Kaufman, Irving Robert

(b. 24 June 1910 in New York City; d. 1 February 1992 in New York City), lawyer, government official, and federal judge who presided over the Rosenberg espionage trial.

Kaufman was one of five children of Herman Kaufman, who owned a tobacco humidifier manufacturing company, and Rose Spielberg. After graduating from DeWitt Clinton High School in the Bronx, New York, in 1925, he entered Fordham College, also in the Bronx, at the age of fifteen. Although he was Jewish, his fellow students called him “Pope Kaufman” for his excellence in the school’s required “Christian Doctrine” courses. He received a B.A. degree in 1928 and his law degree from Fordham Law School in 1931, graduating at the top of his class. Kaufman practiced law in New York City before becoming assistant United States attorney from 1936 to 1940, largely handling insurance disability fraud cases. He returned to a wide-ranging, lucrative, and politically tinged private practice where one partner, Gregory F. Noonan, was his former boss as U. S. attorney, and another, Edward P. F. Eagan, later became chairman of the New York State Athletic Commission.

In 1947 and 1948 Kaufman served as special assistant to United States attorney general Tom Clark, organizing a new Justice Department section on lobbying. He also became friends on a first-name basis with Federal Bureau of Investigation (FBI) director J. Edgar Hoover. “Hoover was like Jesus Christ to him,” observed an FBI official. Kaufman filtered and approved all candidates for positions in the U. S. attorney’s office and the federal bench in New York for Clark and the Truman White House. In October 1949 President Harry S. Truman nominated Kaufman to a federal judgeship. He took his seat the next month.

Kaufman’s greatest renown came from his presiding over the 1951 espionage trial of Julius and Ethel Rosenberg. The case took place against the backdrop of the Iron Curtain and the mid-twentieth century American anticom-munist zealotry. Kaufman sentenced the Rosenbergs to death in the electric chair after a jury found them guilty of having conspired to deliver atomic bomb secrets to the Soviet Union during World War II. Describing their crime as “treason” and “worse than murder,” Kaufman claimed that it had “caused . . . the Communist aggression in Korea, with the resultant causalities exceeding 50,000.” No such evidence, however, had been presented or existed. The espionage statute, Kaufman asserted, left him no choice but to act as he did. Despite exhaustive appeals, his ruling was not overturned. The Rosenbergs remain the only American civilians ever to be executed for espionage.

Kaufman had decided on the sentence before the jury handed down its verdict, perhaps even before the trial began. He held ex parte (private) conversations with prosecutors and other Justice Department, FBI, and Atomic Energy Commission officials about the sentence, and even with the Justice Department about future litigation strategies before the Supreme Court. Such conversations, although not totally uncommon at the time, violated judicial canons of ethics. Kaufman asked the prosecution to ascertain the Justice Department and FBI’s recommendation. When the chief prosecutor told him, after a telephone call made in his presence at a public function the night before the sentencing, that officials remained divided, Kaufman said he should refrain from making any recommendation. Kaufman announced in court that he would not ask prosecutors for a recommendation, and he told the press that he had sought “spiritual guidance” for his decision and engaged in a solitary struggle of conscience. Later that day, he passed on to Hoover a message that the FBI had done a “fabulous job on this case.” For over twenty years Kaufman used the FBI as a “private complaint bureau,” criticizing legal efforts to reopen the case and attempting to stifle the appearance of material favorable to the Rosenbergs.

In 1961 Kaufman was promoted to the Court of Appeals for the Second Circuit by President John F. Kennedy. He had almost received appointments in 1957 and 1959, orchestrating the campaigns himself and having strong bipartisan support both times. As an appellate judge, Kaufman’s experience as a trial lawyer and a trial judge filtered through everything he did. Facts, he noted, are “the bedrock of decision-making” and “work to limit the reach of judicial values.” But the relationship among facts, law, and the “judge’s individual character, unconscious though it may be, [is] of the essence” of judging.

