Judgment and Mercy

Of all the questions we consider at this Yizkor moment, towards the top, if not at the very top, of the list is the question of what will be the first line of our obituaries. If nothing else, Yizkor alerts us to the shared fate that awaits us all. How we recall our loved ones and how those who follow will one day recall us – the first lines, if you will, of our obituaries. 

Today, I want to share with you a story, a snapshot of American history, of Jewish American history, and Park Avenue Synagogue history – an extraordinary story which, by a certain telling, has this very question at its center. 

This year, as some of you may know, marks seventy years since the 1953 executions of Julius and Ethel Rosenberg, two spies found guilty of selling atomic secrets to the Soviets. The judge who sentenced the Rosenbergs was Irving Kaufman. Kaufman was not only a member of Park Avenue Synagogue, but in 1973, the recipient of our community’s highest Simhat Torah honor, Hatan B’reishit. Judge Kaufman’s funeral took place in this sanctuary in 1992.

If you saw this past summer’s “Oppenheimer,” then you have a taste of just how charged the chapter of 1950s postwar American history was, with fear of the atomic threat, McCarthyism, Soviets, and spies, both suspected and real. For American Jews, already negotiating their insider/outsider status, it was all the more fraught as our predecessors sought entry into the social, economic, and judicial ranks of American society. Kaufman was part of this story, a brilliant and ambitious lawyer, who went from the Lower East Side to law school to legal distinction to the attorney general office, to judge of the Southern District of New York. When the Rosenberg trial arrived, most judges tried to keep their distance. Whatever the outcome would be, it would be controversial, all the more so for a Jewish judge adjudicating a case involving spies who were Jewish. But Kaufman was ambitious and saw opportunity for career advancement – one day, perhaps, a seat on the highest court of the land.

The case did indeed catch the world’s attention. Kaufman received pressure from both sides. He would later recall how he came to his synagogue – our synagogue – to pray for wisdom as he prepared to issue the verdict. Not only did the jury find the Rosenbergs guilty, but in his sentencing, Kaufman let loose a torrent of condemnation: The crime of the Rosenbergs worse than murder, their actions perhaps even setting in motion the Korean War. As Martin Siegel suggests in his fabulous new book on Kaufman, Judgment and Mercy, Kaufman held special disdain for the Rosenbergs, who had once been just like him, poor Jews from the Lower East Side, but then spurned everything both he and America stood for. 

The fallout was sharp; appeals for clemency came in from everyone from Picasso to the pope, but Kaufman’s sentence held. Many in the Jewish community felt betrayed, one rabbi writing that Kaufman should have spent less time praying and more time studying Talmud, where he would have learned about Judaism’s arm’s length relationship with capital punishment. Most damning were the accusations of judicial misconduct. Throughout the trial, Kaufman engaged in ex parte discussions with a member of the prosecution team, Roy Cohn – the Roy Cohn famous for the McCarthy hearings, his later association with the Trump family, and, slightly less well-known, having had his bar mitzvah in this very sanctuary. The Cohns and the Kaufmans were family friends, members of PAS, interconnected by way of the high society shtetl of the Upper East Side.

Kaufman saw the writing on the wall, or more precisely, the typeset of the newspaper. In the words of Linda Greenhouse, Kaufman “dedicated his life to trying to make sure that the first paragraph of his New York Times obituary would not be ‘Judge Irving R. Kaufman, who sentenced the Rosenbergs to death.’” Kaufman cultivated a close relationship with Arthur “Punch” Sulzberger of the New York Times. In Kaufman, Punch had a strident first amendment ally and in Punch, Kaufman had a vehicle to rehabilitate his name. In the decades to come, Kaufman’s rulings would become some of the most strident defenses of free speech on record. Whether he ruled in favor of liberal causes out of conviction or as an effort to rehabilitate his name, nobody will ever fully know. Nevertheless, a seat on the Supreme Court forever eluded him. Hearing that Kaufman had prayed for wisdom in synagogue, Frankfurter, who then held the “Jewish seat” on the court, wrote, “I despise a judge who feels God told him to impose a death sentence . . . . I am mean enough to try to stay here [on the court] long enough so that [Kaufman] will be too old to succeed me.” Forty years after the Rosenberg case, at Kaufman’s funeral, there were protesters outside our synagogue. As Rabbi Nadich eulogized him, someone stood up in this sanctuary and bellowed “He murdered the Rosenbergs! Let him rot in hell.” As for his Times obituary - I will let you decide. It reads, “Judge Irving Kaufman, of Rosenberg Spy Trial and Free Press Rulings, Dies at 81.”

The Kaufman story is an extraordinary one. The lessons it holds could set sail to a book of sermons. But at this Yizkor moment, I find myself returning to the question of how a life is to be lived and how a life is to be remembered. Martin Siegel, the author of the book on Kaufman, no doubt chose the title Judgment and Mercy because Kaufman was a judge. At this time of Yizkor, I think “judgment and mercy” is the lens by which we can frame the project of memory. 

