In 1949, thir­ty-nine-year-old Irv­ing Robert Kauf­man became the sec­ond-youngest fed­er­al judge in Amer­i­ca. The son of poor Gal­itzian­ers, he rose to fame as a boy pros­e­cu­tor,” suc­cess­ful pri­vate lawyer, and Demo­c­ra­t­ic Par­ty politi­co. After learn­ing of Pres­i­dent Truman’s appoint­ment, Kauf­man draft­ed remarks recall­ing his mea­ger begin­nings: My mind goes back to my ear­ly youth, the son of immi­grants, and I promise … I shall endeav­or … to make it a lot eas­i­er for those who are now strug­gling like I did 20 years ago.”

Before he could make good on that fun­da­men­tal­ly lib­er­al pledge, how­ev­er, a tan­gle of motives led him into a deci­sion often called one of the most reac­tionary in Amer­i­can law: he con­demned Julius and Ethel Rosen­berg to die in the elec­tric chair.

Fed­er­al author­i­ties pros­e­cut­ed the cou­ple in March 1951 for hand­ing the secret” of the atom­ic bomb to Joseph Stal­in. Keen­ly aware of the case’s poten­tial as a tool for pro­mo­tion, Kauf­man bad­ly want­ed the assign­ment and used backchan­nel con­nec­tions to get it. After the jury con­vict­ed the Rosen­bergs, he gave a near­ly hys­ter­i­cal speech denounc­ing them for a dia­bol­i­cal con­spir­a­cy to destroy a God-fear­ing nation” and blam­ing them for noth­ing less than trig­ger­ing the Kore­an War.

Find­ing any judge will­ing to show mer­cy for Sovi­et spies just then would have been chal­leng­ing, but few were as hard­wired to loathe the Rosen­bergs as Kauf­man. He was a pro­tégé of J. Edgar Hoover and shared his patron’s harsh anti­com­mu­nism. More deeply, he vil­i­fied these two peo­ple who’d once been just like him — poor Jews on the Low­er East Side, sec­ond-gen­er­a­tion Amer­i­cans born to immi­grant par­ents — but then spurned every­thing he stood for. 

While Kauf­man had grasped the life­line extend­ed how­ev­er grudg­ing­ly to Jews and oth­er new­com­ers, the Rosen­bergs saw Kaufman’s path as a cru­el mirage. Unlike many Jews, they hadn’t yet made it much beyond ghet­to-like pri­va­tion. To them, the Amer­i­can dream was a cov­er for class exploita­tion and vio­lent racism. In their let­ters to each oth­er from the Sing Sing Death House,” they scorned Kauf­man as an errand boy” for the cap­i­tal­ist boss­es and part of America’s Juden­rat—the Ger­man word for the Jew­ish coun­cils the Nazis formed to facil­i­tate geno­cide, and Julius’s pre­ferred term for the Jew­ish establishment.

The chasm between their world­views was all-encom­pass­ing. When Kauf­man charged the Rosen­bergs with a dia­bol­i­cal plot to destroy Amer­i­ca, it was his Amer­i­ca he was talk­ing about: the promised land that Jews like him had sought for mil­len­nia and final­ly found. The defen­dants were born in Amer­i­ca, reared in Amer­i­ca and edu­cat­ed in the pub­lic schools of Amer­i­ca,” he wrote in an opin­ion in 1953, reaf­firm­ing the death sen­tences. They had lived their entire lives among us; they had all the advan­tages of our free insti­tu­tions and had enjoyed the priv­i­leges of Amer­i­can cit­i­zen­ship.… [Yet] they chose the path of trai­tors and decid­ed to aban­don those who had nur­tured and fed them in favor of a nation whose ide­ol­o­gy was repug­nant to every­thing we have learned, lived for and to which we have been ded­i­cat­ed.” As his wife wrote him in a per­son­al note around the same time, Don’t let the com­mies get you down. Keep remem­ber­ing — they are try­ing to under­mine the safe­ty of our coun­try. Where could we go from here?” Nowhere, Kauf­man knew.

Yet as a route to the top spot in Kaufman’s uni­verse — the Jew­ish seat” on the US Supreme Court, then held by Felix Frank­furter — the Rosen­berg case failed to deliver.

The sen­tences were wide­ly pop­u­lar when first imposed, but oppo­si­tion slow­ly grew over the next two years, often from oth­er Jews. Is this the Drey­fus case of Cold War Amer­i­ca?” one arti­cle asked. A rab­bi in Chica­go charged Kauf­man with lean­ing over back­ward in his desire to show that Jews con­demn trea­son.” The Cal­i­for­nia Jew­ish Voice despis[ed] the cow­ard­ly Jew­ish judge” for emu­lat­ing fas­cist and com­mu­nist jus­tice with such dra­con­ian pun­ish­ment. Crit­ics also not­ed that no Jews had served on the jury. In Brooklyn’s Jew­ish Exam­in­er, anoth­er rab­bi wrote that Kaufman’s well-pub­li­cized vis­it to a syn­a­gogue to med­i­tate on the sen­tences had been a pret­ty ges­ture. But he should have gone to the Tal­mud [where he] would have found that Jew­ish tra­di­tion has always been unal­ter­ably opposed to the death penalty.”

