Tuesday, November 1, 2011

Domnarski on Judges Friendly and Posner & Judicial Biography Beyond the Supreme Court

Last week I mentioned that William Domnarski's book, Federal Judges Revealed (Oxford, 2009), is among the books that I'm reading as I launch a project that's partly a judicial biography. Those interested in judging might also review Domnarski's article, "The Correspondence of Henry Friendly and Richard A. Posner, 1982-86," published in the American Journal of Legal History (Vol. 51: 3, July 2011). The details about the judges' relationship recounted by Domnarski illuminate how (eminent) judges think and exercise influence. The contents of the Journal of Legal History are not available online; however, a working version of the same article is available online at this link on SSRN. The SSRN abstract follows.

The newly opened papers of Henry Friendly contain more than one hundred pages of correspondence with Richard Posner 1982-86, the last four years of Friendly's life. Friendly was unquestionably the greatest appellate judge of his generation, and Posner would become the greatest of his. In this great generational intersection, we see these great judges discussing the law, personalities, their craft, and the major jurisprudential issues of their day. Through their correspondence we get an unique view into their greatness.

The article reaffirmed my sense that judicial biographies should more frequently target subjects other than Supreme Court justices. Judge Friendly deserves a biography, it would seem; I hope a capable scholar will undertake that project. (So far as I know, no one is working on a Friendly biography; please correct me, readers, if I'm wrong).  For more on Friendly, see Judge Michael Boudin's tribute, "Judge Henry Friendly and the Craft of Judging," 159 U. Pa. L. Rev. 1 (2010).  Here's an excerpt from that very interesting essay.

How judges decide cases is a subject on which Henry Friendly sometimes touched in his writings. An example, published in this school’s law journal, was his book review of Karl Llewellyn’s great work on appellate judging; but Friendly seemed mildly amused at Llewellyn’s complex scheme and unique vocabulary. Anyway, Judge Friendly’s own bent was toward history, not jurisprudence, and after three decades of arguing cases and advising clients, Friendly’s craftsmanship was in his bones.
Yet interest in the subject of how judges decide cases continues to flourish. Recently, scholars have offered differing views on whether and to what extent federal circuit judges are, or should be, influenced by precedent, by statutory language, by the slant of the president who appointed them, by the political affiliation of their own colleagues, by the size of their circuits, by the presence or absence of dissents, by the practical consequences of their decisions, and by their own social goals and temperament. Judge Friendly’s own decisions, along with the work of a handful of other judges, are the gold standard in American appellate judging. So it is worth pondering what Friendly’s body of court work can teach us about him and about the enterprise of deciding appeals.

Several other lower-court jurists are important enough to sustain a book-length scholarly treatment.  For my part, I'm writing on Judge Constance Baker Motley of the U.S. District Court, S.D.N.Y., the  barrier-breaking civil rights lawyer turned politician once mentioned as a possible Supreme Court nominee. Judge Robert Carter of the same court also merits a biography; a well-done one would substantially alter civil rights historiography. Then there's A. Leon Higginbotham of the U.S. Court of Appeals, Third Circuit; many thought he merited appointment as Justice Thurgood Marshall's successor on the Supreme Court. I'm sure there are other lower-court judges who deserve extended scholarly studies.