Judge Irving Kaufman, the Liberal Establishment, and the Rosenberg Case

Men make their own history, but they do not make it just as they please; they do not make it under circumstances chosen by themselves, but under circumstances directly encountered, given and transmitted from the past.

—Karl Marx, The Eighteenth Brumaire of Louis Bonaparte

This sentence encapsulates what Karl Marx believed was the role of individuals in history. Nearly all of us have been exposed to the “great man [or woman]” theory of history, but most readers of Monthly Review probably accept the more sophisticated view that history moves because of various forces at work, and that individuals play roles within the limits set by those forces. The work examined here, Judgment and Mercy: The Turbulent Life and Times of the Judge Who Condemned the Rosenbergs, by Martin J. Siegel, is a good example of the pitfalls of seeing history through the “great man” lens.

Judgment and Mercy argues that Judge Irving R. Kaufman, the man who sentenced my parents, Julius and Ethel Rosenberg, to death, did something terrible and then “atoned” for what he did by becoming a progressive stalwart during his over forty years as a judge.¹ By concentrating on Kaufman as an individual, Siegel plays down the role of the anti-Communist consensus that included virtually the entire political spectrum by the end of the 1940s. By emphasizing the apparent shift in Kaufman’s post-Rosenberg career, Siegel also plays down the consistency of liberalism. In fact, there is no contradiction between the virulent anti-Communism of the McCarthy era and improvements in civil liberties and civil rights over the course of the 1950s and ’60s.

Kaufman and the Rosenberg Case

When sentencing the Rosenbergs to death on April 5, 1951, Kaufman stated: “I consider your crime worse than murder.… I believe your conduct putting into the hands of the Russians the A-bomb years before our best scientists predicted Russia would perfect the bomb has already caused, in my opinion, the communist aggression in Korea…and who knows but that millions more innocent people may pay the price of your treason.”²

With these words justifying the imposition of the death penalty on my parents, Kaufman made his place in history. Siegel opens his book with the scene at Kaufman’s funeral. A handful of people picketed while one brave soul disturbed the tranquility in the synagogue by interrupting the eulogy and calling out, “He murdered the Rosenbergs! Let him rot in Hell!!”³ Siegel’s goal in his book is to show that Kaufman was much more than his role in that case. After describing Kaufman’s career up to the execution, Siegel, who served briefly as one of his law clerks, describes how “an almost slavishly pro-government judge became a leading liberal on the federal bench.”⁴

To people on the left, Kaufman is remembered not only for the death sentence, but for putting his thumb on the scales of justice during the trial, virtually guaranteeing the jury’s guilty verdict. Some will know about his violations of judicial ethics by having secret discussions with the prosecution before, during, and after the trial, as well as his astonishing speech sentencing my parents to death because their “treason” had caused the Korean War.⁵

But there is more to understand about the career of Kaufman. According to Siegel, Kaufman attempted to redeem himself by becoming a progressive stalwart in his subsequent years on the bench. Many speculate that this “change” came after public opinion turned against the death sentence and after Joseph McCarthy was censured by the Senate. Kaufman felt the criticism and sought to remake himself. In a separate article, Siegel writes:

In thirty years on the appellate bench, however, [Kaufman] 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.⁶

In Siegel’s book, Kaufman comes across as a determined self-promoter in pursuit of success. He pushed to be appointed to the bench, lobbied to be assigned the Rosenberg case, sought publicity from the New York Times, and cultivated relationships with powerful individuals, including J. Edgar Hoover and Attorney General Tom Clark. He pushed to be promoted to the Second Circuit Court of Appeals, worked hard for a Supreme Court seat, and finally made a deal with President Ronald Reagan to receive the Medal of Freedom.⁷

Siegel’s presentation of Kaufman’s behavior in the case of my parents covers the fifth through eighth chapters, as well as the fourteenth. Here and elsewhere, we see Kaufman acting as an individual in pursuit of success. There is no question as to Kaufman’s intense personal ambitions. However, it is also true that, early on, he realized that successful self-promotion would depend on how well he responded to the needs of the powerful people to whom he would be beholden. The U.S. justice system in the late 1940s and most of the ’50s was dominated by the need to destroy Communism as a political force within the United States. Kaufman’s wholehearted embrace of a role in that project, combined with self-promotion, generated his behavior while presiding over my parents’ trial.

During the late 1940s, the U.S. ruling class sought to roll back some of the political changes that had occurred during the periods of the Great Depression, the New Deal, and the Second World War.⁸ The ruling class knew that a strong Communist Party, together with their liberal allies in the left of the New Deal coalition, were potential obstacles to prosecuting both the Cold War abroad and the rollback of the rights of labor unions at home. Thus, they launched a full-blown assault on Communists and “fellow travelers.”

The positive view of the Soviet Union that was promoted during the years of the wartime alliance and the (at least partial) acceptance of U.S. Communists as part of the U.S. political system were to be consigned to the dustbin of history.⁹

Kaufman played a role in the change in public opinion. This can be seen in a rarely quoted part of his sentencing speech: “The issue of punishment in this case is presented in a unique framework of history. It is so difficult to make people realize that this country is engaged in a life and death struggle with a completely different system.… I believe that never at any time in our history were we ever confronted to the same degree that we are today with such a challenge to our very existence.”¹⁰

Clearly, his sentencing speech was part of a “team” effort to build an anti-Communist national consciousness.¹¹ When we turn more specifically to my parents’ case, it is also important to note that Kaufman was not an individual flying solo. Before the trial, the legal and judicial establishment coalesced around the need to obtain a death sentence for my father as a means of ensuring that he would confess and name his alleged co-conspirators. Siegel acknowledges this, but only after emphasizing Kaufman’s individual actions, thus obscuring the larger context.

