The MVP of the Second Circuit

Jon O. Newman
Judges Jon O. Newman and Denise Cote at the Second Circuit Judicial Conference in 1997, with Judge Newman impersonating Carnac the Magnificent, the character created by Johnny Carson on The Tonight Show

Judges come in many flavors. Thurgood Marshall could be salty, even spicy. In dissent, Antonin Scalia could be sour and occasionally bitter. Almost no judge qualifies as sweet. But in his autobiography, Benched, the distinguished federal appellate judge Jon O. Newman seems to embody what scientists have described as the fifth basic taste—umami, meaning savory or, as appropriate here, meaty.

Newman has served as a federal judge for more than forty-six years, most of them on the Second Circuit Court of Appeals (which handles federal appellate cases arising in New York, Connecticut, and Vermont). Within the legal profession, he is well known and highly regarded. When he received the federal judiciary’s highest honor, the Devitt Award, in December 2016, Justice Sonia Sotomayor described him as “a man of uncommon brilliance, and generosity.” His legal contributions have directly influenced the development of the law and thereby indirectly affected the lives of thousands of ordinary Americans—most of whom have never heard of him.

Will the publication of his fine autobiography alter his comparative anonymity? Probably not. Although Benched is filled with interesting, often delightful anecdotes, it has (as its punning title suggests) a certain insider quality that may limit its accessibility. For example, Newman describes the machinations that he had to go through in order to have a bust of former federal judge Henry Friendly—almost universally regarded as the most accomplished federal judge of the 1960s and 1970s—added to the courtroom where the Second Circuit sat. Although one might have thought this would be easy, Newman knew better, because Irving Kaufman (infamous for sentencing Julius and Ethel Rosenberg to death) “was still the chief judge, and I suspected that his vanity and ego, large even by judicial standards, would not make him receptive to my proposal.” (This is as close as Newman comes in the entire book to saying anything disparaging about a colleague, let alone about judges in general.) It was only by secretly enlisting other judges in his plot, choosing the right moment, and then presenting Kaufman with an effective fait accompli that Newman achieved his goal.

For those of us who personally knew both Friendly and Kaufman, this story is delicious. But to most readers, it may well seem of little consequence. Over the past decade or more, I have each year asked my students at Columbia Law School, “Who was Henry Friendly?” In response I usually get blank stares or, occasionally, “Isn’t that the guy Chief Justice Roberts clerked for?” The judicial vanity of which Newman rightly takes note is nicely matched, it would appear, by the speed with which even great judges are forgotten.

Equally unnoticed, it seems, are the…

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