A look back at Judge Newman’s eulogy of Judge Daniel Friedman

I was grabbing a piece of chocolate today and an image of the late Judge Daniel Friedman popped into my mind. Apparently, he was very fond of chocolate. Given the passage of time, I thought it might be nice to relate, again, Judge Newman’s eulogy of Judge Friedman:

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.

You can listen to then Assistant Solicitor General Daniel Friedman argue before the Supreme Court in 1959 here:

Oral Argument of Barr v. Matteo before the Supreme Court of the United States, April 20, 1959

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