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A Full Portrait of one of America's Most Influential Judges
on April 1, 2012
An effective judicial biography focuses upon certain key elements of the judge's life: family background and education; professional career at the bar; how the subject became a judge; interactions on the bench if an appellate judge; and some taste of his judicial writings. By all these measures, this biography of Henry J. Friendly (1903-1986), who had a most distinguished and influential career on the Second Circuit between 1959 and 1986, more than satisfies. Not much I am aware of has been written about Friendly the man, and one definitely comes way from this extensive bio (about 500 pages including text, notes, and index) with a good sense of the man under the robe.
The book follows Friendly from his childhood in Elmira, NY, to Harvard Law School where his record was so strong as to rival that of Louis Brandeis. Here he encounters Felix Frankfurter and is elected president of the prestigious Harvard Law Review. Graduating in 1927, FF sends him off to clerk for Brandeis on the Supreme Court. More than the author, apparently, I think this period of working with LDB shaped Friendly's work habits and personality. Next, Friendly engages in a 32-year private practice career, and helps found the current firm of Cleary Gottlieb. His practice is heavy on administrative law, an area about which he would write extensively while on the bench and in publications. I am always intrigued by how one gets selected for the bench, and the author offers a short but insightful chapter on how Friendly made the cut (it is always helpful to have influential friends).
The author's research is unsurpassed; he interviewed all of Friendly's former clerks, many of whom have themselves had distinguished judicial or academic careers, as well reviewing his papers, all his decisions, his non-judicial writings, and conducting many additional interviews. This allows him to develop the real payoff to a solid judicial biography: how the judge functioned in chambers, how his opinions were written, and how he interacted with this colleagues and other judges (including Supreme Court Justices). Much like LDB, Friendly did his own work, for example writing all his own opinions (very unusual to say the least for Circuit Judges and Supreme Court Justices today). An entire chapter is devoted to his relationship with clerks, an area (pioneered by Todd Peppers among others) that affords an invaluable insight into how he discharged his responsibilities. He wrote alone, in prodigious amounts, and very, very quickly, even though hampered (like Brandeis) with poor vision. He neither liked over-zealous advocacy or being Chief Judge. But his opinions stand out because they accurately recount how he reached his decisions.
All this carries the reader to page 139 where the author tackles one of the most difficult choices in writing a judicial biography: how to address the body of the judge's written opinions, and how many of them to include. Often, judicial biographers dump onto the general reader so much legal material, their eyes glaze over. Here the author has decided to deal first with the personal elements of Friendly, and limit analysis of his decisions to the final sections of the book. Consequently, the reader confronts case analysis between pp. 139-345. Each of these 15 chapters is devoted to a single topic, and in toto they really cover the landscape of Friendly's opinions. I especially found the chapters on the Fifth Amendment; Administrative Law; Habeas Corpus; Federal Court Jurisdiction and Common Law; and Procedure to be very well done. This massive amount of opinion material is something to be considered by prospective readers. I prefer thoroughness, and this is what you thankfully get.
The author wraps it up with a chapter on Friendly's death and his legacy. One never is fixated on the fact that Friendly took his own life as he reads the book, because the focus is on Friendly in the full flower of his intellectual potency and considerable influence on the development of American law. A fine introduction by Judge Richard Posner, himself one of our finest Circuit judges, contains helpful insights into the Friendly he knew. Having handy a copy of Friendly's 1967 collection of articles,"Benchmarks," is decidedly helpful. 113 pages of notes attest to the author's thorough research. So, we have Gunther's fine bio of Learned Hand, one of the most influential Circuit judges (also on the 2d Cir.) during the first half of the 20th century; and this majestic bio of Henry Friendly who can claim that title for the second half of the century. We must be extremely thankful for both of the judges and for their impressive biographers.