Roberts and d. C. Circuit court judge Merrick Garland talk about the legacy of the lake Second Circuit appeal Appeals Court jue Henry Friendly. This is just under two hours. Good evening everyone. Im robert katzmann, chief judge of u. S. Court of appeals for the Second Circuit. I welcome each of you on behalf of my court, and where especially honored to have with us are chief justice, John G Roberts junior. [applause] today nearly 500 strong, we celebrate an american judicial giant, henry j. Friendly compuserve for 27 years on the Second Circuit court of appeals, including three years as chief judge. It is a wonderful coincidence, today is the 58th anniversary of judge friendlys appointment by president Dwight D Eisenhower to this court. Our gathering today is at the intersection of two initiatives which have engaged us for two years. The first is the one and 25th Anniversary Commemoration of the Second Circuit court of appeals chaired by circuit judge richard wesley, comprising a series of activities and projects including scholarly books and Public Events taking stock of our courts past. The second with judge victor of the seven district of new york as my cochair is justice for all courts and the community. This is a project of all the course of the Second Circuit seeking to a wide variety of Civic Education activities to bring courts closer to the communities we serve. To promote public understanding of the courts, and in courts better serve and understand the communities before us. Visit our website, www. Ca2. Mac go to learn more about this initiative and participate in it. I couldnt resist, special sense the cspan audience is with us. Of the 74 who have served as judges of our court, only two are commemorated by bronze us in our historic courtroom. These two giants of our court, learned hand and Henry Friendly are considered by many to be the two greatest judges never too absurd on Supreme Court. For all of us who sit here, they keep a watchful eye on our proceedings. I think right now they are invisible. There they are. City and back. A few words about the greatness of the men we celebrate come Henry Friendly. He began his stupendous law career in a time with Louis Brandeis for what remains to this day the highest mark ever given in the Harvard Law School. Justice Felix Frankfurter called friendly the best judge on the american scene. Judge richard poster identified him as the most powerful legal racer in american legal history. Justice Sandra Day Oconnor observed when we are looking for a court of appeals decision for use as authority we look first for opinions of Henry Friendly. And Justice Thurgood marshall quipping on the conventional Second Circuit wisdom that one should quote learned but followed guts said that for him the rule would always be quote friendly and follow friendly. His productivity on this court was simply staggering. He wrote 1056 signed public opinion. He was producing 20 more opinions than the average production of his fellow active judges. His opinions clarified roughly every area of the law he touched to pick in addition to run the time of this judgeship he wrote scholarly articles, making seminal contributions to our understanding of federal jurisdiction, administrative law, judicial discretion, the commonlaw process in the federal courts and criminal law. It is a measure of the respect shown by the Supreme Court and other courts for friendly rulings that have been cited as precedent with greater frequency than those of any other judge the low the Supreme Court with the exception of learned hand who as a circuit judge sat ten n more years than judge friendly. In recognition of his greatness, president gerald ford awarded judge friendly the president ial medal of freedom, our nations highest civilian honor. Today, as we reflect on judge friendlys greatness, we are so happy to have with us more than two dozen family members, including his daughters, john goodman and ellen simon, and numerous of his grandchildren and greatgrandchildren. We are also joined by an Outstanding Group of the judges clerks who are very grateful to i refine burke for helping together that group. Our panel this evening is a stellar assemblage of friendly law clerks and the Second Circuit colleague here we thank them most warmly. The friendly clerks with years of work ship our chief justice roberts, 19791980. Chief judge Merrick Garland of the d. C. Circuit, 19771978. Judge Raymond Randolph of the d. C. Circuit, 19691970. Seven district bankruptcy judge martin glenn, 19711972. Professor Ruth Wedgwood of Johns Hopkins university, 19761977. And frederick a dangerous, partner in the law firm, 1932 19321973. The friendly colleague panelists is our superb john newman who joined friendly a as a judge in this court in 1979 and continues to serve as a model for all of us. A special word of appreciation is due to our moderator, the brilliant pierre leval come himself a former friendly law clerk, 19631954 who with his characteristic meticulousness and imagination has shaped todays program from the very start. And if i remember correctly, he was awarded the henry j friendly metal of the american law institute, a rarely given recognition. Without further ado, i turn the proceedings over to judge wesley who is so skillfully led this years 120 fifth anniversary celebration. Judge wesley. [applause] i have to say, ive been on the bench now 30 years and this is most intimidated ive been in a courtroom in 30 years. [laughing] that murderers row up there. A little nervous, mr. Chief justice, i had to tell you the truth. Thank you, chief judge katzman for your kind words. Its really hard to believe that our one and 25th Anniversary Committee held its first meeting on october 1 of 2014, over two years ago to begin the planning of a series of programs and publications and events to commemorate this, the 125th anniversary of our court and all the Circuit Court and the United States, and to celebrate its rich history of judges and its jurisprudence. Our committee of judges, lawyers, academics, Court Executives have been hard at work plan a yearlong series of events and publications that would tell the story of this great court as reflected in its jurisprudence, its impact on the culture, and economic climate of our nation and the times and the lives of our judges who have labored here. Todays program is the fourth in a series of programs planned by the committee, and executed through the hard work of our court family and friends of the court. In the ensuing months, our court will continue to commemorate its 125th anniversary with reenactments of famous appeals heard by our court which was earlier snowed out. Were going to go for it again later in the year when the snow prospects are not so good. Memorable appeal delivered by a most distinguished scholar, a panel of judges and lawyers who will explore the circuit relationship with the state high courts, by our state high courts cousins and conclude the anniversary on september 27 with our beloved circuit justice, Ruth Bader Ginsburg in residence. A copy of the calendar is available in the main lobby or on our Court Website which judge katzmann so grace is already provided you with. As i mentioned our court commissioned to major publications in conjunction with the one and 25th anniversary for our commemoration through cornell and fordham law schools and their longer use. The fordham law review published a volume last october containing seven articles i will note attorneys, and dean Matthew Deller along with several student notes on areas of jurisprudence in which this court has distinguished itself over the past 125 years the courcourt will review cornelw review which i am a graduate of course of law School Publish a biographical anthology of all the justices with sat on our court since its secession and eight united way. Tonight i am pleased to announce to you that at the suggestion of our chief judge, the cornell universituniversity press has nd to publish a biographical anthology of our court originally published last fall by the cornell law review. This book of second biology is is now available for sale through the Cornell University website and is solely responsibility of the Cornell University press. Todays program focuses on a distinguished member of our court, a brilliant jurist who played a vital role in the development of our courts jurisprudence over several tumultuous decades in our nations history. From 19591986. After attending Harvard College and law school, he clerks for associate justice Louis Brandeis in 19271920 and he turned and offered to teach at harvard and instead into private practice where in 1946 he founded the law firm now known as clearly and hamilton. Westerly partner, he served as Vice President and general counsel of pai pan am, the premr airline of the day. He must have been a very, very busy fellow. Henry friendly had a birds eye view some of the most contentious litigation in our court over the next three decades. From the pentagon papers to the polaroid litigation Henry Friendly issued over 1000 opinions and bob mentioned on cases that shape our commercial criminal and constitutional jurisprudence. I have to tell you a brief aside. As many of you know i was in a state lawyer, judge for many, many years and left to come to the Second Circuit member earlyy on i had a trademark case, and the breeze, talk about the poll the right touch of what other polaroid factory. I read friend and a soon learned what they were. According to david, his margaret, friend about 20 more opinions as bob mentioned also and is active colleagues. One drink where you and i shape up, chief, with regard to current crew, where we are standing in that 20 . I dont know, i dont think i do so whether his legacy endures to the colleagues who served with him and the law clerks whom he tutored, many of whom are with us today and were so grateful for the families present here and that the former law clerks. Tonight we will hear from several of those who had the privilege to work with him. His former loss clerks including the chief justice of the United States Supreme Court. Im certain this is going to be a memorable two hours for our painless a new one of the great judges in the Second Circuit. And leading the