The Judge Who Sentenced the Rosenbergs: It was the most high-profile espionage trial of the Cold War, and Irving R. Kaufman and his liberal and controversial legacy remain a source of debate.

• Author: Citron, Rodger D.
• Position: Martin J. Siegel's "Judgment and Mercy: The Turbulent Life and Times of the Judge Who Condemned the Rosenbergs"

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...