& Clerk of Court
DANIEL M. FRIEDMAN, Circuit Judge, [1916-2011]
DANIEL M. FRIEDMAN was nominated by President Jimmy Carter as Chief Judge of the United States Court of Claims on March 22, 1978, was confirmed by the Senate on May 17, 1978, and assumed duties on May 24, 1978. On October 1, 1982, Judge Friedman continued in office as judge of the United States Court of Appeals for the Federal Circuit, where he assumed senior status in 1989. In 1977, Judge Friedman served as Acting Solicitor General, United States Department of Justice. He also served in the Appellate Section, Antitrust Division of the Department of Justice from 1951 to 1959, and in the Solicitor General's Office from 1959 to 1978, where he was second and first assistant to the Solicitor General. Judge Friedman served in the United States Army from 1942 to 1946, and was on the legal staff of the Securities and Exchange Commission in 1942 and from 1946 to 1951. Judge Friedman was a graduate of Columbia College and received his LL.B. from Columbia Law School in 1940. Judge Friedman died on July 6, 2011.
Judge Daniel M. Friedman Eulogies
July 16, 2011
Eulogy Delivered by the Honorable Pauline Newman
Judge Friedman, our colleague and friend, has moved to the banks of memory. We treasure his memory. And we extend our condolences to Judge Friedman’s family, and his friends.
I’m honored to speak for the court, for at this moment Chief Judge Rader is performing a wedding in California – a schedule he couldn’t change. He wrote, from the wedding site: “Please carry my respect and love for Dan in your hearts at his service”. We do indeed.
Respect and love are the markers of our memories of our friend and colleague. We shall not forget Judge Friedman’s dignity, his warmth, his humor. We remember his lifetime of scholarship, his brilliance and his wisdom, all generously shared.
His seventy years of public service started long before he came to the judiciary. In the office of solicitor general, his legal advice to the nation, and his representation as its advocate, had already ensconced him in the annals of good government. So it was fitting that in 1978 President Carter called him to be Chief Judge of the United States Court of Claims -- the eleventh chief judge since 1858.
The Court of Claims was at the foundation of nation’s rule of law – that the people can sue their government, and receive even-handed justice. Judge Friedman told me that he expected to finish his career in that role – and then, about a year later, the idea popped up of this curious new judicial structure, supposed to move the court system into the era of science and technology, and somehow incorporating the reputation of the historic Court of Claims.
Judge Friedman knew that I’d been involved in those early efforts, and he told me that he still wondered what the Court of Claims had to do with the progress of science. But I knew that as Chief Judge he had supported the change. He knew – we all knew -- that if he did not, it would not have happened.
I thought then, and now -- that Judge Friedman had an unusually clear vision of the role of the courts in service to a great nation – and if that service was somehow thought to be slipping, we should do whatever’s in our power to fix it. And he did. I also saw that Judge Friedman’s intellectual curiosity embraced the culture of science. He was fascinated by the movement of electrons, and the advances of chemistry and biology.
Still, with the transition from the Court of Claims, he assured that the precedents of history were preserved, not only by the formality of adopting them, as the Federal Circuit did as its first judicial act -- but by reinforcing their truths.
I was the first judge appointed to the new court, and my chambers were next-door to Judge Friedman’s, on the ninth floor. He made sure I felt welcome, as the first intruder into the domain of the Court of Claims. I soon came upon a case involving a claim against the United States, and I mentioned my uneasiness with deciding against the government. He twinkled – we all remember his twinkle – and he said “that’s our job”, and he quoted Abraham Lincoln -- about the duty of government to render justice against itself.
I haven’t wavered since.
Yesterday I talked to Judge Gajarsa in New Hampshire. Before I could ask him, he said “Dan was the epitome of what a judge will be.”
Dan’s opinions are a treat to read, not just because they advance the law in some very difficult areas, but because of their elegance of style and the purity of their reasoning.
It would be easy to assume that the scholarly tradition from which Judge Friedman came would be remote from the world of applied science, at least in the arcane new areas of intellectual property law. Instead, he was intensely practical, wise and savvy in the law and the world -- with a powerful a sense of justice.
