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Olympus and the Arkansawyer

Richard Arnold was denied a Supreme Court appointment, but his legacy remains unimpeachable by BY PHILLIP H. MCMATH ARKANSAS LAWYER | September 19, 2010 at 4:10 a.m.

— Judge Richard S. Arnold: A Legacy of Justice on the Federal Bench, by Polly J. Price, Prometheus Books, 466 pages, $25.98.

Richard Sheppard Arnold was a genius. If he wasn’t, then the word has no meaning. And Ms. Polly J. Price, his former clerk, now law professor, has become his biographer in Judge Richard S. Arnold: a Legacy of Justice on the Federal Bench. It’s a fascinating tale, and Ms. Price’s effort is a first-rate and well-written analysis of Richard’s life in the law. Born a scion of one of Arkansas’s most distinguished families, Richard, along with his brilliant brother, Judge Morris “Buzz” Arnold, inherited a bloodline of ability and aptitude. Their grandfather, William Hendrick Arnold, and their father, Richard Lewis Arnold, were great lawyers who founded and maintained the firm of Arnold & Arnold in Texarkana.

W. H., who arose from what one writer has called the “frontier aristocracy,” was born in 1861 amongst the ruins of war and Reconstruction and could only “read the law.” A dedicated autodidact, W.H. vowed that son Richard Lewis would get an immaculate, formal education; in other words, he would go to Phillips Exeter, Yale and Harvard Law. Returning home, Richard Lewis married Janet Sheppard, the daughter of a prominent U.S. senator from Texas. Soon there were two boys and they were to be educated in the same way.

So, Richard Sheppard, born in 1936, the thin, reserved lad from Texarkana, Ark., armed with a phenomenal brain supercharged with a photographic memory, stormed the ramparts of American Eastern Establishment academia in a way that still resonates.He took a classics diploma at Phillips Exeter, a first at Yale (1957) and a first at Harvard Law (1960). (He became fluent in Greek, Latin, Hebrew, French and Italian.) A law school classmate and dear friend, now Supreme Court Justice Antonin Scalia, was known to quip that Richard was “the only one in our class smarter than me.” One professor, Abram Chayes, told a class not to bother with attempting a “perfect paper” because it had already been written by Richard Arnold and would never be done again.

Young Richard soon found himself sitting at the feet of Justice William Brennan, Jr. from 1960-61. He was on America’s legal Mt. Olympus, and it must have been a tad intoxicating to drink the judicial ambrosia among juristic demigods like Earl Warren, Felix Frankfurter, Hugo Black, William O. Douglas, Potter Stewart and John Marshal Harlan II, as they unleashed the thunderbolts of Cooper v. Aaron, Mapp v. Ohio and Baker v. Carr.

Perhaps it was easier to adjust to those altitudes than it was to come down, so when his clerkship ended, Richard found a plateau in the D.C. law firm of Covington & Burling. Perched near the White House, with a partner named Dean Acheson, it was not a bad place to depressurize.

In the summer of 1958 Richard had married Gale Palmer Hussman of Camden, the daughter of Walter Hussman of Palmer Media, and they quickly became a stellar part of the Georgetown haut monde scene.

But, despite his peregrinations and prizes, Richard, like most Arkansawyers, never quite left home, and in 1964 he felt the call and returned.

Back at Arnold & Arnold, he wrote the top Arkansas Bar exam. Then he did environmental work, defended a notorious murderer pro bono, and slogged through other legal chores; in other words, paid his dues. However, it was soon clear what he had on his wonderful mind-politics. In 1966 he ran for Congress against David Pryor. But if there was ever a born politician, it was David. Richard got trounced. He ran again against Ray Thornton in 1972, and got nailed again. Richard was lots of marvelous things, but a politician he was not.

These defeats, as they sometimes are, were good, not bad, and they sent him on to where he belonged-the federal judiciary. He went to work for Senator Dale Bumpers till 1978, when Dale made him a U.S. District Judge.Richard punched his ticket there for about a year, then was nudged upwards by his mentor to the 8th Circuit Court of Appeals. He was not quite back on Olympus, not yet, but he could see it from there.