discussion as her own pierre leval, a former Henry Friendly lockwood and it is rumored, it is rumored one of the favorite law clerks of the late judge friendly. That does not come from judge leval i might add. [laughing] hes a graduate of Harvard Law School picky clerk for judge from after graduating from law school and served as the sissy nye states attorney in the Southern District as an assistant d. A. In the office of robert morgenthaler, the legendary new York District street and as a judge in the Southern District before salvation to the court in 1993. I must confess an exceptional fondness to judge leval because it was his declaration of senior status in the fall of 2002 the ultimate lead to my nomination to the Second Circuit and the wonders of article iii of the constitution of the United States. For that, i thank you. On behalf of the court i want to thank you for helping us to plan this event and for all your assistance in covering what seemed to be endless challenges we face in making todays program a reality. Ladies and gentlemen, i am pleased to give you the honorable pierre leval who will introduce our distinguished panel and will serve as moderator of todays panel. Judge leval. [applause] thank you, bob and dick, for those lovely words. This evening we celebrate one of the most remarkable jurists ever to wear the robe. Two months ago in this courtroom we celebrated another great features, Justice Thurgood marshall, whose favorite entertainment we were told was to go into his Clerks Office and tell dirty jokes. But great jurists are not all alike. I think i was [laughing] i am speculating though i would be safe in guessing that in his nearly 30 years of judging in this building never once did Henry Friendly go into his Clerks Office to tell dirty jokes or even clean ones. [laughing] rarely with judge friendly stray from the concentration on his work and then only briefly from reflections on say xenophon or beethoven. Writing opinions he would sit at his desk surrounded by the briefs and appendices which after quick study he knew pretty much cold, writing longhand, going at the same speed as if he were copying a previously prepared text, which he was. Because the entire opinion with all organized and spelled out in his head here and in this fashion he produced perfect opinions as first drafts. Most of them completed at a single sitting. Friendly was a phenomenon rarely encountered, a bona fide genius. That word is tossed around a lot. This was a real genius. In the field of law ive never encountered another person whose intellectual power, scope and understanding of law were in the same league, and he did not expect to. He carried virtually all of law in his head with a clear immediately accessible understanding of how it all fits together in works together. And his mind worked with the speed of computer circuitry. That is to say, on the Computers Good days. [laughing] he had no need for a clerk. Being his clerk was in some ways a very, very easy job, but it was not necessarily an emotionally easy job. Judge was gruff, impatient, have little tolerance for imperfection, and i like many of his clerks, those not fortified by very strong selfconfidence pass and high state of anxiety. It was rumored he written on a memo prepared by a clerk or maybe it was an associate at his law firm in britain and evaluation in terms of early derived from samuel johnson. This memo, as much that is good and as much of that is new, what is good is not new and what is new is not good. [laughing] when a clerk propose an idea that the judge didnt care for, his response when Something Like [inaudible] [laughing] and you knew that the subject was closed. I can tell you i heard a number of those. On the other hand, nothing made them happier than when a clerk identified and imperfection in the judges reasoning or suggested something that the judge considered a significant improvement of his analysis. He lit up in a radical of happiness pick interested all the implications of the suggestion. Instantly and evade the fix in minutes with his warm, suffused by this globe happiness. To tell you about the judge denied we have an amazing panel. We are incredibly grateful to them. The panel is unusual not only because of its astonishing quality but also because of its specialized Vantage Point on the subject. Each member of the panel new judge friendly to an intimate relationship in the workings of the Second Circuit. Either a as a clerk or a colleague. Accordingly, the portrait we will present to you tonight is not going to be an academic sort of evaluation. It will be an intimate portrait. I digress briefly for a moment to say that we profoundly missed having on this panel First Circuit judge michael whose health prevents them from being here with us. In the clerk family we recognize mike as the judges alltime favorite clerk. He discussed the classics of literature with the judge as an equal turkey often accompanied the judge and mrs. Friendly in foreign travel, inc. During the judges in patients if you got a little lost trying to find a quaint Little Village in in the late country. In short he was like a son to the judge. Mike has written a good deal about the friendly opinions, his duke law journal article friendly j dissenting is in the materials posted on the courts website. With handles of this distinction the best service i can win is o stop talking and let them recount their intimate reflections of the great judge Henry Friendly. Ive asked questions addressed to each panels individually might invite other panelists to offer comment or debate at the conclusion of an answer. So im going to start with Merrick Garland merrick, what was it like being the judges clerk, and by the way, how did you get the friendly clerkship . Well, i dont know how i got it but i know how chief justice got his. [laughing] as youre welcome. As you have heard, judge friendly was very loyal harvard alum and he always had the harvard clerk. And in my yea youth i was the harvard clerk and he said, call a route at harvard find out whos the best prospect for my law clerk for the next year. And i called around and there are the results sitting right next to me. This does that mean that im responsible for the chief justice of clerkship. Because the pattern mustve continued before the period so todd who clerk to use before me is responsible for me, so by the transit property [inaudible] responsible for me. The clerkship itself, i was a little bit later than pierre anything the judge had mellowed by then. We had a lot of terrifying stories of how he would treat us when we got there. Im happy to say none of them came true and dont think it was because we were particularly more able. In our case he was austere and distant, but he was never mean or not nice to us. We had quite a number of legends about him, about how he would get terribly angry if Different Things happen. It turned out those things never came true and the lessons were not even right. For example, he was we were told it was a stickler for perfect citation. We need to memorize the blue book and make sure every thing was right and that there was a rumor that somebody had been fired who it failed to follow appropriate blue book form. So having been a properly scared by that can once when the judge sent out an opinion of his for me to cite check, i corrected most of his citation because they were in the wrong form. He called me into his office, and he goes, come over here. [laughing] i go around to the back where he is sitting. He pulls open his center drawer, picks up a little pamphlet pick a mustve been more than 15 pages. On it it says, a uniform system of citation not the first edition, that the second edition, not the 20th edition. Henry j. Friendly, president , harvard law. [laughing] he said, i think i deserve to be able to decide my own citation form. So that was it for that one. [laughing] i dont think i had to correct anything after that. Likewise, we used to stuff his briefs into a revolving bookcase come into these little cardboard boxes which at the time were used for magazines. Each one capable of feeding eight and half by 11 breeze. We had quite a number of materials in the legal size. Everything got scrunched into these. And one day i asked his secretary, why do we just get bigger boxes or a different brief or a different bookcase . She said, the judge likes things the way they are. [laughing] fine, fine. About five days later, he has been talking across the hall with judge waterman. He comes rushing into our chambers boiling mad and he goes, how come judge waterman has those great big plastic boxes . [laughing] so we therefore got him the plastic boxes and get rid of the rotating bookcase, and that todd is that hes legends about the judge were not true. But what was true is what pierre was talking about. He was an intellectual giant and he made every day into an intellectual, maybe i would say jousting between he and the clerk. He loved us to disagree with him, which may be the most important thing we could do for him was to point out something might have been wrong. We did not have any bench memos. For Current Court you know what that means. Everything was oral. We would come in and speak to them. Each of us would read all the briefs. He would be the case. We would read the case of. He would read the briefs and then we would be called in, with the secretary to take dictation to the first thing he would ask is, what do you think . I normal inclination would be well, what did you think . [laughing] this was not permitted so we clearly wanted to know what we thought. Once he started writing after he had gotten the opinion assignment, i know why he was able to do what pierre said, which is to write 1000 opinions. Its not just that he wrote at one sitting. He never took the pan off the paper. There is in this case i wish i had been warned. We used to get buzzed when he wanted us because that was the technology of the day. So without warning there was so maybe a bus at your desk. You would jump an inch above your seat. That meant you were to go into his chambers. One day i got the bus. I go into his chambers and there he is one and out like this with a pen in it, and one hand writing. Im staring, i cant forget what he wants. So