The reason the government wanted my father to cooperate is because they knew—from an ultra-secret program, codenamed Venona—that he was an agent recruiter and could identify a number of spies.¹² At a hearing before the Joint Congressional Committee on Atomic Energy, months after my parents’ arrests and only weeks before the trial, members of the prosecution and the Atomic Energy Commission (AEC) sought support from Congress to have David Greenglass, the chief witness for the prosecution and my mother’s brother, testify about the important scientific information that Greenglass had allegedly supplied to the Soviets through my father. The Venona decrypts had been unable to reveal any information on what exactly Greenglass had turned over to my father beyond the layout of the buildings at Los Alamos, where he had been stationed, and the names of scientists who “might” be subject to recruitment.

At the hearing, one of the prosecutors testified that you could not receive a death sentence for describing the layout of buildings at Los Alamos or listing the names of possible scientists who could be recruited. Evidence of much more serious crimes was necessary. Greenglass had already told the Federal Bureau of Investigation (FBI) that he had provided a rough description of how the implosion-type atomic bomb was triggered. Assistant Attorney General Myles Lane (who later assisted U.S. Attorney Irving H. Saypol with the prosecution), together with the head of the AEC, Gordon Dean, persuaded members of Congress to support the AEC’s decision to have Greenglass disclose this classified information at the trial. Divulging this would strengthen the seriousness of my parents’ alleged offense and be sufficient evidence to persuade the judge to impose a death sentence.¹³ Long before he put his personal stamp on the trial and sentence, Kaufman knew what the rest of the “team” wanted. There are two documents that support the idea that Kaufman had agreed to sentence my father to death before the trial began.¹⁴

Kaufman at the Trial

Siegel describes Kaufman’s secret meetings with prosecutors before and during the trial.¹⁵ He makes it clear that Kaufman’s “apparent pre-judgment of the Rosenbergs’ guilt led him to…intervene in the trial in ways that almost always transparently helped the prosecution.”¹⁶ He concludes that in doing so, Kaufman betrayed “his basic duty” as a judge.¹⁷ Nevertheless, in summary he writes, surprisingly: “Did Kaufman give the Rosenbergs a fair trial? No and yes.”¹⁸ Despite his discussion of Kaufman’s ex parte contacts with the prosecutors as well as his bias during the trial, Siegel then asserts: “Yet the trial was fair in the larger sense that Kaufman didn’t fundamentally change the Rosenbergs’ defense or the outcome of the case. They were convicted by the persuasive evidence against them, the temper of the times, and their lawyers’ anemic response to the government’s legal onslaught—not because of Kaufman.”¹⁹

Here Siegel employs a sleight of hand in order to have it both ways. He admits that Kaufman put his thumb on the scale of justice, but then states that it did not matter. This is what lawyers call a “harmless error” argument. That is, the judge erred, but since the error would not have changed the outcome, the defendant’s rights were not violated. However, as a law professor, Siegel also knows that allowing secret communication between the judge and prosecution to plan trial strategy is such a basic violation of a defendant’s constitutional due process rights that it could never be considered a “harmless error.”

The jury’s decision rose and fell on the credibility of the chief prosecution witnesses, David and Ruth Greenglass, who were confessed members of the same alleged conspiracy.²⁰ Kaufman allowed and abetted the prosecution in presenting evidence that led the jury to disbelieve my parents. He permitted testimony about the Communism of my parents, allegedly to establish motive, as well as a tag-team cross-examination of my mother about her grand jury testimony. Both sets of testimony helped destroy my parents’ credibility. For the prosecution side, Kaufman promoted Ruth Greenglass’s credibility when defense attorney Alexander Bloch tried to impeach her testimony. Thus, the answer “no,” Kaufman did not give my parents a fair trial, contradicts the “yes,” which suggests the judge’s behavior made no difference.²¹

Eighteen pages after his “no and yes” assertion, Siegel introduces the broader context—that the leaders of the “team,” composed of the prosecution, members of the AEC, and members of Congress, were coming to an agreement. Kaufman knew that a death sentence was important to the government. Siegel contends that while contemplating sentencing Kaufman had not fully decided what to do, but the evidence in his book is that Kaufman had already determined to give my father the death sentence if he was convicted.²² Siegel’s assertion as it relates to my mother’s sentence might be correct, but he provides no evidence.

While considering the sentences, Kaufman consulted other judges and prosecutors. He also instructed Saypol to go to Washington and sound out officials there. All agreed my father should get the death penalty, but there was conflict about my mother’s sentence. Hoover opposed the death sentence for her. Siegel notes that Hoover’s memo recommending against the death sentence for my mother was drafted by Special Agent Robert Lamphere. He fails, however, to note that Lamphere drafted that memo because he was the FBI’s special liaison to the Venona project and that he and the chief linguist-decrypter Meredith Gardner had concluded that my mother was not a spy, because, unlike other agents, she had never been given a code name and only two messages mentioned her.²³ Hoover could not reveal the existence of Venona before the trial, so he pointed to the potential fall-out in public sentiment from executing the mother of two young children. Siegel never makes the connection between the Venona decrypts and Hoover’s recommendation, even though the facts about her from Venona are presented.²⁴

Two things were operating in tandem. First, Kaufman was ambitious, but he was also part of a broad movement of anti-Communist liberals who sought to carve out a version of the U.S. polity that was supportive of individual rights and “downtrodden groups,” but not Marxists. Given the need for there to be convictions and a death sentence, at least for my father, Kaufman’s decision-making should be understood as part of this movement. Second, this leaves the issue of my mother’s sentence as an open question. Siegel spends significant time in the book highlighting Kaufman’s disgust that my parents, children of poverty-stricken Jewish immigrants, had failed to follow the American dream, as Kaufman himself had done, and instead had become Communists.

