On Becoming a Great Judge: The Life of Henry J. Friendly

Article excerpt

On Becoming a Great Judge: The Life of Henry J. Friendly HENRY FRIENDLY: GREATEST JUDGE OF HIS ERA. By David M. Dorsen. Cambridge, Massachusetts: Harvard University Press, 2012. 512 pages. $35.00.

Reviewed by Frederick T. Davis*

In writing a biography of Henry Friendly, author David Dorsen has taken on an enormous challenge: the subtitle is "Greatest Judge of His Era"-a claim that few who knew Judge Friendly, or are familiar with his remarkable legal legacy, would dispute. Judge Friendly leftan unparalleled body of written opinions from his twenty-five-year career on the bench and was a vigorous presence at the very highest level of his profession through prolific writings, energetic participation in groups such as the American Law Institute, and his many professional friends.1 His opinions remain, even today, among the most cited in the federal jurisprudence;2 for those who knew him, he was an incomparably towering influence. To summarize the life of this remarkable person, and to offer some explanation of how he developed his formidable skills and extraordinary impact, is no easy task. David Dorsen does a remarkable job. His biography is not only rewarding for those who knew Judge Friendly or are familiar with his work, but also provides a readable and accessible exploration of how one person arrived at such a remarkable level of excellence in his profession.

I was a law clerk for Judge Friendly during the 1972-1973 term of the United States Court of Appeals for the Second Circuit. As it was for every lawyer who had this extraordinary opportunity, the year was one of the most remarkable experiences of my professional life. Unusually for a judge who died more than twenty years ago, his law clerks still reunite every three years or so to share recollections about our year with the Judge and his impact on our own thoughts and careers. This is no group of underachievers-it includes a number of very prominent professors and judges, including the Chief Justice of the Supreme Court-yet the prevailing sentiment is universally one of awe, occasionally tinged with a sense of fear that Judge Friendly might somehow look over our shoulders and remind us of standards of excellence that all of us still strain to meet.

I approached the Dorsen biography with a particular question that has always fascinated me: how was it that the son of a small-town manufacturer in upstate New York became the titan of his profession?3 Is it possible to find an explanation, or even a description, of his path to brilliance? A few years before he died, Judge Friendly permitted me to spend several hours tape-recording his reminiscence from both before and during his judicial career. While those recordings were transcribed, I never succeeded in editing or publishing them, and thus was thrilled when David Dorsen took them over and skillfully used them in his biography.4 Complemented by the thorough research he has done and access to Judge Friendly's files, friends, and family, the biography offers some clues to Friendly's emergence as one of the principal legal voices of his generation.

The first clue may seem obvious: Henry Friendly was simply a brilliant intellect, endowed with extraordinary skills. David Dorsen describes, and all of Friendly's law clerks well remember, the Judge's ability to sit down at a table with a ballpoint pen and two pads-one for the text of his opinions, the other for the footnotes-and simply write them out in one draft, often in one sitting, citing precedent from memory and when necessary marching over to find the text of the decision he wanted to quote, from memory pulling exactly the right volume of the Federal Reporter from the shelf. This technical brilliance was not a late development. When he arrived at Harvard College in 1919 at age 16, he had a keen interest in mathematics and took the most advanced course in mathematics available to entering undergraduates.5 When the grades arrived, he had received the second-highest grade ever received by a student in the history of the course. …