Some Kind of Judge: Henry Friendly and the Law of Federal Courts
Brecher, Aaron P., Michigan Law Review
Some Kind of Judge: Henry Friendly and the Law of Federal Courts Henry Friendly, Greatest Judge of His Era. By David M. Dorsen. Fore- word by Richard A. Posner. Cambridge and London: The Belknap Press of Harvard University Press. 2012. Pp. xiii, 498. $35.
Überfans of the federal judiciary owe a lot to David Dorsen.1 His illumi- nating biography of Judge Henry Friendly is a fitting tribute to the contribu- tions of a jurist that many consider to be among the finest judges never to sit on the U.S. Supreme Court. Judicial biography is a difficult genre to do well,2 and most authors choose to focus on Supreme Court justices.3 But Henry Friendly, Greatest Judge of His Era is an excellent source of informa- tion on Friendly's life and, far more important, his views on the law and his relationships with some of the most fascinating figures in twentieth-century legal history.
Dorsen not only provides a detailed study of Friendly's life and career but he also uses the biography as a vehicle to explore the ways judges decide cases, the work of intermediate appellate courts, and Friendly's particular influence across many legal fields (p. 2). Dorsen devotes much of the book to demonstrating that Friendly was a "great" judge along a number of dimensions: his intelligence, productivity, professional accomplishments, approach to legal questions, and influence on the law (pp. 2-3). Dorsen contends that the "influence of a circuit judge on the development of federal law depends largely on whether other federal judges view his work as worth emulating. On that criterion, as well as others, Friendly demands attention" (p. 2).
Part I of this Notice briefly summarizes Dorsen's work, recounting the key facts of Friendly's life, his approach to judging, and those areas of the law most affected by Friendly's ideas. It concludes that Dorsen has indeed demonstrated Friendly's "greatness" to a certain degree. Part II explores Dorsen's notion of influence on the law by examining Friendly's impact on an area of law in which he was widely considered expert: federal jurisdiction. It expands Dorsen's conception of influence to include not only the extent to which subsequent judges have emulated Friendly but also the extent to which Friendly was a clear and forceful expounder of ideas that shaped the terms of the debate on issues of federal jurisdiction, even if his vision did not ultimately carry the day. Moreover, the relevant evaluators of influence should include Congress and academics in addition to other judges.
I. "Man for All Seasons in the Law"4
Henry Jacob Friendly was born in 1903 to a comfortably middle-class Jewish family in Elmira, New York (p. 6). In New York City in 1986, losing his sight and still mourning his wife Sophie's death a year earlier, he com- mitted suicide (p. 343). The years between these two events were marked by superlative academic and professional achievements juxtaposed against chronic bouts of melancholy, difficult relationships in his family life, and the cultivation of a famously gruff demeanor with subordinates and the lawyers who appeared before him. This Part focuses on Friendly's academic life and work as a judge.
Friendly's pre-judicial career would have been something to be proud of even if he had never ascended to the bench. After studying history at Harvard College, he attended Harvard Law School where he compiled one of the best, possibly the best, academic records in the school's history5 and served as president of the Harvard Law Review (pp. 12-27). Afterward, Friendly worked for Justice Brandeis as a clerk-a position for which Friendly's teacher Felix Frankfurter had selected him (pp. 26-27). Upon completing his clerkship, Friendly practiced law at Root, Clark, Buckner & Ballantine before leaving to found his own firm in 1946 with a number of other partners (pp. 1, 31-33, 50-51). That firm evolved into Cleary, Got- tlieb, Steen & Hamilton, which remains a Wall Street powerhouse today. …