Henry Friendly | |||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
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| Senior Judge of theUnited States Court of Appeals for the Second Circuit | |||||||||||||
| In office April 15, 1974 – March 11, 1986 | |||||||||||||
| Chief Judge of theUnited States Court of Appeals for the Second Circuit | |||||||||||||
| In office July 20, 1971 – July 3, 1973 | |||||||||||||
| Preceded by | J. Edward Lumbard | ||||||||||||
| Succeeded by | Irving Kaufman | ||||||||||||
| Judge of theUnited States Court of Appeals for the Second Circuit | |||||||||||||
| In office September 10, 1959 – April 15, 1974 | |||||||||||||
| Appointed by | Dwight D. Eisenhower | ||||||||||||
| Preceded by | Harold Medina | ||||||||||||
| Succeeded by | Ellsworth Van Graafeiland | ||||||||||||
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| Personal details | |||||||||||||
| Born | Henry Jacob Friendly (1903-07-03)July 3, 1903 Elmira, New York, U.S. | ||||||||||||
| Died | March 11, 1986(1986-03-11) (aged 82) New York City, U.S. | ||||||||||||
| Cause of death | Suicide by drug overdose | ||||||||||||
| Party | Republican[1] | ||||||||||||
| Spouse | |||||||||||||
| Children | 3 | ||||||||||||
| Education | Harvard University (AB,LLB) | ||||||||||||
| Awards | Presidential Medal of Freedom (1977) | ||||||||||||
Henry Jacob Friendly (July 3, 1903 – March 11, 1986) was an American lawyer and jurist who was afederal circuit judge on theUnited States Court of Appeals for the Second Circuit from 1959 to 1986. He served as the court'schief judge from 1971 to 1973 and presided over its specialized railroad court from 1974 to 1986.
Born inElmira, New York, Friendly distinguished himself as a prodigy atHarvard College and thenHarvard Law School, where he was president of theHarvard Law Review and achieved the highest grades in the school's history. After clerking for JusticeLouis Brandeis, he co-founded the law firm ofCleary Gottlieb Steen & Hamilton in 1945 and became thegeneral counsel and vice president ofPan Am Airways in 1946. On the recommendation of JudgeLearned Hand and JusticeFelix Frankfurter, PresidentDwight Eisenhower appointed Friendly to the Second Circuit in 1959.
In the 27 years he served as a federal judge, Friendly was a prodigious writer who penned more than 1,000 opinions while authoring books andlaw review articles that are now considered seminal. He was especially influential in the fields ofadministrative law,securities regulation, andfederal jurisdiction. His opinions remain some of the most cited in federal jurisprudence and he is considered one of the most prominent and influential judges of the 20th century.[2][3][4]
Friendly was born inElmira, New York, on July 3, 1903, the only child of a middle classGerman-Jewish family.[5] He was descended fromSouthern German dairy farmers inWittelshofen, Bavaria, that had adopted the surname ofFreundlich. Josef Myer Freundlich (1803–1880), Friendly's great-grandfather, was a prosperous farmer whose estate burned down in 1831; after being denied help by his neighbors because he was Jewish, Josef grew affluent from livestock dealing. Heinrich Freundlich, Friendly's grandfather, immigrated to the United States in 1852 to avoid conscription andanglicised the family surname toFriendly. Heinrich worked as a businessman inCuba, New York, beginning as apeddler. He progressed to own a carriage factory before the birth of Friendly's father, Myer Friendly,[a] who migrated to Elmira in his youth.[7]
The Friendlys resided in the primarily Christian, western side of Elmira, opposite of the city's Jewish community. They held various civic positions in town, lived comfortably, and were known as active members of the local German-Jewish population.[8] A monograph in Elmira commemorates Friendly's grandfather, a generous donor to the Jewish community, as "one of the leading men of Elmira in the late nineteenth century."[9] Though not devoutly religious, the family attended aReform temple alongside other German Jews and held abar mitzvah for their only son.[10][b]
Friendly demonstrated precocious abilities in reading and diction at a young age. As early as age seven, "he could read almost any book written for adults."[9] His mother, Leah Hallo, was abardolater skilled atcontract bridge with an excellent memory. She "poured all her attention to her son," headed a localShakespeare club, and frequently took him toGilbert and Sullivan performances; he later recalled, "there was absolutely nothing she wouldn't have done for me."[9] Myer, by contrast, was a conservative father who impressed high standards of work and perfection. The marriage began unhappy with Leah choosing to move in with her sister in Chicago, but she later returned.[12] "We didn't have a very close family," Friendly remembered.[13]
