Thursday, August 14, 2014

A00136 - Wilfred Feinberg, Federal Appeals Court Judge and Mentor

Judge Wilfred Feinberg in 1980. CreditNeal Boenzi/The New York Times
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Wilfred Feinberg, a federal appeals court judge in New York who ruled in major cases involving the Vietnam War and labor rights over his five decades on the bench and shepherded the careers of many young lawyers to prominence, died on July 31 in Manhattan. He was 94.
His son, Jack, said the cause was pneumonia.
Judge Feinberg was a lawyer in private practice in 1961 when President John F. Kennedy appointed him to a newly created position on the United States District Court for the Southern District of New York.
Five years later, President Lyndon B. Johnson appointed him to succeed Thurgood Marshall on the United States Court of Appeals for the Second Circuit. He served 45 years there, eight as its chief judge.
In 1966, he was part of a three-judge panel that found that a young military draftee had violated a new law prohibiting the burning of draft cards. The year before, after a wave of draft-card burnings in protest of the Vietnam War, Congress had made burning the cards illegal.
Lawyers for the defendant, David J. Miller, argued that card-burning was a symbolic protest protected as free speech. The appeals court affirmed a lower-court ruling, which said Congress had the right to pass the law under its authority to create and maintain armies.
“The range of symbolic conduct intended to express disapproval is broad; it can extend from a thumbs-down gesture to political assassination,” Judge Feinberg wrote in the majority opinion. “Would anyone seriously contend that the First Amendment protects the latter?”
On June 23, 1971, Judge Feinberg was one of three on an eight-judge panel who dissented from a majority opinion that delayed the publication of the Pentagon Papers in The New York Times. A lower court judge had ruled that The Times could publish the documents, which chronicled American involvement in the Vietnam War, but five of the appellate judges ordered publication to be delayed to allow the government time to prove that it would threaten national security.
Days later, the United States Supreme Court allowed the publication to go forward.
Later in the 1970s, Judge Feinberg was involved in a decision that required a North Carolina textile company, J. P. Stevens and Company, to allow employees to pursue efforts to unionize. The case inspired the 1979 movie “Norma Rae,” with Sally Field as a textile-factory labor activist.
Judge Feinberg was born on June 22, 1920, in Manhattan, the youngest of three children of Jac and Eva Feinberg. The family had a company that sold hosiery.
He graduated from Columbia College in 1940, then served in the Army in Europe during World War II. He went on to attend Columbia Law School, where he was editor of the Law Review and graduated in 1946. He spent much of the next 15 years in private practice before President Kennedy appointed him to the federal bench.
Judge Feinberg’s selection to the appeals court in 1965 was to fill a seat being vacated by Judge Marshall, who had been named solicitor general. Senator Robert F. Kennedy of New York and some prominent advisers had urged President Johnson to select Edward Weinfeld, who was also a federal judge. Judge Weinfeld had many more years of experience and a national reputation. He was 64 at the time; Judge Feinberg was 45.
Some people speculated that Johnson had been influenced by the fact that Judge Feinberg’s older brother, Abraham, was a major contributor to Democratic candidates. Others said the president chose Judge Feinberg for his potential to have a long career on the court.
Besides his son, he is survived by his wife of 68 years, the former Shirley Marcus; his daughters, Susan Stelk and Jessica Twedt; and six grandchildren.
Judge Feinberg’s former clerks include Lee C. Bollinger, the president of Columbia; Richard L. Revesz, the former dean of the New York University School of Law; and Gerard E. Lynch, an appellate judge on the Second Circuit.
Judge Feinberg was a leader in judicial administration, serving on national committees. In 2004, he received the Edward J. Devitt Distinguished Service to Justice Award. The selection committee was led by Chief Justice William H. Rehnquist.
Mr. Revesz said in an interview that though they differed ideologically, Justice Rehnquist had longstanding high regard for Judge Feinberg. Years earlier, after being appointed to the Supreme Court, Justice Marshall had selected Mr. Revesz as one of his clerks. In the move from New York to Washington, Mr. Revesz shared a moving trailer with his co-clerk in Judge Feinberg’s office, Alan B. Vickery. Mr. Vickery was going to work for Justice Rehnquist.
Wilfred Feinberg (June 22, 1920 – July 31, 2014) was a United States federal judge, who served on the United States Court of Appeals for the Second Circuit.