Judge Friedman had, as one would expect, a deep understanding of the judicial process. As a judge, he showed the most profound respect for our inherited law, without diverging from the statutory law. His standards were never compromised. He was a model of judicial elegance. He never showed off, never embarrassed counsel or his colleagues.
Maybe the word is “urbane”. I never saw him badger a lawyer. He never took advantage of his position, looking down at counsel, who can’t answer back.
In bearing and temperament he was made to be a judge. He always listened, and I never saw him show impatience or inattention. He would draw out his colleagues, even as he had the knowledge and confidence of vast experience.
In every way, he will be missed. Dan Friedman’s life was a life of service. He served the law and the nation with a wisdom that’s rare, even among judges. It was a joy to be in his company. We remember his kindness and his smile – and his scholarship, his balance, his sensitivity.
We mourn the loss of our dear colleague, and the nation’s loss of a powerful intellect. He moves to the memory of history.
Statement from law clerk Ted Rosenthal
Back in the summer of 1978, I was preparing to begin my third year of law school when one of my professors, who had worked with Judge Friedman in the Solicitor General's office, called to let me know that there was a new chief judge of the Court of Claims and that I should apply for his clerkship for the following year. Why, I wondered, should I be interested in clerking on the Court of Claims? The little I knew about the court at the time suggested it had a limited and not all that interesting jurisdiction. The answer I got, from Professor Stone and others, led me to apply for and accept Judge Friedman's clerkship and has been validated many times, over the year of my clerkship and ever since. That answer, of course, was that it is the qualities of the judge that represent the best measure of a clerkship, and it is not possible to conceive of a better clerkship opportunity than Judge Friedman's.
It is an honor and a privilege for Don and me to be able to share some thoughts with you here today as we all celebrate together the wonderful life that was Judge Friedman's while mourning its passing. Don and I feel so privileged not just because of who Judge Friedman was and how wonderful his life was, but also because we are speaking in part on behalf of a group of more than 40 law clerks, many of whom with us today, who have each shared in their own way the experience that Don and I had clerking for the Judge more than 30 years ago.
I'm certain that each of us regards our time with the Judge as one of the absolute high points of our legal careers, which, in some cases, like mine, by now span decades. He was, to each of us, a mentor and also a role model. Not just as a lawyer, and his legal skills were superb; not just as a judge, and he embodied every characteristic that one could hope for from the bench; not just as a boss, and working for him could not have been more pleasurable nor more rewarding. But also as a person, as his kindness, compassion, gentleness, wisdom and sense of justice and fair play came out in everything he did. Our love for him knows no bounds. In a letter to me upon my departure from the clerkship, he stated that he liked to think of his former law clerks as a selective group of young friends, and welcomed me to the family. Well, some of us aren't quite so young anymore, but we are all still, and evermore will be, proud to be members of that family.
Other than preparing drafts of opinions and orders for his review, most of my communication with the Judge was oral. What an extraordinary opportunity for a young lawyer! Whether talking about cases before the court or his experiences in the SG's office, there was a learning experience in every conversation. In one case, the parties had provided us with massive briefs, each addressing in a complex manner a series of complex issues. We sat down to discuss the case, and he began "I think the essence of the government's case is," followed by a one sentence distillation of the entirety of the government's briefs. I realized immediately that in that one sentence he had captured more articulately and more persuasively what the government had spent an inch of paper trying to communicate, an ability I despair of ever emulating at his level. And he clearly welcomed giving me a chance to engage with him on issues the court was grappling with. I can still remember him telling me, early in the year, that I was free to disagree with him—heady stuff given the relative status of our legal careers—but if I did so, I had to offer an alternative position and had to provide the support for my position in contrast to his. Perhaps in some measure due to my interactions with the Judge on the cases before us, it did not take long before the Court of Claims' jurisdiction, as limited as I had expected it to be, was fascinating to me.
Over the last week or two, the Judge's clerks have shared many reminiscences among ourselves. What has been clear from reading these is Judge Friedman's absolute genuineness. Despite the differences in our experiences and relationships with the Judge, the themes from his life evident in what we have been sharing are remarkably consistent. Simply put, everyone else is describing exactly the Judge Friedman that I knew.