As a child, Friendly was known locally for his earnestness.[13][c] Outside of school, he frequented the outdoors, often walking toMark Twain's study,[d] and visited a great-aunt who played scores ofRichard Wagner.[15] He experienced his first exposure to law while serving as a teenageexpert witness in abreach of warranty trial. By means of a friend's father, a lawyer, he developed a respect for the profession.[16] He was a committed reader who enjoyed baseball but was an overweight, unathletic teenage boy. Myer, a sportsman and fisherman, took his son on forays that Henry would ultimately come to reject, which disappointed Myer. Henry also lacked dexterity and struggled with handling objects into adulthood; after puncturing his hand with a pencil, he lost function of his left-handlittle finger and contracted a serious case ofblood poisoning. Eye problems developed during boyhood, which would advance toretinal detachment in 1936, further complicated his health.[15] A lack of friends, combined with a lack of close relationships, resulted in social and emotional defects that persisted throughout his life.[17]
Although he missed several periods of school away on family vacations, Friendlyskipped three grades,[18] taking interests inAmerican history andEnglish literature—especially English writersGeorge Eliot andWilliam Makepeace Thackeray—but avoided science. He became a versatile student at theElmira Free Academy, where he was considered one of the "most brilliant students ever to attend" and once discovered a mathematical error in itstrigonometry textbook.[19] He was chosen to be classvaledictorian and editor-in-chief of the academy's newspaper,The Vindex.[20] Upon graduating in 1919, he sat theNew York Regents Examinations, attaining the highest scores ever recorded in its 55-year history.[14]
After obtaining a copy of its catalogue, Friendly was drawn toHarvard; two months after his sixteenth birthday, he left Elmira forCambridge to matriculate atHarvard College, which had accepted him on merit.[21] He was a taciturn, underage student—the sole undergraduate from Elmira, unfamiliar with classmates, and lacking social skills in a college whose students disproportionately came from elite families and belonged to exclusive clubs.[e] Instead, Friendly frequented theBoston Symphony Orchestra, theMuseum of Fine Arts, and immersed himself with a focus in history, philosophy, and government, achieving superlative grades every year. He especially enjoyed history, a pursuit reinforced by Harvard's modern approach that emphasized the field's intellectual and political aspects.[23] Indicating his standing as one of Harvard's top eight students, Friendly's performance won him election to thePhi Beta Kappa honor society. His successes in the classroom were noticed by peers. ClassmateAlbert Gordon recalled: "we thought of him not only as the smartest in the class but the smartest at Harvard College."[24]
Harvard housed the nation's leading faculty devoted to European history, which became Friendly's specialty.[25] He took courses under prominent scholarsCharles Homer Haskins,Archibald Cary Coolidge, andFrederick Jackson Turner.[22] He was exposed to government under presidentAbbott Lowell,[24] then European diplomatic history underWilliam Langer.[26] The professor he admired the most wasCharles Howard McIlwain, whose course in medieval England he credited with being "the greatest educational experience I had at Harvard College."[27] The medievalist urged that "one must read words as they meant to the people of the times rather than as they mean to us," advice Friendly adopted.[28] A paper titled "Church and State in England under William the Conqueror," written in McIlwain's course, earned Friendly theBowdoin Prize; members of the faculty told him it could easily be accepted as a doctoral dissertation.[29][f] History professorFrederick Merk judged one exam answer given by Friendly as worthy of publication in an academic journal and assured him that he would eventually be appointed to the faculty.[31] McIlwain was so impressed with Friendly's work that he encouraged him to study medieval history with the promise of a Harvard professorship.[32]
In 1923, Friendly graduatedsumma cum laude and first in his class at only age 19, "importuned to continue on for a doctorate."[33] His reputation at Harvard was such that, when he defended hissenior thesis, the number of professors and students that came in attendance was so great that the defense was moved toSanders Theater.[34]
Inspired by McIlwain, Friendly contemplated an academic life.[35] He intended to pursue a Ph.D. in medieval history after graduation, confounding his parents' wishes for him to enroll inHarvard Law School. After Harvard awarded Friendly a prestigious Shaw Traveling Fellowship for abroad study, he notified his parents of his ambitions for a doctorate; Myer and Leah then steered connections to contact JudgeJulian Mack,[g] informing him "about this dreadful thing that was about to occur."[37] Following Mack's recommendation, they arranged for Friendly to meet law professorFelix Frankfurter with the aim of dissuading him from pursuing a career in history. Frankfurter convinced Friendly to follow through the fellowship—which enabled postgraduate studies in Europe for a year in Paris, theUniversity of Cambridge, and theUniversity of Oxford[h]—then tentatively attend the Law School.[39][i]