It is arguable that, unlike in the case of my father, Kaufman’s decision to sentence my mother to death was not a group decision. However, at the Justice Department, even before her arrest, the view was expressed that she could be used as a kind of “lever” against my father.²⁵ It is possible that Kaufman reasoned that the pressure on her and my father would be greater if she were given a death sentence, rather than thirty years in prison.²⁶

Despite Hoover’s misgivings expressed in his sentencing recommendation letter, once the sentences had been imposed, the governmental apparatus closed ranks in support, as did almost all the intellectual and political establishment. By the time of the executions, the mass media (with few exceptions) and the judiciary (including the Supreme Court) had played a role in making sure that the only way my parents would save their lives would be by cooperating and naming names. This was conveyed in person to both my parents by James Bennett, director of the Bureau of Prisons, on June 2, 1953.²⁷ The Supreme Court had denied certiorari on May 25, and Kaufman had fixed the execution date for June 18 (my parents’ fourteenth wedding anniversary).

Kaufman and the Supreme Court in June of 1953

Judicial machinations during the last weeks of my parents’ lives demonstrate the judiciary’s subservience to political necessity. On Monday, June 15, 1953, the Supreme Court denied a stay of execution that would allow my parents to appeal the denial of an evidentiary hearing under the Federal Criminal Code. That section permitted convicted defendants to get a hearing based on newly discovered evidence. Papers submitted to Kaufman the first week of June referred to three pieces of new evidence that made a prima facie case that the Greenglasses had committed perjury at the trial. Here is how Siegel describes the motion: “On June 8 [the papers had actually been filed June 5] Bloch…brought a motion based on new evidence, including proof that the Rosenbergs’ console table—not produced at trial and suddenly located in plain sight at Julius’s mother’s apartment—wasn’t a special device for copying microfilm but just a garden-variety item from Macy’s.… Kaufman recessed for fifteen minutes, came back and read out a thirty-minute oral opinion rejecting the motion.”²⁸

This description omits something very important. Among the documents filed were the so-called Rogge papers. These were internal memoranda from the law firm of O. John Rogge, who had been hired by the Greenglasses in June of 1950, immediately after David was arrested. It was Rogge who negotiated Greenglass’s guilty plea in return for his and his wife’s testimony against my parents. Years later, Greenglass told his biographer Sam Roberts that he had warned the FBI that if they “touched a hair on [Ruth’s] head, I’ll commit suicide and you’ll have no case!” There is no independent contemporaneous evidence for this statement by Greenglass, who was described by his wife in one of the Rogge memos as someone who often talked of himself as if he were a character in the movies.²⁹

Importantly, in those memos there was evidence that the Greenglass story had changed between the time of his arrest to the time of the trial, directly contradicting trial testimony that the Greenglasses had “told the truth” from the beginning. These papers had been supposedly stolen from the Rogge law firm’s office and published in France. Unknown to Bloch, the FBI had briefed Kaufman about the content of those documents on May 11, 1953.³⁰ When I wrote the chapter about Kaufman in the second edition of my book, We Are Your Sons, cowritten with my brother, I surmised that the reason Kaufman was able to write much of his opinion before he had even heard the oral arguments was due to the briefing he had received from the FBI.³¹

The Court of Appeals denied a stay or a hearing in record time on June 11. After denying a stay so the lawyers could present oral arguments, the Supreme Court went on summer recess. It was at that point that two outside lawyers, Fyke Farmer and Daniel Marshall, appeared, representing an individual, who in legalese is described as a “next friend.” The argument they presented was that my parents had been tried under the wrong law. The Atomic Energy Act of 1946 stated that a death sentence could only be imposed if a jury recommended it. In effect, these lawyers argued that this law partially repealed the sentencing provision in the Espionage Act. On the morning of June 16, Farmer and Marshall presented their petition to Supreme Court Justice William O. Douglas. Meanwhile, Bloch presented his own petition to the justice.

The night of June 16, while Douglas was considering whether or not to grant the stay, Justice Robert Jackson arranged for the Chief Justice, Fred Vinson, to meet secretly with Attorney General Herbert Brownell Jr. and Solicitor General Robert Stern to discuss what to do if Douglas were to do so. Kaufman was told about this meeting and he “very confidentially advised” the FBI that, during the discussion, Vinson had promised that if Douglas were to grant the stay, he would call the court back into session on June 18 “to vacate any stay.”³² Vinson was promising to overturn whatever stay Douglas issued without seeing the reasoning. Douglas granted a stay on June 17, accepting that Farmer and Marshall had made a substantial point that required full consideration by District and Appeals Courts, with full briefings by attorneys from both sides. Brownell then went through a charade of “asking” for a special session of the Supreme Court (a session Vinson had already promised him) and Vinson, of course, agreed to Brownell’s “request.” The Supreme Court heard oral arguments on June 18 (from Farmer and Marshall, as well as Bloch and his team) and a six-to-three majority vacated Douglas’s stay on June 19. Justice Felix Frankfurter wrote that “all minds were made up…before we met.”³³ This was Chief Justice Vinson, together with his Supreme Court majority, behaving as members of a “team.”³⁴

Perhaps nothing demonstrates the group nature of the prosecution and sentencing more than the retrospective statement by William Rogers, who was deputy attorney general in 1953. Interviewed by journalist Sam Roberts in the late 1990s, Rogers made it clear that the goal was to induce my parents to talk, not to kill them. When Rogers was asked why the government did not achieve its goal, even with my mother, Rogers told Roberts, “She called our bluff.”³⁵ The word “our” in that statement suggests it was a group effort. Siegel’s focus on Kaufman as an individual misses this.³⁶

Cold War Liberalism and Anti-Communism

Siegel also misses a key political point when he seeks to analyze the “transformation” of Kaufman from hanging judge to progressive jurist. There is no contradiction between the Kaufman of the trial and the Kaufman who ordered the integration of schools in New Rochelle, New York, supported the New York Times in publishing the Pentagon Papers, broke new ground in permitting foreigners to sue their foreign torturers under the Alien Torts Act, and more.³⁷