The stories, comments, emotions we have shared were greatly inspirational to me in preparing for today. I would like to conclude by quoting from one of these reminiscences eloquently capturing, I think, a part of what we would all like to say about Judge Friedman. Lisa Kennedy wrote:
"Before I came to work for Judge Friedman, I was working as a summer associate at King & Spalding in Atlanta. Former Attorney General Griffin Bell approached me and told me that Judge Friedman was, in his view, the most brilliant mind on the federal bench and that he hoped I appreciated how lucky I was to have the opportunity to clerk for him. It is only now that I truly do appreciate how very fortunate I was to work for one of the finest lawyers of our time. Judge Friedman was remarkable not only for his intellect, however, but also for his incredibly kind and gracious character."
With these words from Lisa, I now turn it over to Don.
A LAW CLERK'S EULOGY TO JUDGE DANIEL M. FRIEDMAN
DONALD W. DOUGLAS
Ted and I are two of the four most senior law clerks of Judge Friedman—the others being Richard Mattiaccio and Maxine Howard. Given the Judge's lifetime in government and public service, I can't help but believe, at least on some level, he would have smiled at our selection process.
As many in this audience know from personal experience on either side of the endeavor, there is something so uniquely special about clerking—it is mentoring in its purest, most quintessential form. Within an apprenticeship relationship, there is great freedom of intellectual thought pursued with the single goal of creating something that will withstand intense scrutiny and the test of time.
But for our purposes today, there is another dimension to clerking. Clerks become part of a judge's inner circle. And over the course of that year, given the sheer time spent together and the singularity of the relationship, the judge invariably will demonstrate the full richness of his or her personality. And it is from that perspective that I am expanding on Ted's heartfelt comments.
There are too many facets to a person of Judge Friedman's depth to do more than mention a few in passing. To us, the Judge's fundamental kindness and insatiable curiosity merit special mention. As utterly unbelievable as this may sound, in his 33 years on the bench, before 41 clerks and four administrative assistants, Judge Friedman to our knowledge never uttered a harsh word; not once did we see him seek personal benefit or fame; and never did we know him to be angry or unkind in any manner in any aspect of his life. We know of no other person about whom we can make this statement.
My previous comments, while themselves a fitting testament to this man, still do not define Judge Friedman. Henry David Thoreau said, "The greatest compliment that was ever paid me was when one asked me what I thought, and attended to my answer." The Judge had an intuitive ability to understand this form of kindness, and he practiced it unceasingly. Whether discussing the internet in the early 1990's as he did with Jonathan Feil or the nature of a movie, particularly old westerns, as he did with just about everybody, he always made you feel as though you were the first and only person he had ever asked his question.
Insatiable curiosity? Jur Strobos tells the story of the Judge's interaction with a clerkship applicant on, shall we say, an extended leave of absence from law school. Judge Friedman was so unbounded by conventional constraints, so willing to embrace and so eager to engage genius or creativity wherever and with whomever he saw it, that he was prepared to offer the applicant a clerkship on the spot.
I am quite certain that were Judge Friedman to hear what has and will be said of him today, would borrow a line from Shakespeare---"How my achievements mock me." And I would agree with him only in the sense that he is so much more than his accomplishments. But it is precisely because of his achievements that we are compelled to look so closely to the nature of his character and the genuineness of his spirit. And when we do so—when these are put under the microscope, when they are put to the test—that he could have faithfully lived by these precepts, while still accomplishing so much, is one of the marvels of his life and one of its truest sources of inspiration.
Most of us do not pass through this life without at some point questioning of ourselves that which was previously unquestioned or unquestionable. Sometimes this comes about upon the death of a friend or family member; sometimes as the result of a perceived setback; at other times following a long sought after success; and sometimes just with the passage of time. If these moments do arrive in your life, and if you do make a conscious decision to change, my prediction is that you will be amazed at how close your decision brings you to the values of the person remembered here today.
Let me honor Judge Friedman finally by adhering to Albert Einstein's admonition: "Everything should be made as simple as possible, but not simpler." Simply stated then: We shall miss you, Judge Friedman. We shall miss the comfort of knowing that you still are here. Most of all, we shall miss your gentle smile, and the character of the giant that we have come to realize resided there. And we all have more regrets than we dare mention that we found it so difficult to tell you directly how grateful we are for our time together, how much impact you have had on our lives, and how genuinely we love you.