i take the pan from him and he goes like this, so i give him a note in antiprobably switches hands and start writing. So it is very much like the old days on the Television Shows with the nurse in the surgeon at the surgeon, the surgeon puts out his hand for the scalpel, slaps them into sand and he never paused. He just kept on writing. Starting in 1979 to put it into perspective. After arguing before him many times, as u. S. Attorney and a District Court judge being row viewed by him, i became his colleague, i think its fair to say with two feelings, awe and trepidation. Mostly awe. It was a full career a full year before i could call him henry. Its not that he was remote. In fact, he could not have been more kind nor welcoming to a young and junior colleague. Observing on the bench, i would say he was scrupulously fair, a tad gruff on occasion, but never hostile. But it was after the argument that you came to appreciate what judge friendly was as a colleague. In those days, the practice among the judges was quite different, the decisionmaking process quite different than it is today to my regret. After the argument, we would not just discuss the case as a panel. We could go back to the chambers and each judge would set forth a memo, not just a vote, but reasoning and they would run two pages, three pages. We would send those around and we were almost religious about it. If the other judges memo came in before you sent yours out, you didnt read it. So, all of us were sending out our views to the other two before there was any joint deliberation and then we would meet at the end of the week with the benefit of our expressed views and easily proceed from there, vote, sign the opinions and move on. Now, his memos were the first indication i have of what this judge was about because they were quite different than anybody elses memos. They were not just better, they were inif i infinitely better. And they were not just two or three pages, they were 17 pages with citations which judge garland or his successor supplied sufficient number of pens so the 17 pages could be produced without at slightest interruption. They were just marvels to read. They displayed all of the attributes in memo form that would later come to distinguish his opinions. They revealed his technical skills. A prodigious memory for the law and the record in that case. Re precise use of language. He was not terse, but he could turn a phrase if he wished to. One of my favorites itt against ven cap where he described the 1790 alien tort statute it was, he wrote, i quote, a kind of legal low, no one seems to know whence it came. How many judges turn out a phrase like that, i ask you . But more than skills, what made his memos and the opinions that followed so extraordinary is one salient attribute, they brilliantly illuminated and made coherent every single one of the many fields of law in which he wrote. I cannot say that of any other judge. It was a great privilege of my life to have served with judge friendly. Chief justice roberts, so what made Henry Friendly a great judge . I would say it was how gentle he was with his clerks. [laughte [laughter] i really think there is a perhaps a generational divide. I second merricks views entirely. We were terrified by the stories about the judge, but nothing about the judge was terrifying in the least. The stories were terrifying. I remember one time where the story that terrified me. My coclerk and i went in, i forget why we were there, but to visit with the judge about something and he would use on a sunny day those little strips of plastic you would insert inside your glasses so they would become sunglasses and he had them he still had them on so he discussed with us what he wanted and then he said, oh, one of you call building, the lights are out. [laughte [laughter]. And we walked out and he said, im not going to tell him his sunglasses are on, and said im not going to tell them. So eventually secretary, pat, went in and told him he had his sun glass things on. One other time he might have been terrified if he had a mind who, but wasnt. It was a friday, i desperately wanted to do for whatever i was doing, the judge was still there because the judge was there. And i was prepared to dash out and he took the judges elevator, i was out like a bolt and jumped on the regular elevator. The judges elevator must have stopped at a couple of floors and mine didnt so we emerged in the lobby roughly the same time, and i dont know if the judge was just befuddled by the fact hed just seen me upstairs, and then downstairs, or paused and i think that this was something best not discussed. And sort of just walked by and i walked by and that was it. But, i personally didnt find him terrifying at all. Now, what made him a great judge . First of all, he was a great lawyer. I think people lose sight of that fact because he was such a great judge, you know, founder of one of the citys great law firms. General counsel at pan am and i mean, at the time pan am, i dont know what the equivalent, sort of cutting edge, the big company, whether it was microsoft or something else, that was no small role and certainly classified as a great academic. He obviously wasnt a professor or teacher, but his writings were more imposing and significant than most academic writings in the law are. So, and of course, just the native brilliance. He brought a lot to the table in terms of being a judge. His greatness, i bet if we took a poll here and out there, what was his area of specialty, could easily say was administrative law, securities law, criminal procedure and jurisdiction. He was across the landscape of the law, a mark of his greatness, but i think what is significant in terms of looking at his opinions, there were no small cases cause he didnt view cases in a small way. What any one of us would have looked at as a tiny statutory interpretation case, he saw an embodiment of the distinction between frankfurters view of interpretation and that would often become part of the opinion or historical view, criminal procedure question, would learn a lot about the history of the particular amendment at issue. Things didnt stand alone. They were part of a Bigger Picture and it was, i think, as pierre mentioned, he had that in his mind and he could see where they fit into. Thats why its so rewarding when you come across the friendly opinion. You dont just leave with, oh, thats why the statute should be read that way. You get a very good understanding of how that fits in interpretive theory, if its an nlrb case, you had a look at how they saw the cases and a particular key into that. And you have remarked to me how the judge would return from the briefs that looked like mundane appeals to these decisions. Before i get to that, the thing in this room. So many memories rose in my mind. We didnt come to oral arguments unless judge friendly said it was going to be an advocate worth hearing. One thing that we were required to do was robe the judge in this room back here and then put the briefs and the appe appendices. And one day i wasnt in the courtroom, but i was told this, and a state attorney stood up and started arguing and he didnt let her get a word out, he started criticizing her for not knowing the federal rules of appellate procedures because she hadnt filed an appendix in the casement dont th case. Dont they tell you about the rules. And when she was able to, she said, judge, i did file an append appendix. The court clerk was there, he suspended the argument and started criticizing the Clerks Office and not letting danny get a word in edgewise and finally, the clerk, danny, said, but judge our papers show it was delivered to your chambers. [laughte [laughter]. So, a phone call came in from the phone down here, it was then, and said, do you have an appendix down there in such and such a case and i walked into the judges chambers and there was nothing. The revolving bookcase which he had back in 1969 was empty. And then, as i was about to turn to come back out, i saw this little piece of paper underneath the book, and lo and behold it was the appendix and i said, hey, danny, you can come and get it. He said im not getting it. [laughter] so, through those doors i walked with the document while the argument was being suspended. I had to walk all the way up and hand it. Now, you have to understand that i was told, i see bill lake clerked the year before me and had a coclerk, one thing i knew about Henry Friendly, is he fired one of his clerks the year before as bill knows, and i thought, well, this is the end of it. So, anyway, after the argument, friendly, judge friendly came in and he stopped by my Little Office there and stared at me in this gruff fashion and for some reason, i dont remember, i started laughing. [laughte [laughter]. And he joined in. And that was the end of it. [laughter] so, anyway, the other day, i was rereading an introduction and pierre and michael have written these magnificent pieces in the law reviews about Henry Friendly, but i was reading something that i dont think was wellknown, that in 1976, ed levy, a friend of his was an attorney general and a former president of the or a dean of the university of chicago law review, or law school, and he put a program on in philadelphia in 1976 celebrating the bicentennial of our freedom in this country and i looked at it and he had a very short introduction to Henry Friendly and ill just read, he said judge friendly was among those who have given to our law and its development the best the human mind has to offer. He was exactly right. And then he said this, the perceptive opinion, questions no one else has asked, the recognition of the precise point and issue, the linkage with history, the directions for the future, these are the hallmarks of judge friendlys opinions and of his essence. And i was struck by one part of that and that is the perception the perceptive opinions answering questions no one has asked. And i had not focused on that since i have been on the court. Ive been on the d. C. Circuit for 27 years now, and the fact of the matter is that during my year, judge friendly was able to answer questions that no one else had asked because he did not consider himself bound by the arguments of the attorneys