Siegel seems unaware that liberals Harry Truman, Hubert Humphrey, Frankfurter, John F. Kennedy, and Lyndon B. Johnson, as well as their intellectual enablers, Arthur Schlesinger Jr. and Sidney Hook, were also virulently anti-Communist. The American Civil Liberties Union, having purged Communist Elizabeth Gurley Flynn from their board, went out of its way to assert that there were no civil liberties issues in my parents’ case. Meanwhile, a lawyer for the organization, Morris Ernst, corresponded with the FBI, saying he would try to become my parents’ lawyer and urge them to confess.³⁸

When Truman took over the presidency, he broke with Franklin D. Roosevelt’s goal of a postwar partnership with Joseph Stalin’s Soviet Union. The liberal Truman excoriated the right-wing Republican Congress of 1947–48 as he ran for re-election. At the same time, his campaign strategy was not only to attack the Republicans, but to attack Henry Wallace and the Progressives who had mounted a left-wing challenge. His red baiting of the Progressive Party worked, and Wallace obtained just 2.4 percent of the vote.³⁹ Two years later, Truman went to war in Korea and started the twenty-five-year U.S. effort to defeat the Vietnamese Communists.

Liberal icon Humphrey, who had made a name for himself supporting a tough civil rights plank at the 1948 Democratic Convention, introduced the “concentration camp amendment” to the Internal Security Act when Congress considered it in 1950.⁴⁰ Though some have claimed Humphrey was trying to defeat the bill with a poison pill, four years later he introduced a law outlawing the Communist Party. He also slavishly supported Johnson’s escalation of the war against the Vietnamese between 1965 and 1968.⁴¹ Moreover, we all know that it was on Kennedy’s watch that the United States fully committed itself to defeat the revolutionary nationalist and Communist forces in Vietnam and Laos.⁴² Finally, let us not forget the Bay of Pigs invasion, the Cuban Missile Crisis, and Operation Mongoose.⁴³

U.S. politicians beginning in the 1950s, however, also realized that the Jim Crow South was a burden in the fight for “hearts and minds” in the international Cold War. Thus, beginning with halting steps in the 1950s, the federal government began enforcing the Fourteenth and Fifteenth amendments. There was no contradiction between these progressive steps and a strong pursuit of anti-Communist policies at home and abroad. Support for civil rights and voting rights for African-Americans, however, was complemented by the wire-tapping and harassment of Martin Luther King Jr. and even stronger repressive activities against more radical elements in the Black liberation movement.⁴⁴

One of the most significant intellectual supports for the dual goals mentioned above came with the publication of Schlesinger’s The Vital Center and the subsequent creation of Americans for Democratic Action. Schlesinger’s argument was that liberals needed to fight against communists and reactionaries, but readers soon realized that he felt the right-wing reactionaries were not real threats because they were “familiar” enemies, whereas Marxists were secretive and hidden.⁴⁵ It is thus quite consistent with Schlesinger’s worldview that he is on record publicly supporting the death sentence imposed by Kaufman.⁴⁶

In 1950, former Marxist philosopher Hook published “Heresy, Yes—But Conspiracy, No” in the New York Times Magazine.⁴⁷ In that article, Hook presented a detailed argument as to why liberalism and repression of Communists were compatible. The title says it all: Communists operate in secret. If they were presenting their ideas honestly, out in public, they would be no threat—but because they operated in secret, they had forfeited their rights.

Returning to the case of the Rosenbergs, we have the behavior of Frankfurter, who, according to Brad Snyder’s masterful biography of the justice, wanted the Supreme Court to grant certiorari and subject the original trial to Supreme Court review. However, his reason was that granting a review would show the world that the U.S. justice system had been “fair” to the Rosenbergs. Unlike the situation with Justice Hugo Black, it is unclear if Frankfurter would have voted to overturn the conviction.

Frankfurter’s career on the Supreme Court demonstrates the consistency of the liberal belief in civil liberties with the recognition that control of communism and communists is essential. As a Harvard law professor, Frankfurter was, in the 1920s, a full-throated supporter of Nicola Sacco and Bartolomeo Vanzetti, who had been convicted in a state-level court. He later acted as an unofficial adviser to Roosevelt. During his Supreme Court career, he began to take stronger positions in favor of government activity restricting certain dangerous behaviors. For example, in 1960, he wrote the opinion upholding the constitutionality of the Internal Security Act of 1950. As the Warren Court warmed to the (originally minority) views of Black and Douglas on civil liberties, its new majority ultimately turned both the Internal Security Act and other repressive laws into dead letters. Frankfurter then found himself dissenting from the increasingly liberal majority.⁴⁸

By the mid-1950s, the political destruction of the Communist and fellow-traveling left was complete. Accordingly, the new majority on the Supreme Court could loosen the bonds on freedom of association that had appeared necessary in the late 1940s. Nevertheless, the “stick” of repression remained available if needed. At least two impeccably liberal Supreme Court justices, Robert Jackson and Arthur Goldberg, articulated the need to have that “stick” at the ready. They explicitly supported the assertion that “the Constitution is not a suicide pact.” What they meant by that is that the rights protecting dissenters enshrined in the Bill of Rights—particularly the First Amendment protections regarding speech and assembly—cannot be used to protect people hell-bent on destroying our society. Two examples are worth noting.

The first is Terminiello v. Chicago, in which the Supreme Court majority struck down a Chicago “breach of peace” ordinance as a violation of the First Amendment. It was a close decision. Arthur Terminiello had delivered an incendiary speech that led to a riot. Jackson dissented at length, and his concluding paragraph has this version of the “suicide pact” argument:

This Court has gone far toward accepting the doctrine that civil liberty means the removal of all restraints from these crowds and that all local attempts to maintain order are impairments of the liberty of the citizen. The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.⁴⁹

In 1963, in a case involving the forfeiture of citizenship by a U.S. citizen who left the country to avoid being drafted, Justice Arthur Goldberg wrote for the majority that “while the Constitution protects against invasions of individual rights, it is not a suicide pact.”⁵⁰

Johnson provides a final example. He began his political career as a New Deal Democrat and, as president, pushed the public’s concern for the poor with his “war on poverty.” As a Southerner who understood the political direction of the majority of the country in the 1960s, he did not have to be dragged kicking and screaming (as Kennedy was in 1963) to support civil rights legislation. However, he also understood anti-Communism.⁵¹ It was that anti-Communism that led him to fully Americanize the war against the peoples of Indochina in 1965.