Education and early career[edit]

Born in New York, New York, Feinberg received a B.A. from Columbia University in 1940 and served in the United States Army during World War II, from 1942 to 1945. He then received a LL.B. from Columbia Law School, where he was editor-in-chief of the Columbia Law Review, in 1946. After graduating, Feinberg served as law clerk to Judge James P. McGranery of the United States District Court for the Eastern District of Pennsylvania from 1947 to 1949. He was in private practice of law in New York from 1949 to 1961, except for service as the Deputy Superintendent of the New York State Department of Banks in 1958.

Federal Judicial Service[edit]

On October 5, 1961 Feinberg received a recess appointment from President John F. Kennedy to a new seat on theUnited States District Court for the Southern District of New York created by 75 Stat. 80. Formally nominated on January 15, 1962, Feinberg was confirmed by the United States Senate on March 16, 1962, and received his commission the following day. On January 19, 1966 President Lyndon B. Johnson nominated Feinberg for elevation to the seat on theUnited States Court of Appeals for the Second Circuit vacated by the appointment of Thurgood Marshall to the United States Supreme Court. Feinberg was confirmed by the United States Senate on March 4, 1966, and received his commission on March 7, 1966. He was Chief Judge of the Circuit from 1980 to 1988, assumed senior status on January 31, 1991, and retired from the Circuit in 2011. He served on the Judicial Conference from 1980 to 1988, chairing the Executive Committee from 1987 to 1988, and also serving as a member of the Long Range Planning Committee from 1991 to 1996. Feinberg authored many seminal opinions, including United States v. Miller, which upheld the constitutionality of a federal law prohibiting the burning of draft cardsNLRB v. J.P. Stevens & Co, the labor union case that inspired the movie, Norma Rae, and Kelly v. Wyman.[1]
In 2004 Feinberg received the 22nd Annual Edward J. Devitt Distinguished Service to Justice Award, which honors an Article III judge whose career has been exemplary, as measured by the significant contributions to the administration of justice, the advancement of the rule of law, and the improvement of society as a whole. He has also been awarded the Learned Hand Medal for Excellence in Federal Jurisprudence and the Edward Weinfeld Award. In the pages of the Columbia Law Review, Professor Maurice Rosenberg summarized Feinberg's career, writing "Wilfred Feinberg is the kind of jurist the Founding Fathers must have had in mind when they bestowed life tenure on federal judges. His first twenty-five years on the bench have revealed qualities of mind and conscience that are of the kind most sought after in a judge. Feinberg regards judicial office as a way to serve justice, not as a chance to wield power. And he renders his service superbly -- with intelligence, understanding, kindness, and craftsmanship. He is animated by a disciplined compassion that flows from a humane mind committed to the law".[2]
His former clerks include many law professors, including Lee Bollinger (President of Columbia University), Thomas Joo (UC Davis School of Law),[3] Rachel Moran(Dean of UCLA School of Law), Richard Revesz (Dean of New York University Law School and Director of the American Law Institute), and David Wilkins (Professor at Harvard Law School); judges, including Judge Gerard Lynch, U.S. Circuit Judge for the Second Circuit (and Professor of Law at Columbia), and Judge Michael Dolinger, U.S. Magistrate Judge for the Southern District of New York, public servants such as Francis Blake, former general counsel of the Environmental Protection Agency, and prominent public interest lawyers, including Ralph Cavanagh of the Natural Resources Defense Council in San Francisco and Penda Hair ofAdvancement Project in Washington, D.C.. Feinberg's papers are housed at the Columbia University Rare Book & Manuscript Library.
He died on July 31, 2014, aged 94.[4]

Notable cases[edit]

  • Zippo Mfg. Co. v. Rogers Imports, Inc., 216 F.Supp. 670 (S.D.N.Y. 1963)
  • American Exp. Warehousing, Limited v. Transamerica Ins. Co.380 F.2d 277 (C.A.2 (N.Y.) 1967)
  • Kelly v. Wyman, 294 F.Supp. 893 (S.D.N.Y. 1968)
  • J. P. Stevens & Co. v. N. L. R. B.,380 F.2d 292 (2d Cir. 1967)
  • N.L.R.B. v. J.P. Stevens & Co., Inc.,563 F.2d 8(2d Cir. 1977)
  • U.S. v. Bethlehem Steel Corp.,446 F.2d 652 (2d Cir. 1971)
  • Goetz v. Ansell,477 F.2d 636 (2d Cir. 1973)
  • Matter of Andros Compania Maritima, S.A. of Kissavos (Marc Rich & Co., A.G.)579 F.2d 691 (2d Cir. 1978)
  • Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980)
  • Independent Bankers Ass'n of New York State, Inc. v. Marine Midland Bank, N.A.,757 F.2d 453
(2d Cir. 1985)
  • Knight v.U.S. Fire Ins. Co.,804 F.2d 9 (2d Cir. 1986)
  • Kaplan v. City of Burlington,891 F.2d 1024 (2d Cir. 1989)
  • New Era Publications Intern.904 F.2d 152 (2d Cir. 1990)
  • In re Joint Eastern and Southern Dist. Asbestos Litigation,982 F.2d 721 (2d Cir. 1992)
    • In re Joint Eastern and Southern Dist. Asbestos Litigation,993 F.2d 7 (2d Cir. 1993)
  • Bellamy v. Cogdell,974 F.2d 302 (2d Cir. 1992)
  • Atlantic States Legal Foundation, Inc. v. Pan American Tanning Corp.,993 F.2d 1017 (2d Cir. 1993)
  • In re U.S., 10 F.3d 931 (2d Cir. 1993)
  • Woods v. Bourne Co., 60 F.3d 978 (2d Cir. 1995)
  • Hadges v. Yonkers Racing Corp., 48 F.3d 1320 (2d Cir. 1995)
  • Baker v. Cuomo, 58 F.3d 814 (2d Cir. 1995)
  • Baker v. Pataki, 85 F.3d 919 (2d Cir. 1996)