that appeared before him. He felt that he had great freedom in dealing with legal issues regardless of how the cases were being argued. And you may think that that is a common attribute of judging, but, in fact, i dont think its the norm. And in the 1990s, there was a case in our circuit, in fact, i didnt sit on it, where it was a banking case and the parties were arguing back and forth with lawyers from, i think new york law firms, very prominent, about the meaning of the particular statute and the case was assigned to our former colleague, former senator from new york, jim buckley, and while he when he started working on it, he discovered something, that the statute had been repealed. And so, he wrote an opinion saying the statute had been repealed and another judge, who i will not name, dissented on the basis that it wasnt argued by the parties. [laughter] anyway, the case went to the Supreme Court, but thats another story. [laughte [laughter] speaking of our court, judge friendly wrote a letter to our esteemed colleague Harry Edwards and he said this, because judge edwards was, he was not the judge im talking about, was inquiring about judge friendlys style and he noticed that judge friendly was expanding the horizon beyond the arguments of counsel and asked about that and judge friendly said that if he saw himself bound by what the attorneys were arguing, he said he would write opinions that would say, and im quoting, he said the arguments in this case are so wide of the mark and simply choose between them, however, no one should regard this opinion as representing our view of the law. [laughte [laughter] they were there were many instances of that occurring, that practice by judge friendly during my year of clerkship. As a matter of fact, in preparation for this marvellous, conference, thank you, pierre for organizing it so magnificently. I pulled out my volume, i guess weve all got volumes of the opinions that you worked on during the year, and there were two clerks in my year and i pulled out the volume and i counted the number of opinions that were issued during or year, which from september to of 1969 to september of 1970, and i was absolutely astonished. He issued 83 opinions that year and some of them were 30 pages long or 25 pages long, and so on and so forth, and i looked at the dates, the argument and then the release date of the opinion and rarely were they more than two or three weeks, at most. And that includes the time for the other colleagues. So, to get back, and i dont think much has been made of judge friendlys work. If you look at a friendly opinion, you dont know how much of that came from stimulated by the arguments back and forth from counsel. You cant tell. The only way to do it is go back and read back the briefs you can do now in the digital age, but you couldnt during his time. Ill leave you with two examples of cases in which aspects of his judging took place during my year. The one case was it was a landlords complaint and raising civil rights because of rent stabilization or whatever it is, it was too low and there was pro se, which delighted Henry Friendly. So he took that case and its the most astounding exposition of the Civil Rights Act passed after the civil war, going on for dozens of pages and then took apart the Supreme Court jurisprudence at the time requiring or not requiring exhaustion of administrative remedies by state litigants. They could come right into federal court and you can be assured that the pro se landlord did not contribute anything to those pages. [laughter] another case that and there were many cases, but this one struck me, and when i was looking through, it was at the deportation of Carlos Gambino of the gambino mafia crime family and the deportation order came down from the Immigration Service because Carlos Gambino had been a so stowaway. In 1921 and deported in 1969. So judge friendly was dealing with the immigration statutes and one of them prohibited entry into the United States by fraud. And the question was, was an stowaway entrance by fraud . And gambinos attorneys never raised the point, never raised it, but judge friendly said, he said that well, im not going to read it, but he said that this is an important point because there have to be many families around the United States that are concerned about this and even though he didnt raise it, i think its proper to deal with it, but then he upheld the deportation, and he sent me a note, which i have, and he said, well, maim upholding the deportation and we ought to get this out soon because i want to let mr. Gambino hit the tertiary trail. And i thought that he must have been watching a lot of westerns. So, anyway, i will end on this note, and i cant because it sounds the same theme that i was trying to strike, and its from judge posners forward in the book. He said judge friendly, absolutely on point, judge friendly did not feel himself bound by the issues as framed by the lawyers and at times, he was surprisingly casual about waived or forfeited arguments. He didnt just decide interesting cases, he made interesting cases. His was that something of he was the something of a judicial buccaneer, a role not to be recommended to the average judge. Fred davis. You have spoken to me about the judge in relation to criminal proceed and constitutional protection of the accused would you tell me about that . I volunteered to pierre a, i teach a form of criminal procedure in columbia. Here is a judge who gets on the bench. We all agree the man was a genius, he really, really was and had an extraordinary career before going on the bench, but i dont think of him as having an intuitive sense of the criminal law, frankly have a hard time imagine him hanging around the house or cross examining a cop or visiting a client in jail, some of us have been known to do. Here he is on the bench and he knows a solid part of his docket is criminal stuff, how does he go about it . The first thing thats kind of obvious, early on in his judicial career he wrote an extraordinary number of these articles and you go back and read them and they really are amazing in terms of their breadth, the number of them and their depth, and their detail. I remember, someone mentioned Justice Marshal and i remember wondering into his chambers and he asked who i clerked for, i said Henry Friendly and he looked at me, he writes his own footnotes. [laughter]. Two things come out of the articles, one is sort of trivial and that is that the judge was a federalist in the madle of the second justice harlan. He went on the bench at the time when the incorporation debate was going on two or three years later, the court decided mat v ohio, griffin, the classic cases of the war in court, and one thing that offended him in those decisions was not so much the criminal decision as such, but the notion imposed on the states. He believed in the notion of the states laboratories to develop their own criminal procedures. Hess praise, to use his phrase, extended to the criminal law. You could see him writing the opinions and denying folks down there in washington, to stop before they did further damage to the constitution. The other thing that jumps out of these articles, only slightly more sophisticated i think is interesting, is that he really truly was a commonlaw lawyer. He really passionately believed that the law comes from really examining the facts and then going out there and finding out what the law in its majesty tells us and apply them to the fact. He, in fact, had an extraordinary knowledge of european continental code systems and he understood them, but one thing he didnt want to see in the criminal area was over codification. One of his articles smearingly called the bill of rights as a code of criminal procedure. In one of his argues, he takes the miranda decision and writes it as a code provision, srt of the gussying it up so its incomprehensible. Which is sort of his point. One thing that occurred to me from the judge is that theres a big difference between what he said and what he did. You read these articles that he wrote and you got a sense of someone who is pushing against what the warren court introduced into our jurisprudence, but when you look at what he actually did on the court, he was not a pro government judge. I was chief of appeals, attorneys office, and on thursday mornings when we found out who was on the panel the following week, we did not breathe easy when we heard its the judge. We knew he was going to dig deep into the record, if there was a problem there, he would find it. In my year, there were four convictions that were reversed and i went back and read them recently and from the defense point of view they were not slamdunks. There were issues that he really felt strongly about. Many of his criminal law decisions, i believe, dealt less with what happened in the search and seizure area although there were some interesting cases there, but he was particularly focused on trials and he had an ability to read a record that i had never seen before. You learn many wonderful things in law school, and you dont remember how to read a record and i remember in law school, what does the record say about this . I hadnt looked at it yet. But he would read through the record and if he felt that techly the prosecutor or the judge had not met up to standards, there would be a reversal. He understood the difference between a perfererfect trial an fair trial. If you didnt try for the perfect one, he was not in your camp. So, i think, if you look back at his impact on federal criminal jurisprudence in the criminal procedure area, you see what he wrote, but even in areas he felt strongly, he applied the law as well he should. In our year, he, with great anguish, affirmed the decision written below on a habeas, where a state Court Conviction had been invalidated by a district judge. As he noted, 13 state court judges had found a confession to be voluntary, but he felt constrained by the law and by the reasoning of judge Marvin Frankel who had written the lengthy opinion, that he had to affirm the invalidation of that. So at the end of the day, one can say that his impact on the law may be very simple in this area, and that is he really bored in on the facts and he thought