From 1923 until 1924, Friendly sojourned in Europe. He witnessed the alarming inflation and social unrest within theWeimar Republic, then traveled to Amsterdam and thirdly to Paris, where he attended theÉcole pratique des hautes études for a few months and presented a French paper on 14th century parliament. He found the lectures on law there unimpressive, admitting that "between the two, I much preferred history...if anything could give one a distaste for law that was it."[40] After stopping in Italy, his studies led him to the universities of Oxford and Cambridge in England. With the year "moderately successful" though still "somewhat dissatisfied," Friendly returned to the United States and entered Harvard Law School.[41]
Friendly excelled academically as a young prodigy at Harvard Law School, finishing first in his class all three years.[42][j] He quickly drew the attention and praise of its professors, includingThomas Reed Powell, a proponent oflegal realism, as well asformalistsSamuel Williston andJoseph Beale, andZechariah Chafee and deanRoscoe Pound.[46] After one examination,Calvert Magruder, Friendly's first-year teacher incontract law, left him a congratulatory note: "[I have] never run across as beautiful [an exam] book as yours in Contracts... [nor one with your] sense of values and emphasis, the logical construction of your answers, your compactness & facility of expression."[47] Although he was not enrolled in any of his classes, Friendly was also the favorite student of Frankfurter and would be frequently summoned by him for discussions even during the middle of examinations.[48] Under Frankfurter's influence, Friendly grew interested infederal jurisdiction and the emerging field ofadministrative law.[48]
After being selected to be an editor of theHarvard Law Review in his first year, Friendly was then elected the president of theHarvard Law Review his second year.[k][50] WithHerbert Brownell Jr., the editor-in-chief of theYale Law Journal, he drafted the first edition ofThe Bluebook and is considered its creator.[51] On top of his commitments to the law review, Friendly was also an active member of theAmes Moot Court Competition, where he won the Marshall Prize for its bestbrief.[52] The summer of his second year was spent on an invitation from Frankfurter to make acquaintances with distinguished juristsLearned Hand,Augustus Noble Hand, Julian Mack, andC. C. Burlingham in New York City, then as an aide underEmory Buckner to prosecute former attorney generalHarry Daugherty at the U.S. Attorney's office.[53]
In 1927, Friendly graduated from Harvard Law School asclass president and the first student in its history to ever earn anLL.B. withsumma cum laude honors.[54][55] His academic record is still considered the best in its history, surpassing that ofLouis Brandeis, and the achievements he amassed earned him a "legendary" status that became "part of the lore of the university," according to theHarvard Law Review.[56][l] Every honor the law school had to offer was bestowed upon him.[54] The Fay Diploma,[m] its most distinguished decoration, was awarded to him,[61] as were both Sears Prizes, given usually to two who achieved the highest first and second year grades.[62] But despite his outstanding record, Friendly found Harvard Law School "terribly disappointing" and "pretty bad."[45] He thought highly of thecase method but rarely enjoyed the faculty instruction. Criminal law, taught by Pound, bored him, as did Beale. "After a few thrilling months with Williston and Hudson at the beginning of the first year, everything seemed to slide," he wrote to Frankfurter.[63] For the rest of his life, Friendly seriously doubted his decision choosing law over history.[64]
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In Friendly's second year, Frankfurter notified him of his decision to appoint him as alaw clerk to JusticeLouis Brandeis on the Supreme Court.[65] Brandeis was aware of Friendly's intellectual achievements at Harvard; both he and Frankfurter foresaw a career for Friendly in the legal academy.[65] In Friendly's third year, Frankfurter changed course. He suggested that Friendly delay the clerkship to remain at Harvard for a fourth year to study, teach, and research for him.[66] Friendly declined, tired of law school. Buckner advised him to immediately proceed to the clerkship then be a practitioner.[67] The competing interests of Brandeis, Frankfurter, and Buckner led to a quarrel over whether he should enter the academy or the private practice of law.[68][n] Ultimately, Friendly forewent a postgraduate year.[69] He decided to begin with Brandeis in the fall after graduation, and traveled to Washington, D.C., where a front-page story byThe Christian Science Monitor described their association as "the two highest Harvard Law men to work together."[70]
