Judge Harry Friendly might be most respected judge of his generation to miss high court
He has been directly cited in more than 125 Supreme Court opinions
New biography calls him the greatest judge of his era
"His goal was to make the system work," author says
For the lucky few who sit on the U.S. Supreme Court come special perks: among them, a national stage to either enhance or create a professional, judicial legacy. A justice’s rulings, views on the law, even personal traits are preserved for history, faithfully followed by judges, lawyers, scholars and laymen alike.
But most jurists toil in obscurity, little appreciated for their intellectual endeavors preserving the rule of law. Henry Friendly (1903-86) was one such man, perhaps the most respected judge of his generation never to have sat on the high court.
His more than quarter-century on the U.S. Court of Appeals for the Second Circuit in New York (1959-86) directly affected at least two generations of judges, lawyers and lawmakers, with an astonishing scope of jurisprudence: He was a nationally recognized expert on securities law, federal jurisdiction and statutory interpretation. Friendly has been directly cited in more than 125 Supreme Court opinions, including cases involving personal privacy, police searches and trademark law.
The judge’s talented law clerks included current Chief Justice John Roberts. And although he was named to the bench by a Republican president, those clerks later went on to serve for a variety of Supreme Court justices, from conservatives William Rehnquist and Warren Burger to liberals William Brennan and Thurgood Marshall. Such was the respect his high court colleagues had of Friendly’s abilities.
Burger, in fact, once said he could not identify “any judicial colleague more highly qualified to have come to the Supreme Court of the United States than Henry Friendly.” But he never was nominated to that bench.
Friendly never lobbied for the job as a judge, but his appointment was endorsed on pure merit by several prominent judges and lawyers. His highly influential opinions are still studied today, classics of legal literature, models of crisp, readable, pragmatic prose. His books and articles on social policy and constitutional history cemented his reputation.
Longtime Washington lawyer and scholar David Dorsen has written a new biography: “Henry Friendly: Greatest Judge of His Era.” Dorsen spoke to CNN about his six-year long project.
CNN: Why don’t we know more about Judge Henry Friendly?
Dorsen: He was involved in no controversies, was quietly married 56 years. Nothing remarkable about him except his remarkable mind. He was not a colorful man – he was a brilliant man – but he was not outspoken and did not call attention to himself. He was not on the Supreme Court.
CNN: Yet he served a vital role in the overall administration of justice.
Dorsen: Yes, the intermediary judicial system is incredibly important. They’re really the glue that holds the whole system together. The district (trial) judges are working under terrible pressure, with limited opportunity to do research and things like that. On the other end of the spectrum, the Supreme Court takes just 80 cases a year and can’t possibly supervise the entire court system. It’s up to the Courts of Appeal judges to state the law, supervise the courts and perform that very, very important task, which nobody realizes.
CNN: What did the Supreme Court think of Friendly?
Dorsen: He was cited by every justice who sat five or more years. Justice (Sandra Day) O’Connor told me when there was no Supreme Court case on point, she instructed her (law) clerks to find an opinion by Judge Friendly. Everyone since Justice (William) Douglas cited him by name and opinion,and his record in that regard is second only to Judge Learned Hand’s (1872-1961, a New York-based federal judge and judicial philosopher).
CNN: Did he hold a particular judicial philosophy?
Dorsen: Not in the sense that judges today have strong ideologies. He was a “passionate moderate” in a way; he was a Republican and a conservative in most respects but nevertheless had an important, strong streak of fairness. So that in his criminal opinions, for example, in certain areas of the law, he was what could be called a liberal. He was not ideological; his goal was to make the system work, to make it more and more predictable, to make it more rational. And his brilliant mind and creativity succeeded in that in so many areas, I couldn’t begin to name them.
CNN: Could such an approach be welcomed in today’s politically charged confirmation process for federal judges?
Dorsen: There are very, very few Judge Friendlys, both because of his moderate positions and also because of his talent. What Friendly could contribute in addition to being flexible and fluid and great intellectual curiosity was 30 years in private practice in a major corporation, involving mostly as counsel at Pan American World Airways. One reason a person like that would have a terrible time getting appointed today is that his views would not be well-known, so that when someone would say, “Should we appoint him?” someone else would say, “No, there’s somebody else more reliable.” They don’t want to squander a seat on the Court of Appeals to somebody who’s just brilliant but not reliably brilliant.
CNN: Talk about Judge Friendly’s intellectual curiosity.
Dorsen: He was able to understand the law as a whole so that if you loosen something in one area and give people more freedom in one area, sometimes you have to restrict it in another area to keep the law working. Most times, when you read a judge’s opinions, it’s hard to know whether it’s from the law clerk, the briefs or the judge himself. But Friendly wrote virtually all his own opinions, and moreover he wrote them in longhand and wrote them quickly. Virtually every opinion was written in one day.
CNN: Was there anything in his background that predicted professional success?
Dorsen: His background is fairly ordinary; he came from a German-Jewish family, grew up in Elmira, New York, went to a public school there, went to Harvard Law School and had the highest GPA of any student in the 20th century. I don’t know where all that brilliance comes from. His mother was very bright but not educated; his father was also very bright in different respects. But I don’t think anybody could have predicted what he became; it was just a remarkable set of circumstances: his diligence, his dedication to his work that made him what he was.
CNN: The cover photo of the book shows a somewhat stern, strong-willed presence.
Dorsen: He was not a jolly fellow. He was not a talkative fellow. He was not a warm person. Many of his law clerks did not do as well as they could have because they could not accept the atmosphere. One clerk told me the overriding atmosphere was one of intimidation.
CNN: Chief Justice John Roberts clerked for Friendly in 1979-80, saying he learned how the judge approached his role as “umpire” of sorts in tough judicial disputes.
Dorsen: He obviously did very well, because Judge Friendly rated him highly among his law clerks. In my conversations with Roberts for this book, he joked a lot about his clerkship, and it was never clear whether he was intimidated or not. My guess is, probably not, because the better clerks learned you had to stand up to Friendly; he wanted you to challenge him. The least successful clerks were the ones who were just too intimidated to argue with him.
CNN: The judge’s last days were not happy ones, and he committed suicide at age 82.
Dorsen: He knew what he wanted all of his life, and he didn’t want to be a burden on people; he didn’t want to be dependent on people. He was more interested in his own well-being and feeling comfortably cut off from a large part of society. When his wife died (the year before), I think his will to live went with her. He was depressed in the colloquial sense, not necessarily in the clinical sense. He was subdued; he was world-weary; he was pessimistic. He couldn’t grasp life in its myriad aspects and enjoy it.
CNN: What can we learn from the legacy of Henry Friendly?
Dorsen: For the layman, or lawyers who are not judges, it unveils an important aspect of our government that no one pays attention to: His life shows the importance of having a good Court of Appeals, and it also shows what an outstanding judge can accomplish. You cannot be indifferent to who gets on the bench, particularly in this rather unknown tier of the judiciary.
To professionals, scholars, judges, they could learn a lot from this book. What I try to do is show how Judge Friendly’s mind worked, how he was unhappy with extreme positions, so that somebody who’s a lawyer – he or she will understand how to convince judges. Also, clients often do not understand what judges do, what they look for. People learn how the legal system works and how they relate to the legal system. I think there’s something to learn from Friendly’s life for anybody who’s reasonably sophisticated and willing to work a little bit.