Henry Friendly

Henry Friendly
Henry Jacob Friendly (July 3, 1903 – March 11, 1986) was an American jurist who served as a circuit judge on the United States Court of Appeals for the Second Circuit from 1959 until his death in 1986. Friendly was one of the most prominent U.S. judges of the 20th century, and his opinions are some of the most-cited in federal jurisprudence.
Early life
Friendly was born in Elmira, New York, on July 3, 1903, to a middle class German-Jewish family. He was descended from Southern German dairy farmers in Wittelshofen, Bavaria, that had adopted the surname of Freundlich. Josef Myer Freundlich (1803–1880), Friendly's great-grandfather, was a prosperous Jewish farmer. Heinrich Freundlich, Friendly's grandfather, immigrated to the United States in 1852 and anglicised the surname to Friendly. Heinrich worked as a businessman in Cuba, New York, before the birth of Friendly's father, Myer Henry Friendly, who would migrate to Elmira in his youth.
Friendly demonstrated precocious abilities in reading and diction at a young age. His mother, Leah Hallo, played an intimate role in his upbringing; he later recalled, "there was absolutely nothing she wouldn’t have done for me". His father was by contrast strict and distant, impressing upon him high standards of work. The Friendly family were active members of the local German-Jewish population, lived comfortably, and held various civic positions in town. Though not devoutly religious, the family attended a Reform temple; Myers Henry held anti-Zionist views and viewed non-German Jews with distrust, dissuading his son from associating with them.
As a child, Friendly was docile and obedient, gaining a reputation for his earnest behavior. He committed himself to reading voraciously and played baseball, though he was also overweight and unathletic—traits which disappointed his father. He lost function of his left-hand little finger upon contracting a serious case of blood-poisoning and developed eye problems during boyhood which further complicated his health.
Education
Friendly had skipped multiple grades and took an interest in American history and English literature, though avoided science; his particular interests were in English writers George Eliot and William Makepeace Thackeray. He attended the Elmira Free Academy, where he excelled academically as an involved student. He later fondly remembered the school as a place with "very devoted and dedicated teachers who worked for a pittance", and had been editor-in-chief of the academy's newspaper, The Vindex. When the United States entered World War I, Friendly solicited war bonds in nearby towns while still enrolled, abandoning his initial support for Germany. He graduated in 1919 as the class valedictorian and attained the highest scores ever recorded in the New York Regents Examinations. It was at Elmira that Friendly developed core personal values, learning to value culture and responsibility.
Cornell University in Ithaca, New York, had been the most convenient choice for college, though Friendly opted instead to matriculate at Harvard University, drawn by the school's expansive catalogue. He enrolled in the fall of 1919 at age sixteen and passed a competitive examination which allowed him to skip a basic English course. In college, Friendly was taciturn and lacked social skills. The university's only student from Elmira, he was also alienated from other freshman students, who were two years his senior. Regardless, Friendly continued to excel in his studies with a focus in history, philosophy, and government; he faulted only in a physical training course where he obtained a B grade, and continued to avoid taking courses in science. His freshman course in government was taught by A. Lawrence Lowell, who was the president of Harvard at the time. Future attorney Albert L. Gordon, a classmate of his at Harvard, later reflected upon Friendly's reputation: "we thought of him not only as the smartest in the class but the smartest at Harvard College".
In 1923, Friendly graduated with an A.B., summa cum laude, and was elected to the Phi Beta Kappa honor society as one of his class' top eight students. In his junior year, he received the Bowdoin Prize for a paper entitled "The Fall of Naples: An Episode in the Risorgimento" which examined Italian statesmen Camillo Benso and Giuseppe Garibaldi. It was at Harvard that Friendly developed a passion for European history through courses with Charles Homer Haskins, Archibald Cary Coolidge, and Frederick Jackson Turner. He was exposed to European diplomatic history under William L. Langer. During his senior year, Friendly took inspiration from Charles Howard McIlwain, whose course in medieval England he credited with being "by all odds the greatest educational experience I had at Harvard College".
Postgraduate and law school
Friendly intended to pursue a Ph.D. in medieval history after graduation—a goal which conflicted with his parents' hopes for him to enroll in Harvard Law School—and was assured by professor Frederick Merk that he would be appointed to the university's faculty. Following a recommendation from Judge Julian Mack, his parents arranged for him to meet then-professor Felix Frankfurter with the aim of dissuading him from pursuing a career in history. Frankfurter convinced Friendly to take up a Shaw Fellowship, which enabled postgraduate studies in Europe for a year, then attend the Law School, dropping out if he disliked the experience.