It is unfortunate that Siegel, who has done a prodigious amount of research for this book, did not see the consistency in Kaufman’s liberal anti-Communism. Instead, the book primarily focuses on the apparent contradiction between Kaufman’s behavior in the 1950s and his subsequent career. If Siegel had pursued this seeming disjuncture by examining or even just referencing the careers of some of the individuals just highlighted, he might have realized that Kaufman’s behavior was consistent in his liberalism and his virulent anti-Communism—and, for a brief moment, he does.⁵² Here, Siegel acknowledges that his subject’s liberalism was consistent with his virulent anti-Communism. Siegel also hints at the consistency between tough robust anti-Communist liberalism and the expansive role of the state in protecting individual rights. He even references Schlesinger, Hook, the Americans for Democratic Action, and Truman’s 1948 campaign. Unfortunately, for the rest of the book, Siegel focuses his attention on the “curious path from Sing Sing in 1953 to progressive champion in 1992.”⁵³ In referring to Kaufman’s life story as a “curious path,” Siegel buries his brief insight about the consistency between strong anti-Communism and progressive liberalism, as exemplified by the careers of the individuals just mentioned.

This is because Siegel, a liberal himself, does not see the contradictions within such a system. Liberal democracy is fine as long as the basis of the system is not threatened. When it is, well, liberals can always fall back on the cliché that the Constitution is not a suicide pact and make sure that the truly “dangerous” people—Communists and other leftists—are dealt with by any means necessary.

