Learned Hand and Henry J. Friendly are often listed as the two greatest judges never appointed to the US Supreme Court. I have discussed elsewhere why Hand was never appointed. https://www.alternatehistory.com/discussion/showthread.php?t=339654 Here I want to concern myself with Friendly, who is supposed to have had the best academic record of any student in the history of Harvard Law School, clerked for Justice Brandeis, was in private practice in New York from 1928 to 1959, and was appointed to the Second Circuit by President Eisenhower in 1959. http://en.wikipedia.org/wiki/Henry_Friendly It says something about Friendly's reputation among lawyers that when a former clerk of Friendly's, John Roberts, was nominated to the Supreme Court, Roberts' defenders emphasized that Friendly had been Roberts' mentor, while Roberts' critics in effect said "He's no Henry Friendly." http://www.slate.com/id/2124353/
In many respects, one would think that Friendly would be an ideal choice for Nixon to appoint to the Court. Not only was he a conservative Republican--albeit one highly respected by lawyers of every ideological persuasion--but he had been quite critical of some of the Warren Court decisions on criminal procedure. Two of his most famous law review articles were "Is Innocence Irrelevant? Collateral Attack on Criminal Judgments," 38 U. Chi. L. Rev. 142 (1970) and "The Fifth Amendment Tomorrow: The Case for Constitutional Change," 37 U. Cin. L. Rev. 671 (1968). In the former he argued that federal habeas corpus relief should, with rare exceptions, require "a colorable showing of actual innocence;" in the latter, he attacked the Supreme Court for what he saw as undue enlargement of the Fifth Amendment, and urged a constitutional amendment to cut the right against self-incrimination down to size
Not too much has been written on why Nixon did not appoint Friendly to the Court. Age, region, and religion may each have had something to do with it. Friendly was 66 in 1969 when Nixon made his first appointments to the Court. After Burger's easy confirmation and Fortas's resignation, Nixon wanted to couple the 61-year-old Burger with a younger colleague, preferably a southerner like Clement Haynsworth. There was no particular desire in the White House to continue the tradition of a "Jewish seat," which the appointment of Friendly, from the Bavarian-Jewish Freundlich family, would do. Some conservatives even warned that "merely considering a large number of Jewish candidates might cause the administration to be charged with perpetuating a form of reverse discrimination." David Alistair Yalof, *Pursuit of Justices: Presidential Politics and the Selection of Supreme Court Nominees,* pp. 104-5 http://books.google.com/books?id=LV-59wucEVkC&pg=PA105&sig=nyUVGtun6MaWeZ70TcmuUT36HVI
Nixon did on a few occasions indicate that Friendly was being considered. According to David M. Dorsen, *Henry Friendly, Greatest Judge of His Era* (Harvard UP Press 2012), p. 136, "Nixon seems to have publicly mentioned Friendly twice, once during the presidential campaign, when he referred to Friendly as a possible Chief Justice, and once on the notorious Nixon White House tapes, where Nixon referred to him as a 'regional candidate.' The September 23, 1968 issue of *Newsweek* reported, 'Nixon himself has even started to pass the word on his idea of an ideal successor to Warren: Henry Friendly, a senior judge on the Second Circuit Court of Appeals (in New York). After the presidential election, the *Baltimore Sun* named Warren Burger and Friendly as two contenders, and *Time* magazine referred to Friendly 'as one of Richard Nixon's leading candidates for Chief Justice of the Supreme Court.'" https://books.google.com/books?id=Z9ctStY3580C&pg=PA136&lpg=PA136 My own impression is that Nixon never really seriously considered appointing Friendly; if he or his aides dropped Friendly's name, it was only because a conservative jurist of that stature could not be totally ignored. Fifteen years later, Friendly wrote District Judge Charles Wyzanski, "Fortunately, I never allowed myself to take seriously Mr. Nixon's mention of me as a candidate for the Chief Justiceship." (Friendly went on to say that he never wanted to be Chief Justice, saying that he would have been a bad one, and that he would have hated to do all the things Burger enjoyed. But he added that he would not have turned down the job.) Friendly thought he had a better chance to be appointed to Fortas's seat, and blamed Attorney General Mitchell who, he said, just used the age issue as an excuse for wanting to appoint a Southerner.
IMO the age issue was a real consideration, and not *merely* an excuse. And yet Powell was 64 when Nixon appointed him in 1971, so perhaps age need not have been decisive. (Although age *was* taken seriously as the one major argument against Powell, according to John Dean.) In any event, after Haynsworth and Carswell had been defeated (so that Nixon could tell the South, "Sorry, I tried to appoint southern conservatives, but the Senate just won't confirm them") Friendly would if nothing else have the virtue of being certain to be confirmed easily.
