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Jewish World Review
May 12, 2009
/ 18 Iyar 5769
The Lost Light
It's getting harder and harder to tell the daily news from the daily crop of ironies. They grow identical. Consider:
A glance at this month's programs offered by the Clinton School of Public Service here in Little Rock lists an appearance by Polly J. Price, dean of faculty at Emory University's law school. She'll be discussing her fine new study of Richard S. Arnold's law and life, having been one of his law clerks (1989-91) when he served on the Eighth Circuit Court of Appeals.
That's Richard Sheppard Arnold, who was regularly described, like Learned Hand in another generation, as the greatest judge never to have served on the Supreme Court of the United States.
And, yes, the program is being presented at the school named for William J. Clinton, who among other things, will be remembered as the president who did not appoint the finest legal mind of his time to the United States Supreme Court.
I forget which of the mediocrities currently serving on the court Bill Clinton chose instead, and remember only the reason, or at least the excuse, for his not choosing Judge Arnold: the cancer that would eventually take the judge's life. But not for another ten years, during which he would serve with the greatest distinction on the appellate bench.
During that decade it regularly occurred to some of us that to have had just one year of Richard Arnold's remarkably clear jurisprudence on the U.S. Supreme Court would have been worth more than all the fuzzy ruminations handed down by any of his lessers now on that court.
But the opportunity was lost. This is what comes of a president's lacking the faith, hope and courage, not to mention judgment, to make the best appointment he could to the Supreme Court of the United States and Bill Clinton must have known who that best appointee was in 1994. Every knowledgeable legal scholar in the country did.
For who in American law had not heard of Richard Arnold? Even in his salad days at Yale and Harvard Law, where he was tops in his class again, the slight, gangly kid from Arkansas was something of a legend. Even then his reasoning was as clear as his penmanship, and as concise and unassuming. The whole course of American law might have been clarified and elevated had he served on the nation's highest court; the tragedy not for Richard Arnold but for the country is that we'll never know.
How describe the late Richard S. Arnold and his approach to the law? Was it conservative or liberal? Such questions are not applicable in his case. For his law was neither of the right nor left. A fellow jurist named Antonin Scalia once noted that, among those who study such trends on the court, Richard Arnold was the liberals' favorite conservative and the conservatives' favorite liberal. Such was the quality of his law, which rose above labels.
Like the best law, Richard Arnold's was simply apart. It had no ideology, or anything else that would have got in the way of its natural course. He just let the law speak for itself, which is no easy thing by the time a disputation reaches the highest courts in the land. But his decisions invariably cast a new light that, once he'd let it shine, seemed old wisdom.
Reading one of Judge Arnold's opinions, one might think: Well, of course, there could be no other way to decide the case and steer the law. Everything just fell in place, like the notes in Mozart, as if this were a work of nature rather than man. For his was law from the inside out, allowed to come into fruition.
It's good to know that Richard Arnold and his contributions to American law are being discussed at, yes, the Clinton School of Public Service. There is something delicious about an irony so tart.
Now it is the country's 44th president, Barack Obama, who has the opportunity and duty to choose the next associate justice of the U.S. Supreme Court. And he's made it clear what kind of justice he's looking for. None of that bookishness for him: "I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a casebook. It is about how our laws affect the daily realities of people's lives." And further, the nominee this president picks will have "a quality of empathy, of understanding and identifying with people's hopes and struggles."
In this president's list of desiderata, scholarship comes off second best, maybe third or fourth, certainly well after empathy and understanding and identifying with people in their "hopes and struggles." As for the rule of law rather than by men, an ideal once much prized in America, it went unmentioned by the president. Unless you count his dismissive remarks about abstract legal theory and mere footnotes in a casebook.
Richard Arnold, it occurs to me, must have known every footnote in every case that concerned every question he ever had to decide. Just ask anyone who ever clerked for him. He is said to have written the one and only perfect paper for the most demanding of Harvard's law faculty, the justly revered Abram Chayes. As a judge, the honorable Richard Arnold (honorable in his case was more than a formal title) did not identify with rich or poor or middling, white or black or any other complexion, or any particular group.
His thought was his own, his law the opposite of groupthink. He seemed interested only in following the law to its natural conclusion. "The job of judges," he once said, "is to find the facts and apply the law, not their own wills…"
Something tells me he would have been passed over for the Supreme Court by this president, too. For what was once counted as a virtue in a judge, impartiality, had become a disqualification even by the last decade.
It is definitely a new era. Not that this president isn't something of a traditionalist. Barack Obama's comments about what he's looking for in a member of the nation's highest court would seem to fit quite well into the American anti-intellectual tradition. It's how the law affects people that matters to him, not what it might actually say.
This president knows his law, all right. He used to teach it, and seems comfortable discussing it. More than comfortable: familiar. Indeed, his is the contempt for legal theory that familiarity breeds. His law is a respecter of persons, their hopes and struggles, rather than an independent discipline with a life and reason of its own that a judge is duty-bound to search out, and, having found, must propound.
That is not Barack Obama's approach to the law. A populist, he is interested in its practical effect on people in the here and now, in this age, rather than its abstract principles over the ages. His approach might best be described as the opposite of Richard Sheppard Arnold's: He knows his law from the outside in.
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