long and hard about what the law was and he applied it. Now, that sounds very simple, but in my opinion, nobody did it better than he did. Your remarks on how little tolerance he had for imperfection in the work of a judge below remind me of a case where, when i was a district judge, when he reviewed my case. And my case was, it seemed to me, a really, really easy case bus it was a petition to confirm an arbitration award on one side and to overturn it on the other and the standard is so, so low. Essentially if the arbitrator got his reason for doing it from the contract of arbitration, and there was no manifest bias, you affirmed, thats what the law says. This was a Business Case and the mathematics were kind of complicated, but i didnt need to deal with mathematics because its clear it came from the contract and there was no manifest bias, so i wrote a few words saying that and confirming the arbitration award. It went up on appeal and Henry Friendly wrote an opinion, he affirmed me because i was right on the law, but a gentle expectation that i would look at this more closely and the judge had done all of this complicated mathematics revealing it in his opinion, explaining why the arbitrators decision was exactly right. I felt a little bit chided. [laughter] youve spoken to me about the judges judicial voice. Would you talk to us about that . Well, i will misuse the opening sentence as usual and i will do that, too. Let me say a few things first in preliminary opening statement. I think to clerk for Henry Friendly because in large part my father knew martin frankel, and martin was informally part of the jewish judges luncheon club. And preceded by by a year, but the judge was skeptical about yale, he didnt quite think it was a real law school where they taught anything, but policy and there are people who hold that view to this day, but not me. And he also never hired a female, and seemed arkchaiarcha think that marvin went some distance for me. En he was a lovely boss, you had to show up on time, you had to put your pedal to the floor. My best incident of that before i get to style was the wonderful copy right case we had in which assignment of the copy right for son of the chic, a tawdry romance novel at the time, was in its renewal term and the question was, could someone who made a movie from it also enjoy their renewal term and it was not quite clear, old what, 1929, i think, copy right act and i found on the day before that i i promised him memo that the full legislative history had finally been published by a commercial establishment somewhere in new jersey and my kind boyfriend, then later husband, drove out in the middle of afternoon, got it, i got it back at about 8 00 or 9 00 at night, stayed up all night paging through, there was no index and found the magic paragraph about 5 00 in the morning and wrote it up and brought it into chambers and the judge was grateful, but said in his wonderful snarly kind of loving way, glad to see youre doing a little hard work. [laughter]. Even though it was dispositive of the case. He with as a great guy. Not warm and cuddly. One of the greatest intellectual experience was him when he brought you into chambers and had you listen as he began to dictate his voting memo and if you had any dissents or quarrels or concerns about it, you were expected to chime in right then and there. And that was, i think, intellectually very good for him and very, very good for the clerks, a nice way for people to think through their positions. He was quite a man about town, also. He enjoyed the century association, went to the council on foreign relations. He loved being a doyen at Harvard University and where he went to graduate and undergraduate and a vague memory from my youth when troubles broke out about the vietnam war, he was brought out by the corporations to try to put the school back together again in a loving way and i even have some memory of maybe having talked to him though i would deny it now if i was asked, but he really took Institutional Culture and cure ration as a serious task for a person of parts. He really wasnt supposed to become a judge, you know that, because he fell in love with english legal history. He had been seduced by charles mclewane and took a year or two maybe abroad looking through english tomes and files and might well have been lured from his natural vocation. But im told and i just know this is a story, i cant find it in any book, that julian mack was dispatched by his mother or his father to bring him back to the stable and made a deal with him that you should try one year of law school and if you liked it, then fine. If he didnt, he could leave. Apparently the method of seduction was in the first year of class, something was read aloud by the professor in law french and no one know what it was except for Henry Friendly. And his english got him to the vocation. And i sometimes wondered whether he enjoyed life very much. But this was common for everybody on the Second Circuit, but the discipline of having to dictate your account of the reason why the case should come out one way or tother, i think it captured the core of the argument. There was one law clerk, forever nameless, from the year of his service threw out the pocket parts to the various preelectronic treatises and when the judge found out about that, he could be ferociously temperamental. I didnt do that, i have to say. It was precomputers, it really was reading and remembering. And i think what made him a good judge was, frankly, that he took so long to become one because what made him skillful and intuitive and knowing where the sweet spot was, with all of the years he spent in private practice. And he was very proud of built pride in his airline and a prune. You couldnt take a kid out of law school and a philosophy agree and have any results that you had with henry j friendly, a worldly man. So many people came from upstate new york who seem to have marvellous important careers, robert jackson, but he could see through facetious arguments and try to crystallize a productive results that often times led both parties to be reasonably satisfied and what was the question you asked me . What was my real topic . Something about how he voice. Oh, his voice. [laughter] well, im going to be heretical now and hate me from the grave. His essays, couldnt write better. His opinions were going to business. They were getting the job done, but he had a great capacity for knowing again what the real euclidion point was and if something with rise are fall and that was helpful to the parties and their clients. He had enough experience in the world and enough sensitivity to language that he could clarify the law in a way that many other judges would shrink from doing that he really understood that part of his task, particularly as an appellate lawyer, was it try to give guidance for the future, not by being didactic, but to try to get to the nub of what made this a distinct case. And we have relatively few judges, i think even now, who go from District Court to court of appeals, some do, but there are really few judges who have had this kind of fulsome, rich, redo redolent life in the world, diving into harvard archives, as he did. And what i would have loved to have done is publish in some form the essays that he wrote when he was a kid, to see to what extent the judge he became is foreseen in the way that he approached history. He could have been a marvellous historian. I only regret that he didnt live twice. One of the only criticisms i would ever have made of the judge, i thought at times his opinions were very hard to understand. He expected an intelligence on the part of his readers, which one rarely encounters. [laughter] and i thought they were very tough to understand at times, and mike told me that he once commented to the judge that he thought that a passage might be too difficult for readers to understand, and the judge answered, henry hart will understand it and thats what i care about. [laughter] marty glenn, youve talked to me about the admiration that the judge would tackle legal questions digging back to the origins of doctrine and mentioned a fascinating case with the innovative jack weinstein. I clerked for the judge in 1971, he was chief judge and he became entitled to a third clerk. As other people have said wed have all the briefs delivered to the chambers for a sitting week at the same time and the clerks would each prepare a third of the cases and hed prepare all of them and wed read the briefs and they seemingly made sense. Arguments based usually on more recent cases, but the judge had this ability to dissect the proper legal principles. Hed go back to First Principles. And theyd made sense to him and he would explain a line of authority, which when you looked at it after he had done it, made perfect sense, that neither of the parties had done is what ray talked about, that frequently what came out on an opinion bore very little relationship to the arguments that were made in the briefs. And an example, an example, during my clerkship year he wrote an opinion, United States versus weinstein, jack weinstein. It was brought by an attorney in the Eastern District seeking to vacate, and ordered that judge weinstein dismissed an indictment after the jury had convicted the defendant. And he entered the jury verdict. And judge friendly started his opinion this way, a conscienceous district judge had ruled on powers and responsibilities when a jury has found a defendant guilty on evidence which was spacially sufficient and the judge for well articulated reason cannot credit. This praise worthy effort has presented us with problems of no little complexity. And the defendant was represented by an excellent lawyer, nate lewin from washington d. C. And the criminal appeals act to the did not allow direct criminal did not allow an appeal by the government from this order dismissing the indictment. And that, hence, the mandamus. Lewins argument, the all rites act argued for aid of appellate jurisdiction, and there wouldnt be any abelt appellate jurisdiction. The governments argument was okay, but not particularly enlightening, so what did the judge do . In one sitting, with his encyclopedic memory, he looks at the all