The case, which had long before become a sort of poi­soned chal­ice, haunt­ed him quite lit­er­al­ly to the grave.

The unex­pect­ed crit­i­cism stung. In a meet­ing with a colum­nist and an offi­cial from the Anti-Defama­tion League in his Park Avenue apart­ment, Kauf­man admit­ted feel­ing ter­rif­ic pres­sure in the Rosen­berg case from Jew­ish sources. Sev­er­al rab­bis have been to see him. Mem­bers of his own syn­a­gogue are putting pres­sure on him. He is stand­ing alone.” He asked them, the FBI, and friend­ly jour­nal­ists to press his case in pub­lic, and they did. Although the move­ment in sup­port of clemen­cy for the doomed cou­ple grew here and around the world, and even­tu­al­ly unit­ed fig­ures as dis­parate as Picas­so and the Pope, most Amer­i­cans and Jews con­tin­ued to sup­port the exe­cu­tions up to and after they were car­ried out amid riots and inter­na­tion­al ten­sion in June 1953.

After­ward, as tem­per­a­tures cooled, Jews made covert efforts to either reward or pun­ish Kauf­man. Those who want­ed to pro­mote him to the next lev­el in the judi­cia­ry, the Court of Appeals, saw him as good for the Jews. Julius Klein, head of a Jew­ish Amer­i­can vet­er­ans’ group, wrote US Sen­a­tor Jacob Jav­its — also a Kauf­man sup­port­er — to say that because of what Kauf­man did in the Rosen­berg case, we Amer­i­can Jews can walk erect on Main Streets in Amer­i­ca.… My only inter­est in Kauf­man is a patri­ot­ic one. It means noth­ing to me … but it means a lot to our people.

Frank­furter, on the oth­er hand, vowed to block Kaufman’s ascent to the Supreme Court, writ­ing to his friend, the famous judge Learned Hand: I despise a judge who feels God told him to impose a death sen­tence.… I am mean enough to try to stay here long enough so that [Kauf­man] will be too old to suc­ceed me!!”

Kauf­man even­tu­al­ly won pro­mo­tion to the Court of Appeals, but he nev­er reached the Supreme Court. In thir­ty years on the appel­late bench, how­ev­er, he worked hard to rel­e­gate the Rosen­berg case and its ugly end­ing to the past. His deci­sions lib­er­al­ized the insan­i­ty defense, reformed Atti­ca-era pris­ons, advo­cat­ed con­sti­tu­tion­al pro­tec­tion for poor peo­ple, spared John Lennon from polit­i­cal­ly moti­vat­ed depor­ta­tion, great­ly expand­ed free speech, brought for­eign human rights abusers to jus­tice in US courts, and more. Broad­ly speak­ing, he kept his 1949 promise to make it eas­i­er for peo­ple strug­gling as he once had.

But he could nev­er out­run the Rosen­bergs. New rev­e­la­tions in the 1970s showed he’d held improp­er, secret con­sul­ta­tions with pros­e­cu­tors, includ­ing the infa­mous Roy Cohn, dur­ing the tri­al. In the era of détente, death sen­tences imposed dur­ing the throes of McCarthy­ism seemed like a prim­i­tive and fanat­i­cal over­re­ac­tion. Kauf­man was dogged by cour­t­house protests, denun­ci­a­tions in print, and calls for impeachment.

He tried to hit back with op-eds penned by friends and sup­port from the orga­nized bar. In the New York Times, he com­plained plain­tive­ly of a con­tin­u­ing pat­tern of harass­ment because of a tri­al I presided over more than 20 years ago” — of old issues” wrong­ful­ly obscur­ing his more recent lib­er­al­ism. Worse still, his imme­di­ate fam­i­ly suf­fered from men­tal ill­ness, sub­stance abuse, and sui­cide attempts due in part, some rel­a­tives believed, to the nev­er-end­ing pres­sure cook­er of the Rosen­berg ordeal.

His death at eighty-one should final­ly have brought release. As one of his last two law clerks, I sat in the same syn­a­gogue he claimed to have vis­it­ed while the rab­bi eulo­gized him. Just then, some­one behind me stood up and bel­lowed, He mur­dered the Rosen­bergs! Let him rot in hell!” The case, which had long before become a sort of poi­soned chal­ice, haunt­ed him quite lit­er­al­ly to the grave.

Read more on Mar­tin J. Siegel’s Judg­ment and Mer­cy: The Tur­bu­lent Life and Times of the Judge Who Con­demned the Rosen­berg.

Mar­tin J. Siegel clerked for Judge Kauf­man after grad­u­at­ing from Har­vard Law School. He then served as an Assis­tant U.S. Attor­ney in New York and a staffer on the U.S. Sen­ate Judi­cia­ry Com­mit­tee. He now prac­tices and teach­es law in Hous­ton, Texas. Siegel’s writ­ing has appeared in The New York Times, Los Ange­les Times, Hous­ton Chron­i­cle, and legal journals.