How Health Concerns Dashed A Judge's Supreme Court Dreams

Which distinguished lower-court judge came extremely close to landing a seat on the U.S. Supreme Court?

The latest batch of presidential papers from the Clinton Administration, recently released to the public, contain some fun nuggets for law nerds. We’ve mentioned a few of them already — e.g., the time that a pre-robescent Elena Kagan, then a White House staffer, dropped the f-bomb in a memo to White House counsel Jack Quinn. Another just came to light today: as reported by Tony Mauro, a pre-robescent John Roberts, then in private practice at Hogan & Hartson, came close to representing President Clinton in the U.S. Supreme Court in Clinton v. Jones.

The papers contain other interesting tidbits too — and some are sad rather than salacious. For example, there’s the story of how a brilliant and distinguished circuit judge came thisclose to landing a seat on the Supreme Court, until health problems derailed his nomination….

Judge Richard Arnold of the U.S. Court of Appeals was one of the most highly respected federal judges in the nation (along with his brother, Judge Morris “Buzz” Arnold, also of the Eighth Circuit). Some have described Richard Arnold using the same sobriquet awarded to Learned Hand: “perhaps the best judge never to serve on the Supreme Court.” Even though he came from the left side of the aisle, Judge Arnold won praise from conservatives too:

Supreme Court Justice Clarence Thomas described Arnold as “a brilliant, brilliant man. . . a model of humility and self-deprecation.” Another justice, Antonin Scalia, said that Arnold’s “carefully reasoned and beautifully written opinions were models of the art of judging. He has been a friend of mine since the days when he finished ahead of me (and first in the class) at Harvard Law School.”

As you can see in the new Clinton papers, President Bill Clinton, who had gotten to know Judge Arnold through Arkansas legal circles, decided to nominate the judge to replace Justice Harry Blackmun when Blackmun retired in 1994. Things got so far along that staffers drafted a speech for President Clinton to deliver announcing Judge Richard Arnold’s nomination (see here, page 14 of the PDF; note that “Eighth District” in paragraph four should really be “Eighth Circuit”).

Alas, Judge Arnold’s health problems caused him to be ruled out of contention before he was ever officially nominated (see page 12 of the PDF, alluding to “health issues”). They are not discussed specifically in these particular papers, but apparently Judge Arnold had been diagnosed with lymphoma. President Clinton felt great sadness over not nominating Judge Arnold to the high court. According to Jeffrey Toobin in The Nine (affiliate link), Clinton wept when he broke the news to Arnold. “I feel your pain,” indeed.

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But not nominating Judge Arnold was, from the perspective of cold-hearted political calculation, probably the right move. Judge Arnold passed away in 2004 from lymphoma. Had he been nominated to the Court and had the same lifespan, he would have served just ten years, a relatively short tenure by SCOTUS standards (which might have created a vacant seat during a Republican administration).

The Clinton papers relating to Judge Arnold can be found here, and papers related to Elena Kagan can be found here. Feel free to check out the papers and let us know about interesting discoveries (by email or in the comments).

UPDATE (4:30 p.m.): For additional commentary, check out this great post by Judge Richard Kopf. As Judge Kopf puts it, “it is a tragedy that Judge Arnold never had the opportunity to sit on the Supreme Court. Our nation is worse off as a consequence.”

Kagan to White House Counsel: I “really f**ked up” [Josh Blackman’s Blog via Non-Sequiturs]
Roberts Considered Representing Clinton in Jones Supreme Court Case [National Law Journal]
Clinton Docs: Kagan Memos, Marc Rich Pardon and John Roberts [National Law Journal]

Earlier: 4 Top Tidbits From The Latest Batch Of Clinton Papers

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