rites act going back to the judiciary act of 1879, marbury versus madison in 1903, he carried this forward with maepts to the statute in 1878, 1911, codification 1948, its laid out and he would do this with his encyclopedic memory. Occasionally hed pull the book off the shelf knowing exactly where he would find it and when he was done, when he was done with this issue of does the court have appellate jurisdiction, he concluded that, yes, the Second Circuit it. But then he had to decide, we thus reach the question judge weinstein wished us to consider, namely, whether the judge has power to terminate a criminal proceeding in favor of the accused even though hes bound by applicable rules of law to enter a judgment of conviction and a verdict of guilty . What did he do then . He went back to Early English history and looked at the power of the trial judge in england. He went through the adoption of the federal rules of criminal procedure and he concluded at the end that a Federal District judge did know the have the power to do what judge weinstein done in the case. Therefore, he vacated the order, but he sent back for a new trial. Judge wieinstein didnt want to do the trial again, but he sent it back for trial. It was an eyeopener, the briefs barely touched on these issues and he could go from his encyclopedic memory and pull out these principles and he would do it over and over in so many opinions. Yes, there were straightforward opinions that didnt require him to do that, but some of the opinions ive read of his over time have gone back to First Principles, tracing legislative history back many, many years and it was an incredible capacity. And i know, you know, people will raise the issue of whether judge should go outside the record or the arguments. I think he felt more than anything, what he was required to do was reach the correct decision. He was a judge on a preceden precedenceal court and he didnt want to write an opinion that could be ruled on and judges. And both of you looked at how he reasoned and how his example influenced you in your amazing careers. Ill ask you both that, starting with the chief justice. Well, im not sure that i agree with ruth about the eloquence of the judges opinions. Weve heard a lot about, in writing outside the lawyers briefs and going back it First Principles and i thought most of them were pretty eloquent. And one way he would write something, and i think folks who read his opinions would agree, he would walk you through the reasoning process. It wasnt, you know, here is this and here is this, it was how he thought about it and he would start, i think, as marty suggests, often with First Principles, but even in a mundane case he would say, okay, this is what, you know, the statute says and it incorporates this word and that leads to you this issue and thats a problem, but here is how you you know, we get around that problem and it comes to this other area and he doesnt sort of, you know, sweep the chess pieces off the board. When he gets to a real impediment to his course of reasoning, he gives it its due and then explains exactly how he thinks that does not impede, you know, what the his analysis is. So, i dont think theyre hard to follow, i think quite the contrary hes almost taking you by the hand and leading you along the trail and you feel a degree of satisfaction when you get to the end because youve replicated his thought process, so, i dont know, merrick, what do you think . Well, i completely agree with you on the stream of consciousness aspect but i have a different explanation. My explanation is technology. So, back in the day we didnt have word processors. Everything had to be written out. He wrote everything out by hand. Then the secretary would type it up triple space, then it would come back to us it make comments on, and then if he liked what we said, he would cut and paste, literally cut and paste for those of you who dont know what that means. [laughter]. Go back to it and the secretary would do one more and that was it. Unlike the way i write, which is to think about an outline, write the whole thing out and cut and paste on the computer, and reorganize it, he couldnt do that in any efficient way. He actually showed you the quality of his mind, just like you say, he wrote as he was thinking. This is the argument and this is why its wrong. Maybe here is a reason why its not wrong, but maybe the reason why its not wrong is wrong, and he would go on because thats the way it went. And i never saw an outline that he had ever. And i think its and i only came to this when daves book came out and reading his opinions and compared it to our own and ones on our own courts. Our courts are much more organized. Im not sure theyre better and certainly not more eloquent, but more organized and i attribute this to having to write everything out by hand and having to have a secretary type everything and not being able to reorganize in the word processor. Comment . Yes, you know, what youve said, john and merrick, struck a chord with me because there are scientific studies how about the areas of the brain that are engaged by Cursive Writing as opposed to hitting a computer and the creativity element of composition, is, at least according to some scientific studies, trigger today a far greater extent by the pen across the paper. As a result of that, in a lot of the lower schools and grade schools now that ive been reading that theyre beginning to teach Cursive Writing again and i wonder whether, you know, part of that is part of that creativity is reflected in Henry Friendlys opinions because they were all done in a cursive hand. Do you have more . Well, i would say ive seen the chief justice when he was a judge in chambers doing his handwriting, writing it out by hand and i write my stuff out on computer. I think that both of us think by writing and i think thats what judge friendly did. He would evaluate the logic of an argument by writing it out and i remember him once saying, well, this just wont write, this just wont write, which meant that this was a result that the panel had decided on, that he had thought was correct, but as he was doing the writing, he found out that the logical connections werent there. And this is deeply affected my own style of judging. I have to write it out myself, and if it doesnt write, i know theres something wrong with the logic. And one comment, i think that also, i assume the Second Circuit still does this, i hope they do, one of the most valuable things was to have the member and the written, very short memorandums after argument argument where, indeed, the judge was asking you to sit with him for half an hour, hour, to think through the argument and see if it worked well, and then sent it around to colleagues in a polite and genteel way to point out the possible arguments. And that was grabbing the heart of the artichoke, instead of law endless law review ventures was a key to sharp and precise jurisprudence. Ruth, you have an inclination to talk about the name, and some of the judges finest opinions and what made him so special. I have two and im allowed to to have favorites, im going to talk about the railroad case a little bit, if i may. The judge loved. He liked stuff. He was a very upstate new york kind of kid. He liked things that worked and things that went round and so, when we caught the railroad case, the question of what do you do if the penn central is going out of business, how do you conceive of its value if its going to be taken over by conrail or some portion by amtrak, how do you think about the valuation of the business thats never made any money for the last 25 years and he loved this stuff. So should it be reproduction value, how much should it cost to rebuild the railroad given the crowded venue in which a track would now have to be laid, or should it be liquidation value, which was nada, it was nothing, scrap iron and scrap wooden rails and cross ties, or should you think of it as some other fashion. If youd had a charity, you wouldnt value a charity by its actual stream of income, youd value it by its social virtue. And then he re i loved edwards who couldnt be here tonight because of shubot and there was an oral argument, a funny joke, an oral argument in the biggest court in washington, the court of claims the one down by the white house, and the judge always had his notes up on the on the table and i think that often times they were on kind of a slanted pedestal. And he summons me up and murk was too scared to go and he said, where are my notes . I said judge, i put them on table. Theyre not here. I went back to look for the notes, they werent there. And i came back and wisdom is here and Henry Friendly is there and Ross Thompson is there and i stand waiting to be recognized and dismissed and i looked down, there are the notes on the floor, on his foot rest, beneath his feet. So as a good clerk should, i crawl under the bench and gently extricate the notes and place them in front of the judge and the judge was such a marvellous man and knew his place so he never said thank you, but i think that secretly he was happy and he loved the valuation process. Because really, you know, it took us this was going to be something that was ultimately intuitive, how much does it cost to reconstruct the eastern seaboard and so people trusted him. So there were 300 lawyers who came to the oral argument had the sense that his experience in business, which many judges would not have had, made what he came up with a reasonable exposition. In that case, really having lived a life made him a much better judge and certainly a judge with the extraordinary stature you would need to accept a rather a result like that. Martin glenn, what about statutory interpretation and how does it compare to contemporary notes of tech ulism, attention of statutory purpose, et cetera . I have a hard time pigeonholing judge friendly with the current jargon for statutory construction. Although the Supreme Court has not spoken directly to the point we can construe its decision of its belief, of the two readings, neither of which a wholey satisfactory, would have been brought to the attention. I think he started with the recognition, figuring out what the statute means could be a very