Topic: What Did You Learn from Judges Friendly & Rehnquist
Senator: Kyl
Date: SEPTEMBER 13, 2005
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KYL: You know, another thing that fascinated me in clerking for two of the most incredible jurists in United States history, Judge Friendly and Justice Rehnquist, I was going to ask you privately, but I just have to ask you, and perhaps it'd be illuminating for folks, particularly law students: What did you learn from those two very erudite men?
ROBERTS: Well, I think, different things. You pick up different things.
ROBERTS: With Judge Friendly, it was -- he had such a total commitment to excellence in his craft, at every stage of the process. Just a total devotion to the rule of law and the confidence that if you just worked hard enough at it, you'd come up with the right answers.
And it was his devotion to the rule of law that he took the most pleasure in. He liked the fact that the editorialists of the day couldn't decide whether he was a liberal or a conservative. And he would be chastised for the same opinion, depending on which paper had read it, as either "that conservative judge" or "that liberal judge." And because he wasn't adhering to a political ideology, he was adhering to the rule of law.
And his devotion to it went to the extent -- and I know other of his clerks had the same experience. I do remember one time where he was -- signed the opinion and he kept writing it and writing it, and he finally decided it was not right. And so he wrote a dissent and he circulated the best majority he could come up with and said, "I don't agree with it, here's my dissent."
And, of course, as you might imagine, the other two judges were persuaded by his dissent and it came out that way.
That sort of open-mindedness at every stage, the appreciation that it may not be the argument, it may not be the briefs. It may be down to the actual writing that reveals what he thinks the right answer is.
And also, he did have an essential humility about him. He was an absolute genius; I mean, there's no doubt about it.
Certainly, whatever he was reviewing -- the decision of an agency, the decision of a legislature -- the notion of saying, "We defer to them because it's their responsibility," I think everybody would have agreed, we'd have a better result if we just let him make the decision regardless of what it was.
But he had the essential humility to appreciate that he was a judge and that this decision should be made by this agency or this decision by that legislature.
And when you read his opinions, he doesn't just, sort of, knock the pieces off the board. He marches through in a very careful way to let you know exactly how he reached the decision; why he went this way; if there was a difference among the precedents, why he chose this one; if there was a question of who has the responsibility, why he went that way.
ROBERTS: And it lays it all out in such a way that you can understand the result.
And to this day, lawyers will say, when they get into an area of the law and they pick up one of his opinions, that you can look at it and it's like having a guide to the whole area of the law.
With then-Justice Rehnquist, who I clerked for the next year, I do remember doing a draft for him once and coming in. And he had thought it was, sort of, the first topic sentence of each paragraph was good and the rest of it could be junked.
And, you know, I pushed back a little bit as I thought, I hoped, was appropriate, and he said at that point -- he said, "Well, I tell you what, why don't we put all this other stuff down in footnotes and just keep, sort of, the first sentence of each paragraph. Put the rest down in footnotes." I figured, well, that was a fair compromise.
So I go back and rework it and hand it to him with some pride, and he looks at it and he says, "Well, all right, now take out the footnotes."
(LAUGHTER)
So one thing I learned from him was, I hope, to try to write crisply and efficiently; that a lot of extra stuff could be dispensed with.
And so many people mentioned during his eulogies and at the, sort of, gathering of the clerks his general approach to the balance between work and family life. I think that was a very important lesson to learn at an early age.
KYL: Judge, thank you. I think that tells us not only something about you as a person, about your style of judging, but probably some good lessons for all of us.
So than you very much.
SPECTER: Thank you, Senator Kyl.
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