From 1923 until 1924, Friendly's studies in Europe led him to the École pratique des hautes études in Paris and the universities of Oxford and Cambridge; he celebrated his twenty-first birthday in Germany accompanied by his parents. He entered Harvard Law soon after and finished first in his class during his first and second years. On his first day at the Law School, Friendly impressed Manley Ottmer Hudson by successfully identifying and translating the Law French of the English case I. De S. and Wife v. W. de S. He proved also to be a favorite of professor Felix Frankfurter, who often invited Friendly to join him, as well as James M. Landis and Thomas Gardiner Corcoran.
Friendly graduated from Harvard Law as class president with an LL.B., summa cum laude, in 1927. His academic record was one of the best in the history of the school. He achieved the highest grade point average of any Harvard Law student in the 20th century, and was the first graduate of the university to receive his law degree with such high honors. The Fay Diploma—the Law School's most distinguished decoration—was also awarded to him.
Friendly had been president of the Harvard Law Review, where he drafted the first edition of the Bluebook with Herbert Brownell Jr., and was an active member of the Ames Moot Court Competition, where he won the Marshall Prize for its best brief. While in New York City at Frankfurter's invitation, he became acquainted with many prominent jurists, including Judge Learned Hand and Charles Culp Burlingham. In the summer after his second year he assisted Emory Buckner with his prosecution of Harry M. Daugherty at the New York U.S. Attorney's office. Frankfurter recalled Friendly as "by long odds one of the ablest lawyers who came out of the Harvard Law School in my time", planning for him to begin a clerkship with Justice Louis Brandeis. A struggle then ensued between Frankfurter, Brandeis, and Buckner over whether he should enter academia or become a practitioner after clerking, ultimately ending with the decision for Friendly not to undergo a postgraduate year. Friendly began the clerkship in the fall of his graduation.
Clerkship
Friendly's relationship with Brandeis began tumultuously, owing to a newspaper which overzealously titled the clerkship as having "The two highest Harvard Law men to work together". He considered abandoning his clerkship due to the potential embarrassment which might have followed, though Brandeis never saw the headline and never read newspapers. The two maintained a tentative relationship afterwards. Brandeis did the bulk of the writing and was largely absent for the day, while Friendly saw him twice a day in short periods. Notwithstanding the little time they spent together, both Friendly and Brandeis viewed each other highly. The justice, in a telephone with Frankfurter, declared, "If I had another man like Friendly, I would not have to do a lick of work myself". Friendly praised Brandeis as knowing "more law than almost the rest of the Court together" and placed him highest in his rating of judges—above both Learned Hand and Frankfurter—later in his life.
Private practice
Between a choice to assume a professorship offer at Harvard Law School or enter private practice, Friendly became an associate in the white-shoe law firm of Root, Clark, Buckner, Howland & Ballantine in September 1928. Brandeis had pressed him to enter the legal academy at Harvard, alternatively suggesting for him to take up practice in Omaha, Nebraska, to avoid the elites of New York City; Friendly was willing to sacrifice pay for a career in history, though did not share the same enthusiasm for legal scholarship and declined the professorship. A practice in law offered independence and financial stability—qualities which he yearned.
Elitism and antisemitism were pervasive in law firms. Root, Clark was among the few firms in Wall Street to hire Jews in addition to having a Jewish partner, a characteristic which attracted Friendly. He interviewed also at Sullivan & Cromwell—which also permitted Jews—though turned down an offer, suspecting it to be predicated on antisemitic beliefs and due only to his having been president of the Harvard Law Review.
Friendly stayed in private practice for 31 years; on January 2, 1937, he was made a partner of Root, Clark. The firm first assigned him as an assistant to Grenville Clark, a senior partner who had suffered a nervous breakdown, with the intent that Friendly's aid and experience might reinvigorate him. Clark had been a prominent corporate lawyer, a fellow graduate of Harvard Law School, and nominee of the Nobel Peace Prize. Friendly's assistance, however, failed to improve his health. After months of uneventful work under Clark, Elihu Root Jr. reassigned Friendly to a case representing Pan 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-Judge Horace Stern, and the couple married on September 4, 1930.