difficult process. Plain language wouldnt necessarily give you an answer. The legislative history, whether its deciding or not, ought to be examined. Ill give you one opinion, a bankruptcy judge, one of the cases thats recently cited stre Supreme Court decision, versus widing pools. And it got to the Supreme Court because judge friendly wrote for the Second Circuit. He started apologetic. Judge friendly started his opinion by saying, we think the issue is a little more difficult than they did, and then if youre saying theyre illegal. It seemed he recognized that different statutes called for different approaches. I dont know whether weve gone backwards from there today. And fred davis, some critics of the judiciary claimed that judges will reach whatever decision they favor by manipulating precedent and doctrine. Is that criticism applicable to judge friendly . Interesting question, not an easy one. Let me respond to it by doing something unusual. Im going to read to you two very brief description, i think, capture the judges view on your question, pierre. Theyre written 30 years apart and one of thing, i think is quite wonderful. The other is much less so, and youre asking why i would read it to you. I start with a less adequate one, one i wrote, several years ago i posted an article about the judge, it purported to be before the book, but it was transparently my view. It was behind the judges desk, there was a black and white photograph of justice brandeis. On it the justice inskribd, to Henry Friendly, a born lawyer. And while she is may underestimate the judges achievement he was born with prodigious skills and became a lawyer through hard work, passion, high degree of curiosity, relentless focus and to my mind, an unwavering almost brutal insistence on intellectual honesty and more prose has been written, but i stand behind that as what he meant to me. I was put to shame a few weeks ago when i was reading through articles and came across a much better description. And it was written by henry j friendly, not written by himself. It was an article by justice brandeis. At the end of the article, this is now judge friendly writing about brandeis. From my summation i go to the great words of the gospel according to john, the truth shall make you free. When he wrote that he was writing about someone else. You read the passion with which he wrote it. I can only blame he was stating his own as he viewed the law. It carries both he and i use the words relentless. I swear to god i didnt copy. I have not even read his article. He was serious about early in his article he said about brandeis, his opinions have a relentless quality, no court is asked and then given. As i think your question suggests, pierre, theres criticisms about the judge that he and fact wanted to reach results, he would in certain circumstances sort of find the facts necessary to reach them. I dont buy it. I am not one of those who thinks the judge suffered from infallibility. There were times when we might talk about them during the break but in terms of fax, i saw it when it is quick and i see in his opinions. He had this relentless intellectual curiosity to find out something very simple. And that is he could like nobody else i know delve into an intellectual problem and really do his best to get to the bottom of it. To my mind he was remarkably free of what psychologists call confirmation bias, namely, something many of us suffer from, all of us do when we learn facts we get more value to the ones that conform to what we already think or belief. He read faxed because he wanted to find out what happened. Some of the cases we worked on we would start working on, i dont you really knew her he would only come out until he got to the bottom of it. In response to your question, pierre, this attitude apply to his view of the law. Im going to put on the table a word about judge friendly that youre all going to find bizarre, i think the only person to use his word to describe them, that is humility. Many people viewed them as arrogant, and he didnt suffer. He had to put up with all of us and we all remember some of the reactions we got when we didnt reach his level. But he do the law as his master in that he was its servant. And again this may sound trivial but you really saw the year we cook for an engine talked about what is appropriate for him to go out and find out what the law was even if not argued to them. There are cases where there was precedent cited to him when he went out and found the facts in an earlier case even if it was in the opinion. Its part of his relentless quality because he did not want to file something that was president ial and less reflected what the law was. And i truly believe that he did not think of himself as molding the law or changing it. You want to thought to be true to itself. And that he went every length he could to find out what it was. Again as i said before im noticing is equal in that. John newman, in addition to sitting with the judge, you are one of the few who appear before them as counsel. Do you have some stories about that . Well, it was a great privilege to appear before them as well as to sit with him. Two or three quick vignettes standout. One morning when i was entering as u. S. Attorney to defend the government, and one morning the calendar was entirely criminal cases. And so the seats where you are which is loaded with a large group of assistant u. S. Attorneys in the Southern District. And early on in my argument the judge leaned forward, knowing full well the answer, and asked by the way, who tried this case for the government . And i said, i did, your honor. And he said, oh, a u. S. Attorney who tries his own cases. [laughing] and another day i got the needle i was defending, again for the government, an injunction issued by the District Court to restrict posttrial questioning of jurors by lawyers without the permission of the court. And as appellate lawyers general do you think very hard about that first sentence youre going to begin your argument with, and so after a lot of thought the previous evening i began by saying, may it please the court. This appeal presents this court with a clear opportunity to set forth the standards for posttrial interrogation of jurors. He said, i take it that is an opportunity we are free to decline. [laughing] bubut i think my most astonishing result of argument occurred after an argument, of not a terribly exciting criminal appeal that had two bases on which i thought the conviction could be affirmed. And after arguing it i was back in hartford and he got a call from the Solicitor Generals Office. He said, you know, theres that related case from the southern circuit that has your issue. I said, yes, i know that. And the office said well, we have just confessed error in the seventh circuit case, and you need to bring it to the attention of the Second Circuit right away. I said, does your case of the other issue . And there was some byplay at the other end of the office and sheepishly he came back and he said, yeah, i guess it does but i said you did need to confess error, did you . He said i guess we did. But he said nevermind, you must call the panel immediately. It would be embarrassing if we confess error in the seventh circuit. Judge friendly had resided, so i called him up. Pretty unusual circumstance, ill admit, but i called him up and i said judge, the Solicitor Generals Office has just requested i tell you they have confessed error in the seventh circuit. His reply astonished me turkey said, youre not going to throw in the towel in this one, are you . [laughing] i said, judge, i have two tiles found that only throwing in one of them. He said, get me a memo right away, and happily, my point of view he affirmed on the other ground. Ray, we talked about the contentious time of the vietnam war, the draft cases and Conscientious Objectors here enjoyed a particular interest in the case of Vincent Francis magee. Do you want to tell about that . The story im about to tell you illustrates a facet of Henry Friendly that very few people have that much of a glimpse of in practicing law before him or even with him. And that is his humanity and his empathy, which she separated, he had the ability to do that turkey separated that from his decisionmaking in legal cases. So when i started my clerkship in september 1969, it was the height of the vietnam war and Selective Service cases were inundating the courts. We had a case involving Vincent Francis magee. He was a divinity student as i recall of the Union Theological seminary, and claimed to be a Conscientious Objector. It was clear on the record indicates that indeed it was, but the Selective Service board classified in one a which means eligible immediately for induction. And magee did not appeal. So he was called up and he refused to be inducted, claiming he was a conscience is objector, and he was tried and convicted in the seven district, and sentenced to two years in prison. He appealed, and the question of appeal was whether he had to exhaust his remedies within the Selective Service system before he could claim Conscientious Objector status. And so as judge garlands mentioned, the case was argued, and i walked into chambers, and this is my second week i think with the judge picky set, what do you think . And i said, i thought the exhaustion of Administrative Administration doctrine in this case was too harsh. And if i was going to come at me over the desk. He said, harsh . Dont tell me harsh. I want your legal analysis. Anyway, he assigned the case to judge feinberg who was on board with the exhaustion doctrine. A month went by, and then two, three, all the winter passed. I had completely forgotten about the case. And then in the spring a memo came in from judge feinberg, and the memo said that after working on this case all winter he had decided to change his vote because he thought quote, application of the exhaustion doctrine in this criminal case was too harsh. [laughing] so i proudly took the memo into judge friendly, put it on his desk and he said, ill write it. And he did. It was two to one and the case went up to the Supreme Court, and the Supreme Court took the case and affirmed in an opinion by Justice Marshall. All the time mr. Mcgee