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

  • Review
By – March 13, 2023

Mar­tin J. Siegel is a promi­nent attor­ney in Hous­ton, Texas and the last clerk of Judge Irv­ing R. Kauf­man, who served on the fed­er­al bench in New York City. Kauf­man is best known for pre­sid­ing over the infa­mous 1951 tri­al of Ethel and Julius Rosen­berg, both charged with pass­ing secrets of the atom­ic bomb to the Sovi­et Union. (Iron­i­cal­ly, the maid­en name of Kaufman’s wife was Rosen­berg.) The jury found the Rosen­bergs guilty of what J. Edgar Hoover, the direc­tor of the Fed­er­al Bureau of Inves­ti­ga­tion, called the crime of the cen­tu­ry.” Kauf­man imposed the death penal­ty on the pair, and they were exe­cut­ed on Fri­day, June 19, 1953, short­ly before the onset of the Jew­ish Sab­bath — despite or in spite of the fact that they were com­mit­ted com­mu­nists and atheists.

Kaufman’s sen­tenc­ing was severe­ly crit­i­cized at the time and would lat­er come to be seen as undu­ly harsh. The Sovi­et Union, after all, was an ally of the Unit­ed States when the crime was com­mit­ted; and many believed that Ethel Rosen­berg was a mere acces­so­ry to the deeds of her hus­band. Leg­end has it that Kaufman’s sen­tenc­ing tor­pe­doed any chances he had of achiev­ing his ulti­mate ambi­tion: to serve on the Supreme Court.

The tri­al and exe­cu­tions of the Rosen­bergs remain con­tro­ver­sial to this day, and they’ve spawned a vast his­tor­i­cal and polem­i­cal lit­er­a­ture. Judg­ment and Mer­cy is the lat­est con­tri­bu­tion. It seeks to pro­vide a com­plete por­trait of Kauf­man by dis­tin­guish­ing between the bad judge of the Rosen­berg tri­al and the good jurist who cham­pi­oned a vari­ety of caus­es dear to the hearts of pro­gres­sives. These includ­ed broad­en­ing the insan­i­ty defense, defend­ing civ­il lib­er­ties and the deseg­re­ga­tion of neigh­bor­hood schools, pros­e­cut­ing indi­vid­u­als accused of tor­ture out­side the Unit­ed States, and encour­ag­ing prison reform. Siegel, to be sure, is not the first to empha­size this bifur­ca­tion in Kaufman’s biog­ra­phy. In 2019, twen­ty-sev­en years after Kaufman’s death, legal jour­nal­ist Lin­da Green­house claimed that he had ded­i­cat­ed his life to try­ing to make sure that the first para­graph of his New York Times obit­u­ary would not be Judge Irv­ing R. Kauf­man, who sen­tenced the Rosen­bergs to death.

That being said, it is doubt­ful whether the book will con­vince the more febrile crit­ics of Kauf­man to show him any sym­pa­thy. Burt Neuborne, a founder of the Bren­nan Cen­ter for Jus­tice at the New York Uni­ver­si­ty School of Law, described Judg­ment and Mer­cy as a relent­less depic­tion of a deeply flawed Amer­i­can judge. More judg­ment than mer­cy, this book cap­tures Irv­ing Kauf­man to a tee.” As Siegel notes, Kauf­man could be a dif­fi­cult per­son; and his ini­tials, IRK, accu­rate­ly describe the feel­ing he often aroused in fel­low jurists, clerks, fam­i­ly mem­bers, and observers.

One inter­est­ing fea­ture of the Rosen­berg tri­al was its Jew­ish aspect. Amer­i­can Jews were hor­ri­fied by the tri­al — com­ing only six years after the end of World War II — because it seemed to con­firm the anti­se­mit­ic charge, pop­u­lar dur­ing the 1930s, that many Jews were com­mu­nists and thus dis­loy­al to the Unit­ed States. This was despite the fact that Kauf­man, as well as the pros­e­cut­ing fed­er­al attor­ney and sev­er­al mem­bers of his staff, were Jews. Jew­ish orga­ni­za­tions and indi­vid­u­als divorced them­selves from the Rosen­bergs, empha­sized that Stal­in and his min­ions were hos­tile to Jews, Judaism, Jew­ish cul­ture, and Israel, and stressed that Judaism and com­mu­nism were incom­pat­i­ble. The Amer­i­can Jew­ish Com­mit­tee even pub­lished a lengthy analy­sis of the tri­al, in defense of Kaufman’s sen­tenc­ing. Despite Amer­i­can Jews’ fears, there was no evi­dence that the Rosen­bergs’ Jew­ish back­ground was a fac­tor either in their arrest or in the jury’s guilty deci­sion; and the case did not result in any anti­se­mit­ic back­lash. Whether or not Kaufman’s own deci­sion sought to reas­sure Amer­i­cans of the loy­al­ty of Amer­i­can Jews — that remains pure speculation.

Edward Shapiro is pro­fes­sor of his­to­ry emer­i­tus at Seton Hall Uni­ver­si­ty and the author of A Time for Heal­ing: Amer­i­can Jew­ry Since World War II (1992), We Are Many: Reflec­tions on Amer­i­can Jew­ish His­to­ry and Iden­ti­ty (2005), and Crown Heights: Blacks, Jews, and the 1991 Brook­lyn Riot (2006).

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