The clerkship with Brandeis had a lasting impact on Friendly.[71][o] He admired the justice's encyclopedic knowledge of the law and held a deep respect for his intellect.[70] Brandeis, who spent long, isolated hours away from his clerk working, championedjudicial restraint and often chose to defer to the legislatures.[73] Both obsessed over issues of federal jurisdiction, with Friendly helping Brandeis to avoid decision on those grounds as a "jurisdiction hound."[74] He recalled that Brandeis would think autonomously to form his own opinions: "neither bitter personal attack nor temporary defeat could shake Brandeis’ faith in the future, provided men would continue to fight."[73]
Playing important roles in complicated cases under Brandeis would aid Friendly in private practice and as a judge.[73] Notwithstanding the little time they spent together, both he and the justice viewed each other highly.[75] Brandeis, in a telephone with Frankfurter, declared, "If I had another man like Friendly, I would not have to do a lick of work myself."[72] Friendly praised Brandeis as knowing "more law than almost the rest of the Court together" and titled him as "an absolutely superb technician: really the best in cases like complicatedInterstate Commerce Commission cases."[76] The most prominent case of the term had beenOlmstead v. United States (1928), challenging governmentwiretapping, in which Friendly convinced the justice to remove from his dissent an erroneous passage which described television as being able to "peer into the inmost recesses of the home."[77] He would be among Brandeis's most highly ranked clerks, alongsideDean Acheson,Paul Freund, andWillard Hurst.[78] When he left, Brandeis wrote Frankfurter regarding Irving Goldsmith, Friendly's replacement: "Goldsmith will have a hard time as the successor to Friendly."[79]
While still a clerk for Brandeis, Friendly received an offer to be anassociate professor at Harvard Law School, which the justice pressed him to accept, as he often wished for his clerks to enter academia or public life. Between a choice to assume the professorship or enterprivate practice, Friendly chose the latter, becoming an associate in the prominentwhite-shoe law firm of Root, Clark, Buckner, Howland & Ballantine (laterDewey Ballantine) in September 1928.[80] He was willing to sacrifice pay for a career in history, though did not share the same enthusiasm for legal scholarship and declined to be a professor. He had also explored the possibility of joining the Interstate Commerce Commission but became determined to work privately in New York. A practice in law offered independence and financial stability, qualities for which he yearned.[81]
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Elitism andantisemitism had been pervasive in law firms. His record at Harvard Law School made him a natural candidate for any New York firm, but antisemitism undermined Friendly's choices.[83] Root, Clark was among the few firms inWall Street to hire Jews in addition to having a Jewishpartner, a characteristic which attracted him: "it was the only place in New York that a Jew could get a job."[84] He interviewed also atSullivan & Cromwell, which also permitted Jews, though turned down an offer after undergoing a series of interviews, suspecting them to be predicated on antisemitic beliefs and the offer due only to his having been president of theHarvard Law Review.[85]
For 31 years, Friendly stayed in private practice, where his specialty evolved into a combination of administrative,common-carrier, and appellate law.[86] After passing the New York bar in 1928, he developed an outstanding reputation during his years as an attorney from 1928 to 1959.[1] He had begun in September 1928 at Root, Clark, where he eventually was made a partner on January 2, 1937.[87][88]
The firm first assigned him as an assistant toGrenville Clark, a senior partner who had suffered anervous breakdown, with the intent that Friendly's aid and experience might reinvigorate him. Clark had been a prominentcorporate lawyer, a fellow graduate of Harvard Law School, and nominee of theNobel Peace Prize.[89] Friendly's assistance, however, failed to improve his health. After months of uneventful work under Clark, Elihu Root Jr.[p] reassigned Friendly to a case representingPan American-Grace Airways and its president,Juan Trippe. Friendly would assume control of the company's legal affairs with Root's consent not long afterward, primarily tasked with handling its contracts and diplomatic relationships. In 1929, he began a romantic relationship with Sophie Stern, daughter of future JudgeHorace Stern, and the couple married on September 4, 1930.[91] It was his first serious relationship with a woman.[92]
