Irving R. Kaufman; Judge in Rosenbergs’ Spy Trial

Judge Irving R. Kaufman, who hoped that he would be remembered for his civil rights rulings and not as the jurist who sent Ethel and Julius Rosenberg to the electric chair, is dead.

Kaufman was 81 and died of pancreatic cancer Saturday at Mt. Sinai Medical Center in New York City, a hospital spokesman said over the weekend.

At his death he was serving on the U.S. 2nd Circuit Court of Appeals, to which he was appointed by President John F. Kennedy in 1961.

In 1949 Harry S. Truman appointed Kaufman a U.S. District Court judge in New York City, and he presided over the Rosenbergs’ 1951 trial in that capacity. They were convicted of passing atomic bomb secrets to the Soviet Union and executed two years later. The couple remain the only American civilians ever put to death for espionage.

Kaufman had often said he wanted to be remembered not for the Rosenberg case, but for a 1961 order that was the first to desegregate a public school in the North (a predominantly black elementary school in New Rochelle, N.Y.), for streamlining court procedures and for expanding the application of the 1st Amendment.

He was a vociferous champion of freedom of the press and in 1971 was the dissenting voice on the three-judge panel that ruled the New York Times could not publish the Pentagon Papers. The U.S. Supreme Court later agreed with him and ruled in the newspaper’s favor.

His handling of the Rosenberg case may have kept him from the U.S. Supreme Court. Kaufman said that before imposing sentence, he went to a synagogue to pray for guidance, an act that infuriated Justice Felix Frankfurter.

“I despise a judge who feels God told him to impose a death sentence,” Frankfurter wrote. “I am mean enough to try to stay here long enough so that K will be too old to succeed me.”

The controversy over the Rosenberg case--which was the subject of worldwide protests--was rekindled in the 1970s when it became known that Kaufman had held private discussions about the Rosenbergs with the prosecution and that he repeatedly called on the FBI to expedite the executions.

Discussions between a judge and one side of a case are usually considered improper, but an American Bar Assn. panel in 1977 exonerated Kaufman.

More than two decades after the celebrated trial, Kaufman complained that he continued to be harassed for having imposed the sentences, which came at the height of the Cold War.

“I’m sure the decision plagued him to his last days,” Prof. Yale Kamisar of the University of Michigan Law School told the New York Times.

Adding that Kaufman was “someone whose desire for recognition was not easily fulfilled,” Kamisar said that “he continued to write on public issues for a very long time and he certainly worked hard on developing an image of a thoughtful, liberal, sensitive, concerned person on public issues.”

In his rulings involving press freedoms, Kaufman in 1977 said that a newspaper does not necessarily commit libel when it publishes accusatory statements from a public organization even if the statements are false.

That same year he also found that someone suing for libel may not question the “state of mind” of a journalist. That ruling was overturned by the U.S. Supreme Court.

And in 1983 he ruled that a reporter was constitutionally protected against libel for reporting in good faith on government proceedings.

Also on 1st Amendment grounds, he ruled in 1982 that the Communist Party of the United States did not have to disclose the names of contributors to its presidential campaigns.

Kaufman was responsible for one of the most widely cited decisions in the antitrust field.

He ruled in 1979 that Eastman Kodak was entitled to protect its dominance in the market by using normal competitive methods and that marketing that resulted in lower prices and better products was preferable, even if competitors suffered.

Kaufman also handled many criminal cases, among them the trial of 20 men who had attended the underworld conference in 1957 in Apalachin, N.Y.

Kaufman was chairman of the President’s Commission on Organized Crime during the Reagan Administration.

In 1987, President Reagan awarded him the Presidential Medal of Freedom, the nation’s highest civilian honor.

Survivors include his wife, Helen, a son and four grandchildren.