was out on bail. The case went back your mcgee filed a motion for resentencing before judge murphy. Remember judge murphy . A walrus of a man. And murphy denied and mickey appealed again for the Second Circuit in the spring of 1972, and thats when the phone calls started coming in. By then id left the judge and i was an assistant to the solicitor general. And the reason i wound up as an aside in the Solicitor Generals Office is simply because judge friendly said what do you want to do next year . I said, i dont know. He said why did you argue cases in the Supreme Court . I said how about going to to do that . He said i will call and i got the job. Anyway, so he called me and the first call he said, remember that mickey case . I said i remember it well. He said its a back. And he said judge murphy refused to reduce the twoyear sentence. I dont know what im going to do. So cant you talk some sense into the Criminal Division . This guy has already served nine months in prison now. And then later started coming in, and i, to me, as if i had some authority over any of this as an assistant to the solicitor. And i got these letters, and one of them says, i do wish you could get the Criminal Division either to relate or ff that possible to intervene with the parole board. This then its only been in prison for ten months and i certainly dont want to let any longer imprisonment on my conscience. And nothing happened. Then i got another letter at another letter, and finally i decided i would go into dean griswold, the former dean of Harvard Law School at the solicitor general and i told him the whole story. The next day, to his credit, dean griswold convened the parole board in the Solicitor Generals Office. [laughing] and in a flash they had already denied parole to magee. In a flash they changed their mind and ordered him released, released on june 1. And on june 1 of 1972 i received this letter by the way, griswold swore me to secrecy and i never, i never told judge friendly what had happened. It says dear ray, we received the word yesterday from the American Civil Liberties union that the parole board had reconsidered its action and that granted magee parole effective today. This contributes greatly to my peace of mind. If you had a hand in this, im grateful. And then on june 7, mickey appeared in the court, in this courtroom, and David Duerson found magee and interviewed him. Magee tells this story that friendly was presiding and you look down at magee and he said, you are free to go. Your case is over. That aspect of Henry Friendly is i think so telling because he kept it from what the law was. He separated it out, which i thought was a remarkable, remarkable thing. John, we had a couple of minutes. You want to tell a little bit about the Henry Friendly last that sits over there for which you are responsible . Sure. Bust. First of all, you should know they are not normally there. They are normally, the hand bust is on that side of the doorway and the friendly bust is facing opposite here, and ill tell you why in just a moment. I had always thought, arguing before this court and sitting with it, that it was a terrible shame that there was this one solitary bust of learned hand in the courtroom, and the court that at two joints of the law, not one. So after the judges of death i waited what i thought was a respectful interval, and talk to 45 judges. I had a plot and i talked to four or five i thought would be white supportive, and they readily agreed yes, it would be marvelous to have a bust of friendly in the courtroom with learned hand. Chief judge was irving coffman. [laughing] i cant imagine why you are laughing. [laughing] so i went to judge calvin and i said judge, theres some interest in having a bust of Henry Friendly in the courtroom. He said i dont think thats a good idea at all. So i said, well, you know, judge feinberg is forward. Judge oakes is for. Judge mansfield is for it. And he paused and i could see or hear figuratively the wheels turning. Yes, he said, that would be a good idea, he said, then we could do gus and Charlie Clark and wonderful idea. It was even some failed suggestion to himself, i said, well judge, you understand they are only talking about a posthumous installation. [laughing] so realizing i had the votes, he said fine. And then we got a sculptor, pierre, so the recommended him or maybe pick tim, i dont know, the best named sculptor in the world, Elliott A Goldfinger who did the sculpting and it was, the problem was he had to work from photographs any for said i wont do it because it only work from life. We finally persuaded him, judge pearson and i are the two who had the great honor of serving with judge friendly. So we got some photographs. It was hard to find. We had a group of them and he finally started to work, and he invited us to see it in progress, which astonish me but he said yes, i would like you to. You knew him in life and i did some want you to see it. We would go several times to see it, and in the beginning it was the one time i mentioned, the others we said gee, its a wonderful like this but it looks like stare waterman. But it got much more like Henry Friendly as the weeks went by. One day we were up there and we both thought theres something wrong. It just doesnt quite get it. And i asked elliotts wife what hd think that figure is in the bust . She said early 60s. And i said to him, thats the problem. We knew him late 70s and 80s to we did know him early 60s. But we know who did, thats pierre. So we asked pierre to come to the studio which he did on several occasions, and a combination of pierres skill and Elliott Goldfinger is skill. Pierre would pose and adopt some friendly expressions. [laughing] hes very good at this and he will do it later if you urge him. [laughing] and Elliott Goldfinger, with incredible dexterity, would take a little tiny pieces of clay and while pierre was posing he would adjust the expression to capture first pierre and then henry. And he did it and he did it wonderfully. And then the last point was where to put it. The thin clerk said, because the hand bust was right opposite that door, and the clerk said well, judge, i send you what the friendly bust on the other side of the door to frame the doorway. And i said no, elayne, we dont need him keeping an eye on the customers. I want him up here keeping an eye on the judges. [laughing] there are a number of friendly clerks in the audience. Would any of you like to Say Something very brief . Raise your hand if any of the friendly clerks who here would like to come up and say a few words about the judge. Yes, come on up and form a line. I see a hand up. Is there a hand up back there . Know, someone is raising her head for a different reason to nobody . This has been fabulous. They do so much. The panel, its been a wonderful discussion. [applause] our chief judge chief judge robert katzmann. [applause] our chief judge will bring this to a close. Thank you all, moderator, judge leval. What an extraordinary job judge leval did. [applause] and the extraordinary panel, chief justice roberts, chief judge garland, judge newman, judge randolph, judge glenn, professor wedgewood, fred davis. What a remarkable memorable discussion. Henry friendly has come to life again. What a portrait you all painted. This is something that will live with all of us for a very long time. Its going to be memorialized on tapes. It will be in our learning center. Generations of lawyers would get to learn what Henry Friendly was all about, thanks to you. This program i also should say owes much to our staff from all parts of our forward operation. It is really a team effort and what you think all those who made this afternoon logistically possible. Judge wesley, our circuit executive karen milton and routine of chris cooper, janet kitsch, scott, aisha parts, jerry, joseph jones, christian, micah brown, justin, candace joseph. From i. T. I think colonel landor, xena. I should assistance was provided by the Clerks Office and the staff attorneys office, jasmine beard, Laurie Reichman and katie mccall. We are also very grateful to the Administrative Office of the u. S. Courts, david sellers and kerry and their team. For the webcasting of todays program which is available to everybody in the federal judiciary across the country. This program will also be available nationwide on cspan. So check the cspan website for viewing dates and times. For those of you interested in cle credit, please sign up by 7 30 p. M. In the main lobby in the north rotunda. We will now adjourn to a reception in the lobby. We hope to see you there. Thank you for coming. [applause] [inaudible conversations] today a look at the influence of isis in south asia. Tha. That discussion hosted by te Atlantic Council south asia center starts live at 1 p. M. Eastern on cspan2 come online at cspan. Org and on the free cspan radio app. Tonight on the communicators we will talk with fcc commissioner michael oreilly. When you talk about modernizing the fcc media rules, how do you look at the media market . House of reflected in the roast . The media market even talk the average consumer how are they envisioning media, how are they digesting content, its not just in a small segment of the old three Major Network channels. Youve got a much wider swath of material that is heading towards their palette, and their digesting so much more from different sources. My definition of the merc is probably broader than some. I think the past commission failed in this respect when they viewed things like radio, to beating with radio and some instances it was fm radio computer with fm radio whereas i think the market, everyone is fighting over the same eyeballs, the same attention, the same advertising dollars and its figured out how best to reflect our current rules while doing so in a thoughtful way. Watch tonight at eight eastern on cspan2. Now former judges from their colorado and indiana Supreme Courts discuss the future of law schools. From the seventh Circuit Bar Association annual meeting, its an hour and 20 minutes. [applause] thanks, and thanks for making time on the program for this conversation about the future of our profession. As brian welch said im
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