In 1931, Brandeis once again urged Friendly to join the faculty of Harvard Law School, this time with the additional support of Frankfurter, Calvert Magruder and Edward Morgan. When Friendly refused in order to remain in private practice, Brandeis and Frankfurter attempted to get him to join the Reconstruction Finance Corporation (RFC) as its assistant general counsel the next year at the invitation of Eugene Meyer. He turned down this office also, a decision which came as a disappointment to Frankfurter. The Law School continued to make repeated requests for Friendly to join its faculty, all of which were unsuccessful.
From 1931 until 1933, John Marshall Harlan II, a senior associate at Root, Clark, was embroiled with a case representing the will 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, left a substantial fortune of $40–50 million to unknown next 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. He would recall of the case: John Harlan and I often remarked to each other that the Wendel 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.
Pan Am and Cleary, Gottlieb
Friendly was responsible for Pan 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. During World 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 a staging ground for the war effort. Friendly and Pan Am lawyer John Cobb Cooper sought to gain an advantage over the U.S. Department of War in dictating its terms—their effective efforts later came under scrutiny in a Senate investigation led by Missouri Senator Harry S. Truman, one which ultimately found no wrongdoing.
With fellow associate Leo Gottlieb, Friendly began considering leaving Root, Clark to start a new firm. The two left in 1945, forming Cleary, Gottlieb, Friendly & Cox (now Cleary Gottlieb Steen & Hamilton), and were joined by a number of the firm's associates and partners. 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. Cleary, Gottlieb's immediate success dispelled Friendly's initial financial fears amidst a declining postwar economy.
Friendly brought Pan Am and New York Telephone to the new firm. In 1946, the former appointed Friendly as its general counsel and vice president, a position he would serve in until 1959. 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 the Chrysler Building. Cleary, Gottlieb grew quickly, and it would attract high-profile clients such as Bing Crosby, Albert Einstein, the French government, and Sherman Fairchild. George W. Ball, who had joined the firm at its invitation, left to serve as United 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 as of counsel.
While working for Pan Am, Friendly proved himself to be a skilled litigator, adept in cross-examination. In a case involving the company, Trans World Airlines (TWA), and American Overseas Airlines (AOA), 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 by counsel, though Friendly refused to recant his methods. The case, which concerned Pan Am's acquisition of the AOA, also involved James M. Landis, former Dean 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 the Civil 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 the United States Court of Appeals for the Second Circuit, which in turn upheld Friendly's arguments and struck down the appeal.
The majority of Friendly's appellate litigation would be in the service of Pan Am, though in 1956 he won a New York Court of Appeals case for the New York Telephone Company against the Public Service Commission. He also successfully distinguished himself in oral argument at the Court 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 with Howard Hughes for the purchase of six Boeing jets. With Raymond Cook, Hughes' lawyer, Friendly's efforts to clear the contract ensured its survival amidst a bond issue with the U.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.
Nomination to the Second Circuit
Upon the election of President Dwight D. Eisenhower's in 1952, Friendly sought a possible judicial appointment. Decades of having been in private practice had begun to take a toll on his mental health; cases for Pan Am before the CAB grew monotonous and unsatisfying. Attorney General Herbert Brownell Jr., with whom Friendly worked with during his days at Harvard Law, began searching for potential candidates to the Court 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 in secret as a disappointed spectator.
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 the U.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.
In 1954, John Marshall Harlan II was appointed by Eisenhower to the U.S. Supreme Court to replace Justice Robert 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 to J. Edward Lumbard. Friendly lobbied friends, colleagues, and close aides—including Louis M. Loeb and State Senator Thomas C. Desmond—in the case another vacancy arose. The unexpected development of a cataract in his left eye nearly endangered his candidacy, though symptoms abated following a successful eye surgery. He was once again passed over when Judge Jerome Frank died in 1957. In spite of Frankfurter's vehement support for Friendly, Frank's seat was filled by Leonard P. Moore.
On October 23, 1957, Brownell Jr. resigned as Attorney General and was replaced by William P. Rogers, who soon received letters from Frankfurter when Judge Harold Medina announced his retirement in January 1958. The Association of the Bar of the City of New York supported Friendly's candidacy to take Medina's seat and the American Bar Association appraised him as "exceptionally well qualified." The candidates to fill the seat of Medina also included Irving 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. Frankfurter's voiced support to Minority Leader Lyndon B. Johnson, who in turn convinced Senator Thomas Dodd to send the hearing notice, ensured Friendly's confirmation on September 9.