So suppose Nixon appoints not Burger and Blackmun but Burger and Friendly in 1969-70. (Incidentally, before Fortas resigned, Leonard Garment suggested that Nixon elevate Justice White to Chief Justice and then name Burger or Friendly to the vacant associate justice seat. But Justice Stewart, who had also been considered as a possible Chief Justice, warned Nixon that in view of the ethical cloud over the Court caused by the Fortas affair, this was not a time to appoint one of the serving justices as Chief Justice. After that, the appointment of Burger, with his close ties to the GOP, as Chief Justice was almost inevitable. Yalof, *Pursuit of Justices,* p. 103.) One difference this will make: Friendly will be opposed to *Roe v. Wade.* In 1970, he wrote a draft opinion rejecting a constitutional challenge to New York's abortion law; it was never published because the New York state legislature liberalized the law, rendering the case moot. See A. Raymond Randolph,"Before Roe v. Wade: Judge Friendly's Draft Abortion Opinion," Harvard Journal of Law & Public Policy, Vol. 29, 2006. http://www.law.harvard.edu/students/orgs/jlpp/Vol29_No3_Randolph.pdf With Friendly on the Court instead of Blackmun the vote will at most be 6-3 in favor of invalidating the abortion law in *Roe* but more likely 5-4 because Burger was a reluctant concurrence in OTL and with his friend Blackmun off the Court and Friendly on it, he is likely to join the dissenters. Or maybe the dissenters will even to some extent prevail; could there be at least one other Justice who would be reluctant to make such a drastic change in the law with a 5-4 majority and instead insist on a narrower opinion?
One other thought: Maybe the age issue and Nixon's desire for a Southerner and his apparent determination (whether motivated by anti-Semitism or not) to end the tradition of a "Jewish seat" made Friendly an unlikely choice in 1969 and afterwards. So one alternative would be for Eisenhower to appoint Friendly to the federal judiciary much earlier in his administration--say, 1953 instead of 1959--and then appoint him to the Supreme Court later in the decade instead of Stewart or Whittaker. (There is even a very slight chance that a Democratic president could have appointed Friendly--according to Dorsen, Theodore Sorensen included Friendly on a list of nineteen candidates for the seat ultimately filled by Byron R. White, and Katzenbach similarly included him as well as Paul Freund and Ed Levi on a list of a dozen candidates for the "Jewish seat" being vacated by Goldberg--but Johnson of course wanted Fortas...)
Trivia note: The oldest Supreme Court appointee was Horace Lurton, who was almost 66 when appointed by President Taft in late 1909--the same age as Friendly in mid-1969. Of course Lurton may not be an especially good argument for appointing a justice in his mid-sixties, as he died after only four years on the Court. http://en.wikipedia.org/wiki/Horace_Harmon_Lurton
In many respects, one would think that Friendly would be an ideal choice for Nixon to appoint to the Court. Not only was he a conservative Republican--albeit one highly respected by lawyers of every ideological persuasion--but he had been quite critical of some of the Warren Court decisions on criminal procedure. Two of his most famous law review articles were "Is Innocence Irrelevant? Collateral Attack on Criminal Judgments," 38 U. Chi. L. Rev. 142 (1970) and "The Fifth Amendment Tomorrow: The Case for Constitutional Change," 37 U. Cin. L. Rev. 671 (1968). In the former he argued that federal habeas corpus relief should, with rare exceptions, require "a colorable showing of actual innocence;" in the latter, he attacked the Supreme Court for what he saw as undue enlargement of the Fifth Amendment, and urged a constitutional amendment to cut the right against self-incrimination down to size
Not too much has been written on why Nixon did not appoint Friendly to the Court. Age, region, and religion may each have had something to do with it. Friendly was 66 in 1969 when Nixon made his first appointments to the Court. After Burger's easy confirmation and Fortas's resignation, Nixon wanted to couple the 61-year-old Burger with a younger colleague, preferably a southerner like Clement Haynsworth. There was no particular desire in the White House to continue the tradition of a "Jewish seat," which the appointment of Friendly, from the Bavarian-Jewish Freundlich family, would do. Some conservatives even warned that "merely considering a large number of Jewish candidates might cause the administration to be charged with perpetuating a form of reverse discrimination." David Alistair Yalof, *Pursuit of Justices: Presidential Politics and the Selection of Supreme Court Nominees,* pp. 104-5 http://books.google.com/books?id=LV-59wucEVkC&pg=PA105&sig=nyUVGtun6MaWeZ70TcmuUT36HVI
