Judge Kaufman, the Times & the ACLU

To the Editors:

In her review of Martin J. Siegel’s Judgment and Mercy [NYR, June 22], an excellent biography of Judge Irving Kaufman, Linda Greenhouse writes, “Kaufman’s special relationship with The New York Times…bears directly on the question of his post-Rosenbergs transformation.” He continually sought “an establishment stamp of approval,” so that his obituary and legacy would not emphasize that he was the judge who gave the Rosenbergs the death sentence.

Judge Kaufman became a “reliable voice in support of the values of the First Amendment.” He also became what one reader called a “sacred cow” whom the paper bent over backward to not offend; as a letter Greenhouse quotes from publisher Arthur Ochs Sulzberger acknowledged, Kaufman was “a senior judge of the Court of Appeals, and is active in a great many First Amendment decisions that are of particular interest to us and the readers of the New York Times.”

I was involved in an incident that reveals the lengths to which the paper went to not offend Judge Kaufman. In its June 23, 1979 issue, The New Republic published a cover story that Sol Stern and I wrote titled “The Hidden Rosenberg Case,” in which we presented the result of our research for the first time, concluding that it served to “badly undermine the argument of [the Rosenbergs’] total innocence.”

It was the first statement of this argument, which I then turned into a book with Joyce Milton, The Rosenberg File (1983). It was a debate that was carried on in these very pages, in extensive letters over many issues responding to our review of Invitation to an Inquest by Walter and Miriam Schneir [NYR, July 21, 1983], which proclaimed the couple’s innocence.

But it was unknown until the present letter that our 1979 article in The New Republic was originally commissioned, accepted, and readied for print in The New York Times Magazine, which was edited at the time by the journalist Ed Klein. The paper paid a hefty fee for the article, and also paid for all our travel and expenses to use the FBI archives on the Rosenbergs in Washington, D.C. The files had been given to Michael and Robert Meeropol, the Rosenbergs’ sons, as a result of their FOIA suit asking to release them, and were held in their lawyer Marshall Perlin’s legal offices. Stern and I began to use them there, but once Perlin saw the direction we were going in, he kicked us out and said we could no longer have access to them. We then had to travel to the small FBI reading room at FBI headquarters to continue our research.

The article passed review and editing at the Times, the typesetting ready to roll. Suddenly, a week before publication, Klein called Stern and me into his office. He shocked us by saying that the magazine would not run our article because executive editor A.M. Rosenthal had read it and told Klein he was going to spike it. His reason, he told Klein, was that the paper could not afford to get on the wrong side of Judge Kaufman, on whom they relied for decisions upholding press freedom that could harm the paper and who might decide against them in future cases.

Once The Rosenberg File was published, and the discussion of the case could not be blamed on the paper, its editors forcefully backed the book. The New York Times Book Review ran a front-page review of it by Alan Dershowitz and a back-page article in the same issue by Walter Goodman; a major favorable review by Michiko Kakutani appeared in the daily paper as well. Later, it was picked by the book review’s editors as one of the ten best books of 1983. That made up, in my eyes, for Rosenthal’s decision not to run the article that was published in The New Republic.

Ronald Radosh
Silver Spring, Maryland

To the Editors:

I was glad to read Linda Greenhouse’s fine review of Judgment and Mercy, Martin J. Siegel’s biography of Judge Irving Kaufman. Greenhouse makes it clear that Kaufman was obsessed by his determination to salvage his reputation from the opprobrium it suffered as a result of the death sentences he imposed on Julius and Ethel Rosenberg.

Two incidents in which I was involved exemplified that obsession. From 1973 to 1976, while I was executive director of the American Civil Liberties Union, I also served as a commissioner of the Juvenile Justice Standards Project, a joint project of the American Bar Association and the Institute of Judicial Administration. We drew up and published model laws for states to adopt covering a range of issues affecting children and young people. Judge Kaufman was our chair. We met about three times a year at whatever resort Kaufman favored that season.

One of our meetings was in Tucson, Arizona. I arrived late from New York at the first day’s lunch break. To get to my room, I had to pass the swimming pool where Kaufman was sunning himself. When Kaufman saw me, he got up and thrust a letter at me, saying, “Here, this will interest you.” I put down my suitcase and read the letter. It was from a lawyer in Kansas City named Arthur Mag. I did not recognize the name, but Kaufman identified him as Harry Truman’s personal lawyer. It said that President Truman had a high regard for Kaufman’s conduct of the Rosenberg trial. More than two decades had passed since that trial.

Some time after this, the ACLU obtained copies of documents released under the Freedom of Information Act showing that Kaufman had met with prosecutors in the Rosenberg case, without the presence of defense counsel, to discuss the death penalty. This was highly improper, a gross violation of judicial ethics. I got a phone call from Simon Rifkind, a named partner in a prominent New York law firm and a former federal judge. Rifkind told me he was Kaufman’s lawyer. Evidently, his client had asked him to dissuade the ACLU from making the documents public. I told Rifkind I was preparing a statement to accompany publication of the documents. Rifkind argued with me. In the process, he informed me that he was on the board of a foundation that contributed to the ACLU, implicitly threatening that it would affect our funding. I asked Rifkind if he would like to see our conversation reported in the press. That ended the conversation. I then issued the call for the congressional investigation that is referred to in Greenhouse’s article.

I don’t know if Judge Rifkind discussed with Judge Kaufman his threat that there would be a cost to the ACLU if we went public. But it is hard to imagine Rifkind would have done so without informing his client.

Aryeh Neier
President Emeritus
Open Society Foundations New York City