Notes

1. ↩ This article combines analysis with a very personal reaction. For details of what I believe happened in my parents’ case, see Michael Meeropol, “‘A Spy Who Turned his Family In’: Revisiting David Greenglass and the Rosenberg Case,” American Communist History 17, no. 2 (2018): 247–60.
2. ↩ The transcript from the Rosenberg trial is available in two forms. The earliest involve eight printed volumes from the first application to the Supreme Court for certiorari. These include the trial record plus the decision of the Court of Appeals affirming the convictions. Copies are available in a number of law school libraries, and it has been the source for my quotes from the record since my brother and I wrote We Are Your Sons (University of Illinois Press, 1986). (This edition is available online with free access.) Page references to the eight-volume version will be referred to as “transcript of record.” In the book under review, the author refers to what he calls “the Rosenberg Transcript” (which he abbreviates RT). The full reference is: United States v. Rosenberg, 109 F. Supp. 108 at C134–245 (SDNY, 1953), and is available at casetext.com/case/united-states-v-rosenberg. In referencing the trial record, I will use the eight-booklet version as well as the reference made by Siegel. The quote from Kaufman is available in the transcript of record, 1614–15. Siegel quotes from the Rosenberg Transcript on pages 111–12 of Judgment and Mercy.
3. ↩ Siegel continues: “I was dumbstruck. Protesting a dead man from the grainy gray-and-white yesteryear of the McCarthy era? I was twenty-five.… I couldn’t believe actual living people still cared—still hated the man enough to find and infiltrate his funeral and hound him one last time, literally into the grave” (Martin J. Siegel, Judgment and Mercy: The Turbulent Life and Times of the Judge Who Condemned the Rosenbergs [Ithaca, New York: Cornell University Press, 2023], 2).
4. ↩ Linda Greenhouse, “Not How He Wanted to be Remembered,” New York Review of Books, June 22, 2023.
5. ↩ For a summary of Kaufman’s activities with detailed footnotes to FBI documents, see Michael Meeropol and Robert Meeropol, We Are Your Sons, 2nd ed. (Boston: Houghton Mifflin, 1975), chapter 14. Note the word “treason”—because the Soviet Union was an ally during the Second World War, my parents could not have been charged with treason. Nevertheless, Justice Hugo Black always believed that they had been tried and sentenced, in effect, for treason without any of the protections of the treason statute in the Constitution. On the day my parents were executed, Black read his dissent from the Supreme Court’s hasty disposal of a stay that had been granted by an individual justice (William O. Douglas) after the Court recessed for the summer. In it, Black wrote: “I may add that I voted to grant certiorari originally in this case. That petition for certiorari challenged the fairness of the trial. It also challenged the right of the Government to try these defendants except under the limited rules prescribed by the Constitution defining the offense of treason” (Rosenberg v. United States, 346 U.S. 273 [1953] [Black, H., dissenting], hugoblacklibrary.org).
6. ↩ Martin J. Siegel, “A Haunted Judge Kept His Promise,” Jewish Book Council (blog), March 13, 2023.
7. ↩ The “deal” involved taking senior status on the Court of Appeals so that Ronald Reagan could appoint a new judge to fill Kaufman’s slot.
8. ↩ When I use the term ruling class, I am following in the tradition set by G. William Domhoff with his 1968 book Who Rules America? The most recent (eighth) edition was published in 2022 and is entitled Who Rules America?: The Corporate Rich, White Nationalist Republicans, and Inclusionary Democrats in the 2020s (New York: Routledge, 2022).
9. ↩ During the Second World War, two open Communists had been elected to the New York City Council. Peter Cacchione served from 1941 to 1947 and Benjamin Davis served from 1943 to 1947. For details, see Liza Featherstone, “Socialism Has a History—and a Future—in New York City,” Jacobin, July 12, 2021.
10. ↩ Transcript of record, 1613–14.
11. ↩ Interestingly, in a letter to his attorney Emanuel Bloch, my father recognized the political context of his case and Kaufman’s role as a member of a “team.” Echoing the Communist Party view that “finance capital” had taken control of the U.S. economy, he wrote, “there are eight large financial units in the American economy which in recent years have assumed a…degree of power over here.… These so-called ‘honorable men’ are very powerful.… They control the political parties and appoint as errand boys such men as [Prosecutor Irving H.] Saypol and Kaufman to create a big lie that we could possibly threaten the peace” (Meeropol, ed., The Rosenberg Letters: A Complete Edition of the Prison Correspondence of Julius and Ethel Rosenberg [New York: Garland, 1994], 480–81).
12. ↩ In 1995, the government declassified information about the hitherto secret Venona Project, through which the U.S. government decrypted Soviet communications from the Second World War era. The material was collected and published in Robert Louis Benson and Michael Warner, eds., Venona: Soviet Espionage and the American Response, 1939–1957 (Washington, DC: National Security Agency, Central Intelligence Agency, 1996). Venona documents that reference either or both of my parents are on pages 275, 301, 327, 335, 341, 365, 381, 385, 387–89, 393, 395–96, and 413.
13. ↩ The transcript of the hearing before the Joint Committee on Atomic Energy on February 8, 1951, is available in the AEC documents, which are located in the FBI reading room in Washington, DC. It is also available in the Rosenberg Prosecution Documents in the Boston University Library’s Howard Gotlieb Special Collections. This set of documents includes over three hundred thousand pages (mostly FBI documents) won by a Freedom of Information Act lawsuit my brother and I filed in 1975. The final judgment was entered in 1986. For details, see Meeropol v. Meese, 790 F. 2nd 942 (DC 1986), open.jurist.org.
14. ↩ One is a reference to a February 7, 1951, entry in the diary of AEC chairman Gordon Dean where he notes that he had conferred with James McInerney, the head of the Criminal Division of the Justice Department. Dean had asked McInerney if there was any indication my father was “breaking.” Dean wrote: “McInerney said there is no indication at this point and he doesn’t think there will be unless we get a death sentence. He [McInerney] talked to the Judge and he is prepared to impose one if the evidence warrants.” The Dean diary entry is in the AEC documents available both in Washington and Boston. The other evidence is from an FBI report from the middle of the trial, in which Justice Department official Raymond Whearty told an FBI agent that he knew that Kaufman would sentence my father to death, “if he doesn’t change his mind” ( H. Belmont to D. M. Ladd, memorandum, March 16, 1951, file no. 894, Julius Rosenberg files, FBI Headquarters, Washington, DC). Note particularly that the date of Dean’s diary entry is one day before the hearing before the Joint Congressional Committee of Atomic Energy. The focus of that hearing was on making sure Greenglass testified to stealing very important information in order to get a death sentence for my parents. Dean knew what his job was going to be at the hearing.
15. ↩ Siegel, Judgment and Mercy, 61.
16. ↩ Siegel, Judgment and Mercy, 101.
17. ↩ Siegel, Judgment and Mercy,104.
18. ↩ Siegel, Judgment and Mercy, 100.
19. ↩ Siegel, Judgment and Mercy, 100.
20. ↩ In affirming the conviction, the Court of Appeals for the Second Circuit wrote: “Doubtless if that [Greenglass] testimony were disregarded, the conviction could not stand” (transcript of record, 1654; also available as United States v. Rosenberg et al., 195 F. 2nd 583 [2nd Cir. 1952], law.justia.com).
