Henry Friendly: As Brilliant as Expected but Less Predictable

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Henry Friendly: As Brilliant as Expected but Less Predictable HENRY FRIENDLY: GREATEST JUDGE OF HIS ERA. By David M. Dorsen. Cambridge, Massachusetts: Harvard University Press, 2012. 512 pages. $35.00.

We are fortunate that David Dorsen is Henry Friendly's biographer. Chronicling the life of a judge, in this case a longtime and hardly flamboyant private practitioner before he became a judge, could easily yield a product about which "wooden" would be a compliment. Dorsen is sophisticated, very smart and very wise, a fine lawyer, and a really good writer. He has produced a highly readable and truly interesting book. He combines astute analysis of the voluminous list of cases on which Judge Friendly sat with perceptive discussion of their political and social context and significance- both inside the court and in relation to the world outside. It is actually entertaining.

I was Henry Friendly's third law clerk from 1961-1962, more than fifty years ago. For a variety of reasons, I did not follow closely his judicial output or other writings after that time, so for me that portion of Dorsen's book (which is most of it) was largely new and in many respects fascinating. The first part of the book covers quite well his family life, with which I was already quite familiar, and his earlier career as a practicing lawyer. This is all interesting and important to know to get some idea of Friendly the man outside the court. But it is when Dorsen turns to the judicial substance that I find myself enthralled. It was a totally pleasant surprise to discover how engaging the descriptions and backstories of the cases were.

My experiences as Judge Friendly's law clerk bear out Dorsen's account, although almost entirely on the positive end of the continuum. He was rigorous and demanding but seldom if ever short with me in a hurtful way. I drafted only one opinion, a very short one toward the end of the year, and I distinctly remember feeling something close to ecstatic when he gave me the assignment. I had a similar rush earlier in the year when he allowed me to write a few paragraphs of the opinion in a fairly complicated case. And now and then he asked me to drafta textual footnote. Yes, those were special moments, too. Just out of law school, I thought this was how all judges functioned.

Friendly's routine was largely as Dorsen describes. He rarely took more than a day to write an opinion. At 5:30 or so, ready to embark for home, he would emerge with a finished draftopinion, at which point (after his secretary, Mrs. Flynn, typed it) it would be my job to cite-check it.1 The draftoften contained citations to old English cases. How did he find them, I wondered. I knew he didn't have the original cases in his office. Did he have a secret door or escape hatch in his office from which he could get to a library that had the cases? There seemed to be two answers. One, he knew some of the citations by heart, and two, he found the citations in later cases and cited the earlier originals. Either way, my job was to check his work. Either way, it was impressive.

Conversations in his office were brief. Whether I was asking or answering a question or putting forward an idea, the drill was largely the same. I would get half a sentence out and he would finish my sentence and then respond. Usually he had grasped instantly and correctly what I was trying to say. (Remember, he was brilliant, and that's an understatement.) I would be somewhat at my peril if I wanted to disagree or suggest that he had not understood what I was trying to say. Mostly he would say gruffly that he had heard me correctly the first time (although sometimes he hadn't) and occasionally I would get a second shot.

(A parenthetical note: I had another boss whose modus operandi in office conversations was exactly the same-Robert Kennedy. Kennedy and Friendly were poles apart in many ways, but conversations in their offices about work issues were identical. Just like Friendly, Kennedy would jump in and finish my question or suggestion and then reply. …