U.S. Court of Appeals for the Second Circuit
Friendly received his commission to the Second Circuit Court of Appeals on September 10, 1959, at the age of 56. Justice John Marshall Harlan II swore him in on September 29, 1959, at the United States Courthouse (now the Thurgood Marshall United States Courthouse) in Manhattan. Friendly joined just four other active judges on the court—Charles Edward Clark, J. Edward Lumbard, Sterry R. Waterman, and Leonard P. Moore—who were all Republicans and shared similar careers in private practice as he had. He established himself as being complaisant and sensitive to his colleagues, incorporating suggestions from the other judges whenever possible.
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 in United States v. New York, New Haven & Hartford R.R. The case, which was on appeal, concerned the Interstate Commerce Commission and fell under the Expediting Act, which in turn required the case to bypass the court of appeals directly to Supreme Court. 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!"
He would continue to serve as a judge for the rest of his life, assuming senior status on April 15, 1974. He served as a member of the Judicial Conference of the United States, where he was its chief judge from 1971 to 1973, and was also a judge of the Special Railroad Court from 1974 to 1986, serving as its presiding judge from 1974 to 1986. His judicial service was terminated on March 11, 1986, due to his death.
During his tenure, Friendly would pen over 1,000 judicial opinions while remaining active as a scholarly writer. 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.
Legacy
In a ceremony following Friendly's death, then-Chief Justice Warren 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, Justice Thurgood Marshall called Friendly "a man of the law." In a letter to the editor of The New York Times following Friendly's obituary, Judge Jon 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." 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." Judge Richard 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". Akhil Amar called Friendly the greatest American judge of the 20th century. Amar also cited Friendly as a major influence on Chief Justice John Roberts.
Honors
Friendly was a member of the Harvard Board of Overseers from 1964 to 1969, and was also a member of the executive committee of the American Law Institute. He was awarded the Presidential Medal of Freedom in 1977 and the Thomas Jefferson Memorial Award in Law in 1978.
Harvard Law School has a professorship named after Friendly. Paul C. Weiler, a Canadian constitutional law scholar, held it from 1993 to 2006; William J. Stuntz, a scholar of criminal law and procedure, held it from 2006 until his death in March 2011. The professorship is currently held by Carol S. Steiker, a specialist in criminal justice policy and capital punishment. The Federal Bar Council awarded Friendly a Certificate of Distinguished Judicial Service posthumously in 1986. The Henry Friendly Medal, established by the American Law Institute, was named in memory of Friendly and endowed by his former law clerks; Justice Sandra Day O'Connor received the award in 2011.
Personal life
Friendly was a member of the Republican Party.
Family and marriage
Sophie Pfaelzer Stern, Friendly's wife, was a member of a Philadelphia Jewish family and educated at Swarthmore College and Fordham University. Following their marriage, the newly-wed couple traveled to Italy and Paris for their honeymoon. 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. As their marriage progressed, it became complicated and grew unintimate later in his life.
Work engrossed Friendly, and he had a largely estranged relationship with his children, seeing them only during the summer. 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. Joan Friendly Goodman, his second-eldest child, remembered Friendly's tentative bond: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.
Health
Friendly was a natural pessimist and demonstrated some symptoms consistent with major depressive disorder. He harbored feelings of hopelessness in addition to experiencing bouts of extreme sadness, though not to the extent of impairing his diligence.
Friendly's father, Myer, died at age 76 on December 28, 1938, in a local hospital at St. Petersburg, Florida; he was a longtime winter resident in the city. His father's death of a blood clot precipitated Friendly's lifelong fear of a stroke and concern for his own health. Friendly's wife died of cancer in 1985.
Death
Friendly died by suicide at age 82 on March 11, 1986, in his Park Avenue apartment in New York City; multiple prescription bottles were at his side. 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. His wife, the former Sophie M. Stern, had died a year earlier. They had been married for 55 years. He was survived by a son and two daughters.
Selected list of former law clerks
See also
List of law clerks of the Supreme Court of the United States (Seat 4)
Notes
References
Bibliography
Journals
External links
Merrick Garland receives the 2022 Henry J. Friendly Medal
1903 births
1986 suicides
1986 deaths
20th-century American judges
Harvard Law School alumni
Judges of the United States Court of Appeals for the Second Circuit
Law clerks of the Supreme Court of the United States
People from Elmira, New York
Lawyers from New York City
Presidential Medal of Freedom recipients
Suicides in New York City
United States court of appeals judges appointed by Dwight D. Eisenhower
People associated with Cleary Gottlieb Steen & Hamilton