Nixon did on a few occasions indicate that Friendly was being considered. According to David M. Dorsen, *Henry Friendly, Greatest Judge of His Era* (Harvard UP Press 2012), p. 136, "Nixon seems to have publicly mentioned Friendly twice, once during the presidential campaign, when he referred to Friendly as a possible Chief Justice, and once on the notorious Nixon White House tapes, where Nixon referred to him as a 'regional candidate.' The September 23, 1968 issue of *Newsweek* reported, 'Nixon himself has even started to pass the word on his idea of an ideal successor to Warren: Henry Friendly, a senior judge on the Second Circuit Court of Appeals (in New York). After the presidential election, the *Baltimore Sun* named Warren Burger and Friendly as two contenders, and *Time* magazine referred to Friendly 'as one of Richard Nixon's leading candidates for Chief Justice of the Supreme Court.'" https://books.google.com/books?id=Z9ctStY3580C&pg=PA136&lpg=PA136 My own impression is that Nixon never really seriously considered appointing Friendly; if he or his aides dropped Friendly's name, it was only because a conservative jurist of that stature could not be totally ignored. Fifteen years later, Friendly wrote District Judge Charles Wyzanski, "Fortunately, I never allowed myself to take seriously Mr. Nixon's mention of me as a candidate for the Chief Justiceship." (Friendly went on to say that he never wanted to be Chief Justice, saying that he would have been a bad one, and that he would have hated to do all the things Burger enjoyed. But he added that he would not have turned down the job.) Friendly thought he had a better chance to be appointed to Fortas's seat, and blamed Attorney General Mitchell who, he said, just used the age issue as an excuse for wanting to appoint a Southerner.
IMO the age issue was a real consideration, and not *merely* an excuse. And yet Powell was 64 when Nixon appointed him in 1971, so perhaps age need not have been decisive. (Although age *was* taken seriously as the one major argument against Powell, according to John Dean.) In any event, after Haynsworth and Carswell had been defeated (so that Nixon could tell the South, "Sorry, I tried to appoint southern conservatives, but the Senate just won't confirm them") Friendly would if nothing else have the virtue of being certain to be confirmed easily.
So suppose Nixon appoints not Burger and Blackmun but Burger and Friendly in 1969-70. (Incidentally, before Fortas resigned, Leonard Garment suggested that Nixon elevate Justice White to Chief Justice and then name Burger or Friendly to the vacant associate justice seat. But Justice Stewart, who had also been considered as a possible Chief Justice, warned Nixon that in view of the ethical cloud over the Court caused by the Fortas affair, this was not a time to appoint one of the serving justices as Chief Justice. After that, the appointment of Burger, with his close ties to the GOP, as Chief Justice was almost inevitable. Yalof, *Pursuit of Justices,* p. 103.) One difference this will make: Friendly will be opposed to *Roe v. Wade.* In 1970, he wrote a draft opinion rejecting a constitutional challenge to New York's abortion law; it was never published because the New York state legislature liberalized the law, rendering the case moot. See A. Raymond Randolph,"Before Roe v. Wade: Judge Friendly's Draft Abortion Opinion," Harvard Journal of Law & Public Policy, Vol. 29, 2006. http://www.law.harvard.edu/students/orgs/jlpp/Vol29_No3_Randolph.pdf With Friendly on the Court instead of Blackmun the vote will at most be 6-3 in favor of invalidating the abortion law in *Roe* but more likely 5-4 because Burger was a reluctant concurrence in OTL and with his friend Blackmun off the Court and Friendly on it, he is likely to join the dissenters. Or maybe the dissenters will even to some extent prevail; could there be at least one other Justice who would be reluctant to make such a drastic change in the law with a 5-4 majority and instead insist on a narrower opinion?
One other thought: Maybe the age issue and Nixon's desire for a Southerner and his apparent determination (whether motivated by anti-Semitism or not) to end the tradition of a "Jewish seat" made Friendly an unlikely choice in 1969 and afterwards. So one alternative would be for Eisenhower to appoint Friendly to the federal judiciary much earlier in his administration--say, 1953 instead of 1959--and then appoint him to the Supreme Court later in the decade instead of Stewart or Whittaker. (There is even a very slight chance that a Democratic president could have appointed Friendly--according to Dorsen, Theodore Sorensen included Friendly on a list of nineteen candidates for the seat ultimately filled by Byron R. White, and Katzenbach similarly included him as well as Paul Freund and Ed Levi on a list of a dozen candidates for the "Jewish seat" being vacated by Goldberg--but Johnson of course wanted Fortas...)
Trivia note: The oldest Supreme Court appointee was Horace Lurton, who was almost 66 when appointed by President Taft in late 1909--the same age as Friendly in mid-1969. Of course Lurton may not be an especially good argument for appointing a justice in his mid-sixties, as he died after only four years on the Court. http://en.wikipedia.org/wiki/Horace_Harmon_Lurton