In 1931, Brandeis once again urged Friendly to join the faculty of Harvard Law School, this time with the additional support of Frankfurter,Roscoe Pound,Calvert Magruder, and Edward Morgan. When Friendly refused in order to remain in private practice, Brandeis and Frankfurter attempted to get him to join theReconstruction Finance Corporation (RFC) as itsassistant general counsel the next year at the invitation ofEugene Meyer. He turned down this office also, a decision which came as a disappointment to Frankfurter.[93] The Law School continued to make repeated requests for Friendly to join its faculty, all of which were ultimately unsuccessful.[94]
From 1931 until 1933,John Marshall Harlan II, a senior associate[95] at Root, Clark, was embroiled with a case representing thewill of the late heirless Ella Virginia von Echtzel Wendel. Wendel, a wealthy recluse who was the sole owner of about $100 million of real estate,[96] left a substantial fortune of $40–50 million to unknownnext of kin. Hundreds of claimants—many fraudulent—arose to inherit a part of the estate. Friendly was a prime assistant to Harlan, proving false the claim of a prominent candidate, and whose extensive research into the claimant's forgeries led to the dissolve of several other parties' cases.[97] He would recall of the case:
John Harlan and I often remarked to each other that theWendel Estate litigation was the most enjoyable forensic experience of our lives. It combined the elements of drama with—what is not always available—the financial resources needed to do a thoroughly professional job.[98]
Friendly was responsible forPan Am's congressional affairs, spending much of his time in Washington, D.C., litigating contracts. He accompanied Trippe in his role as a legal advisor and sat adjacent to him in conference meetings. DuringWorld War II, Pan Am underwent rapid expansion, some of which were facilitated by Congressional funds appropriated in an agreement to use the company's airfields as astaging ground for the war effort. Friendly and Pan Am lawyerJohn Cobb Cooper sought to gain an advantage over theU.S. Department of War in dictating its terms—their effective efforts later came under scrutiny in a Senate investigation led by Missouri SenatorHarry S. Truman, one which ultimately found no wrongdoing.[99]
With fellow associateLeo Gottlieb, Friendly began considering leaving Root, Clark to start a new firm. The two left in 1945, forming Cleary, Gottlieb, Friendly & Cox (nowCleary Gottlieb Steen & Hamilton),[q] and were joined by a number of the firm's associates and partners.[101] The departure of a substantial portion of its lawyers caused a serious split in Root, Clark; though the firm was damaged, it left on good terms with the newly formed Cleary, Gottlieb.[102] Cleary, Gottlieb's immediate success dispelled Friendly's initial financial fears amidst a decliningpostwar economy.[103]
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Friendly brought Pan Am andNew York Telephone to the new firm. In 1946, the former appointed Friendly as itsgeneral counsel and vice president, a position he would serve in until 1959.[104][105] In working for both Cleary, Gottlieb and Pan Am simultaneously, he was split between commuting to the firm in Wall Street and the Pan Am headquarters located in theChrysler Building. Cleary, Gottlieb grew quickly, and it would attract high-profile clients such asBing Crosby,Albert Einstein,[106] the French government, andSherman Fairchild.George W. Ball, who had joined the firm at its invitation, left to serve asUnited States Under Secretary of State and, later,United States Ambassador to the United Nations. Elihu Root Jr. and Grenville Clark, formerly of Dewey, Ballantine, resigned their positions to join Cleary, Gottlieb asof counsel.[107]
While working for Pan Am, Friendly proved himself to be a skilled litigator, adept incross-examination. In a case involving the company,Trans World Airlines (TWA), andAmerican Overseas Airlines (AOA),[108] Friendly's cross-examination of multiple airline executives revealed contradictory statements which were refuted by internal data. On one occasion, his employment of a sometimes aggressive, unapologetic approach in questioning led to an objection bycounsel, though Friendly refused to recant his methods. The case, which concerned Pan Am's acquisition of the AOA,[109] also involvedJames M. Landis, formerDean of Harvard Law School, who had a personal feud with both Friendly and Trippe; Landis represented the TWA in its efforts to compete against Pan Am for the purchase of the AOA. Friendly's cross-examination of Landis led to the upholding of Pan Am's acquisition by theCivil Aeronautics Board, and President Harry Truman's signed approval on July 10, 1950, unexpectedly gave Pan Am the benefit of additional access to airways which it did not ask for. TWA appealed the controversial decision by Truman to theUnited States Court of Appeals for the Second Circuit, which in turn upheld Friendly's arguments and struck down the appeal.[110]