21. ↩ During the cross-examination of Ruth Greenglass, attorney Alexander Bloch (the father of chief defense counsel Emanuel Bloch) asked her to re-state what she had originally described in her direct examination earlier in the trial. After she had repeated it virtually verbatim, Alexander Bloch stated, “Are you aware of the fact that the narrative you just gave us is almost identical with the verbiage used on your first giving of the testimony of that particular occurrence?” Saypol objected and Kaufman interjected, “I don’t know exactly what the point is. If the witness had left out something, Mr. Bloch would say that the witness didn’t repeat the story accurately. And the witness repeats it accurately, and apparently that isn’t any good.” Attorney Bloch responded that he was referring to the “verbatim” repetition. Kaufman stated “we don’t know that it is verbatim.” Attorney Bloch said that once the record is written up, we will have it (transcript of record, 728). During summation, the younger Bloch stated that Ruth Greenglass repeated her testimony “word for word” (transcript of record, 1477). During jury deliberation, they asked to have Ruth Greenglass’s testimony read back to them. In discussing what part of her testimony to re-read, to the jury, Saypol said that the jury had not asked for the cross-examination. Kaufman responded, “I am not going to read the cross to them unless they request it” (transcript of record, 1571). Both Blochs argued that if the jury wanted testimony about a set of particular instances, they obviously wanted the cross-examination that pertained to that testimony, but Kaufman would not budge. For details on my mother’s cross-examination, see the online appendix to this article, available on request at [email protected].
22. ↩ First on page 118 and then in endnote 27 on page 370, Siegel presents some of the material described in the text above and note 17 in this article. He then fails to accept the significance of this information.
23. ↩ For details on the Lamphere-Gardner relationship and their specific belief that my mother was not a spy, see Howard Blum, In the Enemy’s House: The Secret Saga of the FBI Agent and the Code Breaker Who Caught the Russian Spies (New York: HarperCollins, 2018).
24. ↩ Siegel, Judgment and Mercy, 120.
25. ↩ This was the opinion of Assistant Attorney General McInerney, even though he told the FBI that there was “insufficient evidence” to indict my mother. McInerney is quoted in A. H. Belmont to D. M. Ladd, June 17, 1950, file no. 894, Julius Rosenberg files, FBI Headquarters. Later of course, in February 1951, both Greenglasses suddenly “remembered” that my mother had typed up spy materials. On this, see telegram, New York to Washington, February 26, 1951, file no. 813, Julius Rosenberg files, FBI Headquarters, in which David Greenglass contradicts his earlier testimony and agrees with his wife’s “memory.” Years later, David Greenglass admitted on the television show 60 Minutes II (broadcast December 5, 2001) that he had committed perjury at the trial when he testified that my mother had done the typing.
26. ↩ The Espionage Act did not provide for a prison sentence longer than thirty years.
27. ↩ Bennett said he was speaking on behalf of Attorney General Herbert Brownell Jr. The message was clearly “talk or die.” For details, see Meeropol, ed., The Rosenberg Letters, 673–83.
28. ↩ Siegel, Judgment and Mercy, 138.
29. ↩ The exact quote was from an early interview of Ruth Greenglass with the Rogge law firm right after David had been arrested: “She [Ruth] had known him since she was ten years old. She said that he would say things were so even if they were not. He talked of suicide as if he were a character in the movies, but she didn’t think he would do it” (quoted in Emily Arnow Alman and David Alman, Exoneration: The Rosenberg-Sobell Case in the 21st Century [Seattle: Green Elms, 2010], 243).
30. ↩ See C. E. Hennrich to A. H. Belmont, memorandum, May 13, 1953, file no. 1641, Julius Rosenberg files, FBI Headquarters. For my summarization, see Meeropol and Meeropol, We Are Your Sons, 375.
31. ↩ The third charge made in the motion was that David Greenglass had committed perjury at the trial when he denied he had stolen anything from Los Alamos. His brother Bernard submitted an affidavit testifying that David had said he had stolen a sample of uranium from Los Alamos, thereby proving he had lied at the trial.
32. ↩ Siegel, Judgment and Mercy, 143; A. H. Belmont to D. M. Ladd, memorandum, June 17, 1953, file no. 1823, Julius Rosenberg files, FBI Headquarters. For a detailed discussion of the meeting and the various sources describing it, see Brad Snyder, “Taking Great Cases: Lessons from the Rosenberg Case,” University of Wisconsin Legal Studies Research Paper No. 1099, Vanderbilt Law Review 63, no. 4 (May 2010): 884–956, ssrn.com. For a spirited defense of the point raised by Farmer and Marshall, see Joseph Sharlitt, Fatal Error: The Miscarriage of Justice that Sealed the Rosenbergs’ Fate (New York: Charles Scribner’s Sons, 1989). For Sharlitt’s analysis of the meeting, see 66–70 and 75–77.
33. ↩ Michael Parrish, “Cold War Justice, The Supreme Court and the Rosenbergs,” American Historical Review 82, no. 4 (October 1977): 835.
34. ↩ According to Snyder, “Douglas knew that the lifting of his stay was a fait accompli. Vinson’s comment about the White House believing that the Rosenbergs ‘had to fry’ surely tipped him off. Douglas also suspected that Vinson had lined up five votes to vacate the stay ‘in advance of argument and in advance of any exposure or explication of the point!!’ This was no small feat. The Court had never voted to vacate the stay of a single Justice. It had always waited for lower courts to hear argument and rule on the merits of the underlying legal issue” (Brad Snyder, Democratic Justice: Felix Frankfurter, the Supreme Court, and the Making of the Liberal Establishment [New York: W. W. Norton, 2022], 924–25). He then quotes Frankfurter.
35. ↩ Here is how Roberts described the interview with Rogers in a 2006 podcast: “Shortly before he died, I interviewed William Rogers.… I guess, I said to him, the government got what it wanted: the Rosenbergs were indicted, convicted and executed. No, he replied, the goal wasn’t to kill the couple. The strategy was to leverage the death sentence imposed on Ethel to wring a full confession from Julius—in hopes that Ethel’s motherly instincts would trump unconditional loyalty to a noble but discredited cause. What went wrong? Rogers’s explanation still haunts me. ‘She called our bluff,’ he said” (Sam Roberts, “Podcast: Spies and Secrecy,” transcript and recording, New York Times, June 26, 2008).
36. ↩ I have collected other deficiencies in Siegel’s discussion of Kaufman’s activities in relation to my parents’ case in an appendix available from the author at [email protected].
37. ↩ Beginning in the tenth chapter, Siegel details the role of Kaufman as a liberal stalwart. Right up through the end of chapter 15, the reader is treated to a detailed discussion of Kaufman’s very progressive opinions—the last of which is his decision that the Alien Torts Act of 1789 could be used by foreign nationals to sue their torturers. Siegel calls it “Kaufman’s greatest liberal contribution” (Siegel, Judgment and Mercy, 298).