This sanctuary, first and foremost, is a house of worship, but at this moment of Yizkor, for some, it also functions as a courtroom of sorts. The primary image of the holiday season is the book of life. Over the holidays, God opens the book of life inscribed with our deeds. Likewise, at this moment of Yizkor, each one of us opens up the books of life of the loved ones we carry in our hearts every day, but especially today. 

What is the sum total of a person’s deeds? No life is perfect. We all have faults, frailties, and failures – that is what Yom Kippur is all about. In the year ahead, we the living are granted the opportunity to rehabilitate our names and mend our relationships. But when we remember someone, the dynamic is different. It is not the dead, but we the living who decide; we choose what we remember of our loved ones. What we forget and what we forgive. Where shall we direct our focus? Din or rahamim? Judgment or mercy? 

Consider Moses, the greatest leader our people has ever known – from facing down Pharaoh to leading the Israelites through the wilderness right up to the steppes of the Jordan. And yet, for one misstep – striking the rock – he was refused entry to the Promised Land. The loved ones we recall today were all too human. Shall we perseverate on any single misstep, or shall we reflect on the totality of their lives with generosity of spirit, focusing on their kindnesses and understanding their failures, whatever they were, in the context of their wider humanity and deeper struggles? What path shall we choose? Din or rahamim, judgment or mercy?

It is not a straightforward or easy question. In this world there are hurts that cannot be forgiven. In this world there are failings that cannot be excused. Perhaps a good place to start, a human place to start, is the Golden Rule – that we should do unto others as we ourselves would want done to us. Part of the power of Yizkor is the realization that someday, hopefully, someone will be reciting Yizkor for us. Don’t we all want, as I know I do, all the people who will remember us to do so with generosity of spirit? As the rabbis teach, ma·avir al midotav – ma’avirin lo, the person who is willing to pass over the shortcomings of others will have their own shortcomings passed over. (Babylonian Talmud, Rosh Hashanah 17a) The calculus is not exact, but it is as good a place to start as any. A call to remember our loved ones, in their faults and foibles, as we ourselves would want to be remembered.  

Good people can agree to disagree regarding Kaufman and his sentencing of the Rosenbergs. From what I can tell, while Kaufman stood by his judgment, it weighed heavily on him because he concluded that his decision in that one case would determine how he would be remembered. And so, for better, and perhaps sometimes for worse, a self-fulfilling prophecy emerged, with Kaufman spending his days doing everything within his power to tip the scales of his future judgment towards mercy. On a certain level Kaufman’s tale reads like a Shakespearean tragedy in its pathos – so focused in life on what he could not control in death. Nobody save Moses gets to recount their death; none of us will write our own obituaries. What we can do, and frankly what we should do, is spend our days filling our ledgers with good deeds that will be remembered. Not just because we have all stumbled along the way and we need to do penance, but because in and of itself, it is the right thing to do. 

If you have the inclination, then by all means write your apologia pro vita sua, the defense of your life. Get your side of the story out into the public sphere or put up a statue in your own honor. If you have the means to do so, then fill this world with acts of tzedakah, acts of righteous giving, supporting or fighting for those causes and institutions you believe in. It won’t right your wrongs, but it will mean that in the years ahead when people speak or see your name, they may remember your values, not your stumbles.

But most of all, and I believe this is what Yizkor boils down to, we must spend the hours, the days, and the years that we have in this world thinking about our lives, not our afterlives, engaging and impacting the lives of others. I have been doing this rabbi thing for some time now, and while I won’t say never, I am hard-pressed to think of a single child, grandchild, spouse, or sibling who eulogized their loved one by describing the deals they brokered, the books they published, or the money they made. Our loved ones will remember the love we shared, the advice we gave, the humanity we demonstrated, and the values we lived, when we lived them and when we asked forgiveness for having fallen short of them.

The tragedy of Kaufman’s life was neither his judgment of the Rosenbergs, nor, for that matter, the judgment of how history remembers him. The tragedy of Kaufman was his singular focus on his obituary when it should have been on the living, on how those who knew and loved him in all his flawed humanity would remember him. Historians will write what historians will write. What should we care about? Where should we direct our energies and efforts in our limited lives of uncertain duration? Toward those people who matter most – the people who, please God will one day be sitting in Yizkor remembering us.

Judgment and Mercy – a fitting title for this moment of Yizkor. The books of life that were our loved one’s lives now sit open before us. One day the books of our lives will lie open before those who will follow. May we judge our loved ones with mercy, may we be judged with mercy, and may the merit of our loving deeds cause us to be inscribed in the book of life in this year and for years to come.

Siegel, Martin J. Judgment and Mercy: The Turbulent Life and Times of the Judge Who Condemned the Rosenbergs. Ithaca, NY: Three Hills/Cornell University Press, 2023.