the Justice Department and its recommendations.

What were some of the key revelations for you as you worked on the book?

I had no idea about the Kaufman family’s dysfunction and tragedy, and it was interesting to learn how much family members related it to the Rosenberg controversy.

I was also astonished to learn how much enmeshed Kaufman was with The New York Times. What I have in the book is, unfortunately, only a glimpse of this because a lot of [then New York Times publisher Arthur Ochs]  Punch Sulzberger’s papers are still not publicly available at the New York Public Library. It was shocking to see how things worked behind the scenes to the degree to that Kaufman was treated as a sacred cow who couldn’t be touched.

Irving Kaufman presents President Reagan with reports of the President’s Commission on Organized Crime, 1986. (White House photographer/Public Domain)

Kaufman made a significant contribution to advancing civil rights, civil liberties, and constitutional rights, but many of his decisions were eventually overturned beginning in the conservative Reagan era.

The tragedy of it is that American law has moved in a very different direction and it’s become much more conservative at all levels. Kaufman’s approach to judging and the Constitution is very much a minority sort of approach these days. This has led to an important part of his legacy being slowly watered down.

At the same time, he’s always going to be remembered for the Rosenberg case, because it will always be in there as a constant in history. It will always be a historically significant case when people study the Cold War in the United States, and how the Cold War played out in American courtrooms.

Kaufman won’t really be able to escape [the Rosenberg case] and as I argued at length in the book, that wasn’t his finest hour as a judge in various ways. So in that sense, it’s tragic. I wanted to write this book to present a full picture of this person who had an important legal and judicial career. He has become a kind of caricature and was known only for one thing. Hopefully, this book is a sort of small corrective.

Judgment and Mercy: The Turbulent Life and Times of the Judge Who Condemned the Rosenbergs by Martin J. Siegel

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