The majority of Friendly's appellate litigation would be in the service of Pan Am, though in 1956 he won aNew York Court of Appeals case for the New York Telephone Company against the Public Service Commission. He also successfully distinguished himself inoral argument at theCourt of Appeals for the First Circuit, where he argued before Judge Calvert Magruder, who had previously been among those to recommend Friendly to join the Harvard Law faculty. In 1959, Trippe approached Friendly to strike a contract withHoward Hughes for the purchase of sixBoeing jets. With Raymond Cook,[111] Hughes' lawyer, Friendly's efforts to clear the contract ensured its survival amidst a bond issue with theU.S. Securities and Exchange Commission. The $40 million deal was one of the hastiest Friendly drafted and would be one of his last acts in private practice.[112]
Upon the election ofDwight D. Eisenhower as president in1952, Friendly sought out an opportunity for judicial appointment. Decades of private practice had begun to take a toll on his mental health; cases for Pan Am before the CAB were, he believed, monotonous and unsatisfying. Attorney GeneralHerbert Brownell Jr., with whom Friendly worked with during his days at Harvard Law, began searching for potential candidates to theCourt of Appeals for the Second Circuit. It was recommended that Friendly take up a preliminary appointment on the district court, but he eschewed a position, having previously attended it as a disappointed spectator.[113]
I think there have been not more than two occasions during the long period I have served as a judge when I have felt it permissible to write a letter in favor of anyone for judicial appointment. However, I feel so strongly that the Second Circuit would be greatly benefitted by the appointment of Mr. Henry J. Friendly that I cannot forbear writing you to express my hope that you may see fit to fill the vanacy now existing in the Circuit by selecting him. I have not the slightest doubt that as a Circuit Judge he would be an addition to our court, as great as, if not greater than, anyone else you could choose; not only because of his unblemished reputation and high scholarship, but because of his balanced wisdom and wide outlook.
Friendly's performance in private practice bore little influence on his being a viable candidate. His specialized practice in administrative law was known only to a select group of fellow lawyers in New York, and he had appeared before theU.S. Supreme Court twice, losing both cases. Additionally, the legal bouts against Landis and TWA received limited media coverage, nor was he an active member of academia, having turned a career as a professor down years prior. He was primarily distinguished by his exceptional performance at Harvard Law School, his clerkship for Justice Brandeis, and the reputation he accrued during his years in practice.[115]
In 1954,John Marshall Harlan II was appointed by Eisenhower to the U.S. Supreme Court to replace JusticeRobert Jackson, leaving his position on the Second Circuit vacant. Felix Frankfurter and Learned Hand soon emerged as vocal supporters of Friendly to fill the seat, though ultimately the position went toJ. Edward Lumbard. Friendly lobbied friends, colleagues, and close aides—includingLouis M. Loeb and State SenatorThomas C. Desmond—in the case another vacancy arose. The unexpected development of acataract in his left eye nearly endangered his candidacy, though symptoms abated following a successful eye surgery.[116] He was once again passed over when JudgeJerome Frank died in 1957. In spite of Frankfurter's vehement support for Friendly, Frank's seat was filled byLeonard P. Moore.[117]
On October 23, 1957, Brownell Jr. resigned as Attorney General and was replaced byWilliam P. Rogers,[118] who soon received letters from Frankfurter when JudgeHarold Medina announced his retirement in January 1958. TheAssociation of the Bar of the City of New York supported Friendly's candidacy to take Medina's seat and theAmerican Bar Association appraised him as "exceptionally well qualified."[119] The candidates to fill the seat of Medina also includedIrving Kaufman, who had the bipartisan backing of both the state's Democrats and prominent Republicans, which Friendly lacked. Kaufman attempted to reinforce his platform by seeking the additional endorsement of Learned Hand, but Hand avoided doing so, using his law clerk,Ronald Dworkin, as a means of evading a potential meeting. In 1959, political support shifted towards Friendly as a compromise candidate and he was further bolstered by a public endorsement by Learned Hand soon after. On March 10, 1959, Eisenhower nominated Friendly to the U.S. Senate, a move praised byThe New York Times andThe Washington Post.[120] Frankfurter's voiced support to Minority LeaderLyndon B. Johnson, who in turn convinced SenatorThomas Dodd to send the hearing notice, ensured Friendly's confirmation on September 9 of that year.[121]