Then along came a politician from Hope, another South Arkansas boy that had also stormed the walls of exclusivity. Bill Clinton, Richard’s friend, was president. A Supreme Court seat opened in 1993, but went to Ruth Ginsburg, but then another opened in 1994. Not surprisingly, Richard had discreetly spread “forth the tender leaves of hopes.” After all, there was nobody better qualified, no one more deserving, no one more respected than Richard S. Arnold, veteran of the Eighth Circuit Court of Appeals; and, heck, he was from Arkansas, a diamond from the land of diamonds. It was a natural choice for the Natural State and our country.

But, “O, how wretched is that poor man that hangs on princes’s favors.” Or in plainer words, these things are rarely a done deal. Others wanted it, too; one was Stephen Breyer, of theFirst Circuit, sponsored by his close friend, Senator Ted Kennedy. Breyer had been chief counsel on his Judiciary Committee, and Kennedy was leaning hard on the White House for Breyer’s elevation.

Then there was the matter of Richard’s health-he was in remission from non-Hodgkin’s lymphoma. Since such appointments are, indeed, presidential diamonds, President Clinton announced that he had to have a certificate of longevity. So the White House contacted one Dr. Lee Nadler of DFCI (Dana Farber Cancer Institute) of Boston, Mass., to review Richard’s medical records. Dr. Nadler was what Ms. Price calls “a leading expert on Arnold’s disease.” Richard agreed, and the chart was sent only to have Dr. Nadler write back a report with black borders. Clinton called and told Richard, “I certainly want to consider you next time.” Time?! Mr. President, time?! Justice Breyer got the prize, and Richard never hoped again.

Yet Ms. Price does not explain how DFCI and Dr. Nadler were selected, nor does she mention that Stephen Breyer was (and remains) a trustee of DFCI and that Breyer’s wife, Joanna Freda Hare, a Harvard-trained psychologist, was (and remains) on staff at DFCI as a long-standing colleague of Dr. Nadler. Also, the Kennedy family has a long and extremely close relationship with DFCI, where Dr. Nadler remains as a Senior Vice President and Chief of Experimental Medicine. Wasn’t there a conflict of interest, or at the very least an appearance of impropriety? Couldn’t an oncologist not subject to these pressures have been found? Ms. Price avoids confronting these questions by simply not asking them.

In the event, Richard proved the good Dr. Nadler wrong and lived another 10 years. Those were 10 fruitful years that our country and Richard well deserved. However, Ms. Price does note that Dr. Nadler’s medical opinion “was inconsistent with what other doctors had previously stated,”and that Dr. Nadler later “regretted the severity of the wording in the letter, that it had been ‘too harshly phrased.’ ” It’s beyond doubt that Richard S. Arnold was one of the greatest jurists never to sit on our Supreme Court, but it’s still not clear why he was denied that honor.

Additionally, Ms. Price seems a little uncomfortable with Richard’s religious faith. But the fact remains that he was a devout, orthodox, committed Christian. In his Yale senior thesis, “The Emperor Constantine and the Christian Church,” he offers as his answer to why Constantine “recognized and favored the Christian Church,” that “Constantine did what he did, in my opinion, because the Holy Ghost told him to.” It’s a testament to Richard’s academic excellence that his first at Yale survived such an unfashionable assertion.

Indeed, one senses that his biggest disappointment was not in failing to scale Mt. Olympus but in not making it to Rome. Richard became a Roman Catholic in all but name. Divorced and remarried by then, he was never granted Papal dispensation, so he was reduced to daily Mass sans sacraments-he was a Sunday Episcopalian and a Monday-Saturday Catholic.

Richard had a great life and a magnificent career, but it’s disconcerting that an extraordinary man with such gifts was denied these things that mattered so much. Yet, from actually knowing him, it is also consoling to realize that Richard S. Arnold, in this tired world of “vain pomp and glory,” at journey’s end possessed that which really counts:

A peace above all earthly dignities,

A still and quiet conscience.

Phillip H. McMath is a partner with the McMath Law Firm in Little Rock and an oft-published author of articles, plays and books. This review originally appeared in The Arkansas Lawyer and is reprinted with permission.

Perspective, Pages 81 on 09/19/2010

Print Headline: Olympus and the Arkansawyer

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