38. ↩ For details of the role of Attorney Morris Ernst, see Ronald Radosh and Joyce Milton, The Rosenberg File, 2nd ed. (New Haven: Yale University Press, 1997), 357–59. Ernst stated that he had conducted a “psychological study of the Rosenbergs” and had concluded that “Julius is the slave and his wife, Ethel, the master” (Radosh and Milton, The Rosenberg File, 358, quoting L. B. Nichols to C. A. Tolson, memorandum, January 9, 1953, Julius Rosenberg files, FBI Headquarters). Ernst had never met my parents. In June of the same year, as Eisenhower was preparing to deny clemency to my parents for a second time, he repeated Ernst’s ridiculous canard in a letter to his son: “in this instance it is the woman who is the strong and recalcitrant character, the man who is the weak one. She has obviously been the leader in everything they did in the spy ring” (letter, Dwight D. Eisenhower to John Eisenhower, quoted in Stephen Ambrose and Richard Isserman, Ike’s Spies [New York: Doubleday, 1981], 182–83).
39. ↩ On the Wallace campaign, see Curtis MacDougal, Gideon’s Army (New York: Marzani and Munsell, 1965).
40. ↩ Title II of the Internal Security Act reads in part: “the President, acting through the Attorney General, is hereby authorized to apprehend and by order detain, pursuant to the provisions of this title, each person as to whom there is reasonable ground to believe that such person probably will engage in, or probably will conspire with others to engage in, acts of espionage or of sabotage” (Internal Security Act of 1950, Pub. L. No. 81–831, 64 Stat. 987 [1950]).
41. ↩ Humphrey’s political career in Minnesota began in the 1940s. He played a major role in the 1944 merger of the (rather tiny) Democratic Party of Minnesota with the vigorously radical Farmer-Labor Party. Throughout that decade, he played a very prominent role in defeating the Communists, who had followed a popular front strategy of supporting Roosevelt and played prominent roles in the pre-merger Farmer-Labor Party, as well as the merged Democratic Farmer Labor Party. In 1947, he helped found the explicitly anti-Communist Americans for Democratic Action. The anti-Communist activities of Hubert Humphrey and other well-known liberal Minnesotans, including future senator and vice president Walter Mondale (and future senator Eugene McCarthy) is detailed in John Earl Haynes, Dubious Alliance: The Making of Minnesota’s DFL Party (Minneapolis: University of Minnesota Press, 1984). See especially the section headlined: “Humphrey and the Revival of Anti-Communist Liberalism,” starting on page 136, where the role of Humphrey as an anti-Communist warrior who upheld the liberal values of support for labor unions and civil rights for Black U.S. citizens is spelled out.
42. ↩ The most detailed account remains The Pentagon Papers (Senator Gravel edition), but also see Ralph Stavins, Richard Barnet, and Marcus Raskin, Washington Plans an Aggressive War: A Documented Account of the United States Adventure in Indochina (New York: Random House, 1971).
43. ↩ Sabotage and terrorist activities against the Cuban regime of Fidel Castro were authorized even before Kennedy took office, though he finalized and approved the Bay of Pigs invasion and the continuation of Operation Mongoose after that failure. The National Security Archive has collected a treasure trove of documents entitled “CIA Covert Operations III: From Kennedy to Nixon, 1961–1974,” available at proquest.libguides.com/dnsa.
44. ↩ Hoover’s FBI sought to discredit King. Attorney General Robert F. Kennedy was persuaded by Hoover that there was a danger that King had communists advising him. Kennedy thus authorized wiretaps of King. On this issue, see Victor S. Navasky, Kennedy Justice (New York: Atheneum, 1971). The FBI engaged in COINTELPRO activities in an effort, in Hoover’s words, to prevent the emergence of a “black Messiah.” This involved heavy surveillance of Malcolm X. At the local level, police worked hard to disrupt the activities of the Black Panther Party—up to and including assassination, such as with the 1969 murders of Fred Hampton and Mark Clark in Chicago. (On that, see Jeffrey Haas, The Assassination of Fred Hampton: How the FBI and the Chicago Police Murdered a Black Panther [New York: Lawrence Hill Books, 2011]). There are some who would argue that liberals were incapable of reining in Hoover, but in Navasky’s study of Kennedy, it is clear that his support for civil rights was circumscribed by his anti-Communist inclinations. Let us recall that Kennedy began his public career as a staffer on Senator Joseph McCarthy’s Senate Investigations Committee.
45. ↩ In his book The Vital Center, Schlesinger spends most of the book attacking communism both in the Soviet Union and in the United States. Here is one of his exemplary assertions: “The health of the democratic left requires the unconditional rejection of totalitarianism. The line must be held fast for all time” (Arthur Schlesinger Jr., The Vital Center [Boston: Houghton Mifflin, 1949], 149). This sentence appears after detailed analysis of the totalitarian nature of the Soviet Union and the undemocratic, secretive, and dishonest nature of U.S. Communism. Because The Vital Center was published in 1949, it is also filled with vitriolic denunciation of Wallace’s 1948 campaign as being entirely controlled by Communists. See Schlesinger, The Vital Center, 115–20 for examples.
46. ↩ Siegel, Judgment and Mercy, 113–14. Siegel here references a Schlesinger column in the New York Post (“History of the Week”) from January 1953: “He [Schlesinger] labeled the Rosenbergs ‘professional spies, whose work may yet result in the murder of millions of Americans,’ and quoted a passage from Thomas Jefferson arguing that ‘traitors’ should ‘get what they deserved.’”
47. ↩ Sidney Hook, “Heresy, Yes—But Conspiracy, No,” July 9, 1950, New York Times Magazine. (The article was also republished by Dissent in 2009.) At the time, the Korean War had just begun.
48. ↩ See Snyder, Democratic Justice. On Frankfurter’s willingness to balance the “competing interests” of “free speech in a democratic society” and “national security,” see the discussion of Frankfurter’s concurring opinion upholding the conviction of Communist Party leaders under the Smith Act, particularly pages 539–43.
49. ↩ Terminiello v. Chicago, 337 U.S. 1 (1949).
50. ↩ Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). In this case, the Supreme Court majority found for the appellant and declared the laws under which citizenship was forfeited unconstitutional. Yet notice how important it was for Goldberg to remind everyone that when issues are really serious—as when national security is really threatened—the “suicide pact” argument comes to the fore. One could imagine the Supreme Court majority who gave Douglas’s stay of execution in my parents’ case the bum rush consoling themselves with this supposedly self-evident aphorism.
51. ↩ In a very telling set of chapters in Robert Caro, Master of the Senate (New York: Alfred A. Knopf, 2002), the third volume of Caro’s magnum opus on the life of Lyndon B. Johnson, the author shows how Johnson curried favor with the “old boys” in the Senate by carrying water for the Texas oil industry and then destroyed the career of Leland Olds, a liberal public servant who was up for reappointment to the Federal Power Commission. Olds had been a tough regulator of prices in the electric power industry and had raised the ire of the Texas oil and gas interests. When he came up for reappointment, Johnson orchestrated a smear campaign to suggest that Olds might be a Communist. Olds lost reappointment and his career in government was over, but Johnson earned the favor of the powers that be in Washington. See Caro, Master of the Senate, 223–303. Militant anticommunism once again was perfectly consistent with a career that (once Johnson achieved the presidency) made tremendous gains for what liberals wanted to do for U.S. domestic policy.
52. ↩ Siegel, Judgment and Mercy, 72–73.
53. ↩ Siegel, Judgment and Mercy, 4.