Friendly received his commission to the Second Circuit Court of Appeals on September 10, 1959.[104] He was 56 years old.[122] JusticeJohn Marshall Harlan II swore him in on September 29, 1959, at the United States Courthouse (now theThurgood Marshall United States Courthouse) in Manhattan.[123] Friendly joined just four other active judges on the court: Chief JudgeCharles Edward Clark, alongside the conservative Lumbard, liberalSterry R. Waterman, and the more conservativeLeonard P. Moore. They were of similar age, experience, and party. Both Lumbard and Moore had been Wall Street lawyers with service as U.S. attorneys, and the former was especially conservative in matters of criminal law. The fact that they never met in person to discuss cases contributed to Friendly's feeling that the court lacked a sense of mutual respect and intellectual discourse.[124]
Despite his initial reservations, Friendly established himself as being complaisant and sensitive to his colleagues, incorporating suggestions from the other judges whenever possible.[125] Lumbard was elevated to chief judge towards the end of the year, and the Court's efficiency and affability improved.[126] Former Connecticut congressmanJ. Joseph Smith was Eisenhower's final appointment, arriving in 1960.[124] Present but inactive judges included seniorHarold Medina, and the celebrated but agedLearned Hand.[127] Friendly came to accept Hand, who attended periodically before dying in 1961, as beyond his prime years.[127] Though formidable, the Court was less respected than it had been under Hand's tenure, when its composition includedAugustus Hand andJerome Frank.[126]
Friendly was apprehensive about his judicial ability and was initially beset by self-doubt in writing opinions. He first arrived on the bench on October 6, 1959, and erroneously ruled in favor of the government inUnited States v. New York, New Haven & Hartford R.R. The case, which was on appeal, concerned theInterstate Commerce Commission and fell under theExpediting Act, which in turn required the case to bypass the court of appeals directly to Supreme Court.[128] Wary of another mistake, Friendly began taking a strictly literal interpretation of laws. Regarding his indecisiveness over one decision, he told Learned Hand of his fears; Hand exclaimed, "Damn it, Henry, make up your mind. That's what they're paying you to do!"[129]
He would continue to serve as a judge for the rest of his life, assumingsenior status on April 15, 1974. He served as a member of theJudicial Conference of the United States, where he was its chief judge from 1971 to 1973, and was also a presiding judge of the Special Railroad Court from 1974 to 1986. His judicial service was terminated on March 11, 1986, due to his death.[104]
During his tenure, Friendly would pen over 1,000 judicial opinions while remaining active as a scholarly writer.[130] He wrote extensively in law reviews, publishing works that were considered seminal in multiple fields and extraordinary in combination with his existing workload as an appellate judge.[131][5]
| External videos | |
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 Legacy of Judge Henry Friendly, March 10, 2017,C-SPAN |
In a ceremony following Friendly's death,Chief JusticeWarren E. Burger said, "In my 30 years on the bench, I have never known a judge more qualified to sit on the Supreme Court." At the same ceremony, JusticeThurgood Marshall called Friendly "a man of the law."[132] In a letter to the editor ofThe New York Times following Friendly's obituary, JudgeJon O. Newman called Friendly "quite simply the pre-eminent appellate judge of his era" who "authored the definitive opinions for the nation in each area of the law that he had occasion to consider."[133] In a statement after Friendly's death,Wilfred Feinberg, the 2nd Circuit's chief judge at the time, called Friendly "one of the greatest Federal judges in the history of the Federal bench."[133] JudgeRichard A. Posner described Friendly as "the most distinguished judge in this country during his years on the bench" and "the most powerful legal reasoner in American history."[134][133]Akhil Amar called Friendly the greatest American judge of the 20th century. Amar also cited Friendly as a major influence on Chief JusticeJohn Roberts.[135]
Friendly was a member of theHarvard Board of Overseers from 1964 to 1969, and was also a member of the executive committee of theAmerican Law Institute. He was awarded thePresidential Medal of Freedom in 1977 and the Thomas Jefferson Memorial Award in Law in 1978.[136] He was awarded numerous honorary degrees, including aDoctor of Laws byNorthwestern University in 1973, and aDoctor of Humane Letters andLL.D. from Harvard.