Kaufman was a resolute defender of First Amendment rights. In 1971 he voted to release the Pentagon Papers detailing the evolution of the American involvement in Vietnam. In 1972 in Russo v. Central School District No. 1, he upheld a public school teacher’s right to abstain from reciting the Pledge of Allegiance. “Patriotism that is forced is false patriotism, just as loyalty that is coerced is the very antithesis of liberty,” Kaufman wrote. “Tolerance of the unorthodox and unpopular is the bellwether of a society’s spiritual strength,” he noted in International Society for Krishna Consciousness v. Barber (1981), while striking down a regulation which restricted religious solicitation on New York state fairgrounds. The exercise of First Amendment liberties, he wrote in 1984, “may do harm that the state is powerless to recompense. Yet this is simply the price that must be paid if we are to maintain a viable democracy.”

As chief judge from 1973 until 1980 Kaufman reduced the backlog of cases by strict scheduling of appeals and by assigning staff counsel to meet with opposing lawyers to try to settle the case before oral argument. In 1987 he took senior status. Kaufman wrote over 300 articles on nearly all aspects of the legal system, imploring for court, sentencing, and prison reform and improving the juvenile justice system. He emphasized the duty of judges to make their decisions understandable to laypeople. “We’re not writing just for ourselves but for the public,” he said. Kaufman served as chairman of the President’s Commission on Organized Crime from 1983 to 1986 and received the Presidential Medal of Freedom in 1987.

Judge Learned Hand wrote: “Irving Kaufman—a thoroughly competent lawyer, but interested primarily, if not completely, in recognition of Irving Kaufman.” He liked prominent cases for their notice and insisted on a punchy first paragraph in his opinions to grab the reader’s attention. Kaufman played the media well, never issuing opinions on Friday and having his clerks drop off copies in the press room. In 1979, with his term as chief judge due to expire, he unsuccessfully lobbied the Senate to raise the age maximum for chief judges to seventy-five. Kaufman quoted Lincoln’s comment about Chief Justice Salmon Chase that “Chase always knew he was indispensable to the country but just could not understand why the country did not realize it.”

Short and with heavy jaws, a prickly personality, and a reputation as a stern taskmaster, Kaufman exerted his authority in court quickly and effortlessly. “He looks like a cross between a rabbinical student and an Army sergeant,” Julius Rosenberg said upon first seeing him. Kaufman never escaped from the shadow of the Rosenberg case. He kept on his desk a card with quotations from the trial and, noted one friend, was “haunted by the thought that his obituary will read, ‘Rosenberg Judge Dies.’” Kaufman wanted to be remembered instead for his staunch civil libertarianism and for issuing in Taylor v. Board of Education (1961) the first order desegregating Lincoln Elementary School in New Rochelle, New York, a predominantly black public school, on the grounds that the district had been drawn to keep the school nearly entirely black. On 23 June 1936 he married Helen Rosenberg after working in her father’s law firm (she was not related to Julius or Ethel Rosenberg); they had three sons. Kaufman died of pancreatic cancer at the age of eighty-one.

Kaufman’s papers are in the Library of Congress. Tributes include Proceedings of a Special Session to Commemorate Twenty Five Years of Federal Judicial Service by the Honorable Irving R. Kaufman (1 Nov. 1974), 508 F.2d lxiv and In Memoriam: Honorable Irving R. Kaufman, Judge, United States Court of Appeals (2 June 1992), 972 F.2d cvii. On the Rosenberg case, sources include Ronald Radosh and Joyce Milton, The Rosenberg File: A Search for the Truth (1983); Louis Nizer, The Implosion Conspiracy (1973); John Wexley, The Judgment of Julius and Ethel Rosenberg (rev. ed., 1977); Curt Gentry, J. Edgar Hoover: The Man and the Secrets (1991); and Vern Countryman, “Out, Damn Spot: Judge Kaufman and the Rosenberg Case,” New Republic (8 Oct. 1977). Other sources include the New York Times (14 Apr. 1940, 9 Aug. 1948, and 6 Apr. 1951); Jeffrey B. Morris, Federal Justice in the Second Circuit (1987); Gerald Günther, Learned Hand: The Man and the Judge (1994); Sheldon Goldman, Picking Federal Judges: Lower Court Selection from Roosevelt Through Reagan (1997); Oliver Pilat, “Rosenberg Case: Judge Kaufman’s Two Terrible Years,” Saturday Evening Post (8 Aug. 1953); and Irving R. Kaufman, “The Anatomy of Decisionmaking,” Fordham Law Review (Nov. 1984). An obituary is in the New York Times (3 Feb. 1992).

Roger K. Newman