Saturday, October 31, 2009

Henry Friendly Chooses Private Practice

Like Jerold Auerbach and perhaps others, I have long quoted an off-the-cuff remark of Judge Henry Jacob Friendly (1903-1986) at the 150th anniversary of the founding of the Harvard Law School, as a window into the calculations of soon-to-be graduates at the nation’s elite law schools in the 1920s. “Practically everyone thought there was only one career that was worth pursuing, namely private practice,” recalled Friendly, a member of the Class of 1927. Government work was for those who “didn’t have quite the grades to get the jobs they wanted in private firms, and thought they might do better later.” The well-informed among Friendly’s auditors would have assumed he spoke autobiographically. They would have known that he had been President of the Review, graduated with an astonishingly high grade point average, clerked for Justice Louis D. Brandeis, and had spent his career on Wall Street, first at Root, Clark, Buckner, Howland and Ballantine and then at Cleary, Friendly, Gottlieb & Steen, until his appointment to the Second Circuit in 1959.

I still think Friendly’s remark captures the received wisdom among elite law graduates in the 1920s. The research of Auerbach and his coauthor Eugene Bardach, published in the American Journal of Legal History in 1973, leaves no room for doubt. What is possibly misleading about the remark is the implication that Friendly never seriously considered a career in government service. In fact he did.

In April 1928, Friendly was contemplating the end of his service as Brandeis’s legal secretary. James Landis, who had returned to Cambridge when his own clerkship with Brandeis ended in 1926,had recently written Friendly about his experiences on the Harvard law faculty and about their mutual mentor, Felix Frankfurter. Friendly replied:
What you say about teaching makes me doubly glad that I’ve decided to get a touch of practice. I always had much the feeling that you seem to have now; namely, that if it weren’t for F.F. the Law School would be a pretty deadening place. What I wonder is whether it is wise to be so dependent on any single individual as I fear I’d become if I returned there. Sometimes I’ve thought seriously about the I.C.C. I’ve met one or two of the better examiners, and they seem to be highly competent men who have the joy of making important decisions. Of course, the pay is small, but if one gets fed up with it, a Railroad will generally pay more. However, I’m going to dutifully to Root, Clark, and a year from now I’ll be a wiser and, I hope, not a sadder man.
Three years later Friendly was convinced he made the right choice and passed up the chance to join Landis on the Harvard faculty. “My life, as you know, has always been a pretty soft and easy one,” he explained. “It’s only been since my coming to New York that I’ve had to battle people, to fight, sometimes to win and sometimes to lose. I think the experience has been a developing one and that I should be doing myself an injustice if I cut it too short.”

Even so, Friendly seems to have anguished over an offer, extended in February 1932, to join the legal division of the new Reconstruction Finance Corporation. Brandeis and Frankfurter strongly urged him to take the job, but their arguments were countered by those of, in Brandeis’s sarcastic phrase, “the wise men” of Root, Clark. Although Friendly claimed to have been “dreaming” of the job and was eager to come, he ultimately decided to stay at the firm. Brandeis reported to Frankfurter that, in an explanatory letter, Friendly had shown “more emotion than he had ever disclosed to me.”

After Friendly declined, the job went to another, quite different Frankfurter protégé, Thomas G. Corcoran. One wonders how the history of law and liberalism might have been different had Friendly, rather than Corcoran, been Felix Frankfurter’s man in Washington at the dawn of the New Deal.

Update: The two letters by Friendly I've quoted are in box 5 of the Landis Papers at the Library of Congress.