Harvard Law School has a professorship named after Friendly. Paul C. Weiler, a Canadian constitutional law scholar, held it from 1993 to 2006;[137]William J. Stuntz, a scholar of criminal law and procedure, held it from 2006 until his death in March 2011.[138] The professorship is currently held by Carol S. Steiker, a specialist in criminal justice policy and capital punishment.[139] TheFederal Bar Council awarded Friendly a Certificate of Distinguished Judicial Service posthumously in 1986.[140] TheHenry J. Friendly Medal, established by theAmerican Law Institute, was named in memory of Friendly and endowed by his former law clerks;[141] Justice Sandra Day O'Connor received the award in 2011.[142]
Friendly was a member of theRepublican Party.[143][144][145]
Sophie Pfaelzer Stern, Friendly's wife, was a member of a Philadelphia Jewish family and educated atSwarthmore College andFordham University. Following their marriage, the newly-wed couple traveled to Italy and Paris for their honeymoon.[146] Both Friendly and Stern shared a close relationship, and they had two children—David and Joan—by January 1937 and a third, Ellen, soon after.[147] As their marriage progressed, it became complicated and grew unintimate later in his life.[148]
Work engrossed Friendly, and he had a largely estranged relationship with his children, seeing them only during the summer.[149] He was also extremely reserved, showed both little emotion and signs of physical affection to his children, and was uninterested in their personal affairs. He sought to maintain an excessively formal environment, often retiring to study alone.[150] Joan Friendly Goodman, his second-eldest child,[151][152] remembered Friendly's difficult personality:
What he experienced he had difficulty expressing and because he expressed so little the feelings never were shaped, modulated, refined. . . . I knew what he wanted, but couldn't express himself [...] He was slightly gruff, too loud, used his voice rather than a caress to wake me, but I knew it was his way of saying I want to care for you. I saw the intent behind the deed when the gesture failed. He was always on the verge of giving vent to tenderness but, except in his letters, rarely able to do so.[153]
Friendly was a naturalpessimist and demonstrated some symptoms consistent withmajor depressive disorder. He harbored feelings of hopelessness in addition to experiencing bouts of extreme sadness, though not to the extent of impairing his diligence.[154]
Friendly's father, Myer, died at age 76 on December 28, 1938,[155] in a local hospital atSt. Petersburg, Florida; he was a longtimewinter resident in the city.[156][r] His father's death of ablood clot precipitated Friendly's lifelong fear of a stroke and concern for his own health.[157] Friendly's wife died of cancer in 1985.[158]
After Sophie's death from colon cancer on March 11, 1985, Friendly began to think seriously about committing suicide. Her death had been unexpected; she had been healthy and vigorous, while he had always been pessimistic and burdened with health issues. Friendly died by suicide at age 82 on March 11, 1986, in hisPark Avenue apartment in New York City;[144] multipleprescription bottles were at his side.[159] Police said they found three notes in the apartment: one addressed to his resident maid and two unaddressed notes. In all three notes, Friendly talked about his distress at his wife's death, his declining health and his failing eyesight, according to a police spokesman.[144] They had been married for 55 years. He was survived by a son and two daughters.[144]
Throughout Friendly's tenure on the Second Circuit, competition among third-year law students to be selected as one of hislaw clerks was intense. Besides a clerkship on the Supreme Court, a Friendly clerkship was the most coveted. For his first eight years on the bench, the judge hired exclusively from Harvard Law School, later taking students from other law schools based on the recommendation of professors.[160]
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| Preceded by | Judge of theUnited States Court of Appeals for the Second Circuit 1959–1974 | Succeeded by |
| Preceded by | Chief Judge of theUnited States Court of Appeals for the Second Circuit 1971–1973 | Succeeded by |
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