Published works[edit]

  • Federal Judicial Center Judicial Writing Project (Board of Editors), 1989–Present
  • Expediting Review of Felony Convictions, 59 American Bar Association Journal 1025 (1973)
  • Foreword: A National Court of Appeals?, 42 Brooklyn Law Review 611 (1976)
  • Foreword: Judicial Administration: Stepchild of the Law, 52 St. Johns Law Review 187 (1978)
  • Maritime Arbitration and the Federal Courts, 5 Fordham International Law Journal 245 (1982)
  • The National Court of Appeals: Is It Necessary?, 32 The Record, Association of the Bar of the City of New York 106 (1977)
  • The State of the Second Circuit, 38 The Record, Association of the Bar of the City of New York 363, May/June, 1983
  • Introduction, The Law and the Public, A. Bartlett Giamatti, 38 The Record, Association of the Bar of the City of New York, Jan./Feb., 1983
  • Second Circuit Court, A Far Cry From Days of Learned Hand (Transcript), 187 New York Law Journal 1 (1982)
  • Tribute: Hon. James D. Hopkins, 3 Pace Law Review 451 (1983)
  • Introduction: The Remarkable Hands - An Affectionate Portrait, Published by Federal Bar Association (1983)
  • Address Before the New York Patent Law Association (Transcript), 65 Journal Pat. Off. Society 221 (1983)
  • Constraining "The Least Dangerous Branch" The Tradition of Attacks on Judicial Power (Madison Lecture), 50 New York University Law Review (May 1984)
  • Constraining The Least Dangerous Branch The Tradition of Attacks on Judicial Power (Madison Lecture), The Evolving Constitution, 208 Wesleyan University Press (1989)
  • The State of the Second Circuit (Transcript), 39 American Bar Central New York 178 (1984)
  • The Office of Chief Judge of a Federal Court of Appeals (Sonnet Lecture), 53 Fordham Law Review 369 (1985)
  • Judicial Independence, 36 Syracuse Law Review 885 (1985)
  • The State of the Second Circuit (Transcript), 106 F.R.D. 121 (1985)
  • Unique Customs and Practices of the Second Circuit (Inaugural Kaplan Lecture) 14 Hofstra Law Review 297 (1986)
  • In Memoriam: Henry J. Friendly, 99 Harvard Law Review 1713 (1986)
  • The Coming Deterioration of the Federal Judiciary, 42 The Record 179 (1987)
  • Is Diversity Jurisdiction an Idea Whose Time Has Passed?, New York State Bar Journal, July, 1989
  • Foreword, Distinctive Practices of The Second Circuit, Foundation of the Federal Bar Council, 1989
  • Senior Judges: A National Resource, 56 Brooklyn Law Review 409 (1990)
  • Arbitration and Antitrust - An Introduction, 44 New York University Law Review 1069 (1969)
  • Recent Developments in the Law of Privacy, 48 Columbus Law Review 713 (1948)
  • The Role of the Judge, The Grand Design of America's Justice System, 30 Series, Institute of Comparative Law 81, Chūō University, Japan, 1995
  • Introduction, Dialogue Between Hon. Frank A. Easterbrook and Hon. John J. Gibbons on Approaches to Judicial Review, The Blessings of Liberty, An Enduring Constitution in a Changing World, Random House, 1989
  • A View From the Bench, Experience, The Magazine of the Senior Lawyers Division (ABA) Vol. 7, #1, p. 22, Fall, 1996

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