Of the many persons frequently associated with the Pentagon Papers case decided by the U.S. Supreme Court 40 years ago, Robert McNamara, Daniel Ellsberg, Richard Nixon, John Mitchell, Katharine Graham, Ben Bradlee, Arthur Sulzberger, and Abe Rosenthal are among the most prominent.1 Each played an important part in this historic episode. At the same time, U.S. District Judge Murray I. Gurfein was also a dominant figure in this landmark case, but his role is all but forgotten, and shouldn’t be.
In that frenetic litigation, Judge Gurfein soundly balanced a respect for the executive branch’s responsibilities in national security cases with his responsibility to uphold the rule of law, a balance that was critical to the ultimate legal victory by The New York Times to publish the documents. And although Judge Gurfein was surely not the only judge in the litigation to strike such a balance, he was the first. More importantly, the balance he struck remains highly relevant today because many federal judges excessively defer to the executive branch in such cases, thus undercutting the rule of law and checks and balances essential in the governmental scheme.
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