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Barnes and... A Conversation with Polly Price

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Polly Price is a professor of law and associate dean at Emory University School of Law in Atlanta, Georgia. She is also an associate faculty member of the Department of History at Emory and the author of Property Rights: Rights and Liberties under the Law. Professor Price served as a law clerk for Richard S. Arnold in the Eight U.S. Circuit Court of Appeals from 1989 to 1991.

TRANSCRIPT

HELLO AGAIN, EVERYONE. THANKS SO MUCH FOR JOINING US. CONNECTIONS HE HAD APLENTY, BUT BACKGROUND WILL TAKE YOU ONLY SO FAR. IN THE WORLD IN WHICH RICHARD S. ARNOLD TRAVELED, BRAINS COUNT FOR A LOT. BACKGROUND AND BRAINS, HE HAD A PLENTY AND NOW THE LIFE AND THE CAREER OF JUDGE RICHARD S. ARNOLD OF ARKANSAS IS TOLD AND COMPELLING IN A MARVELOUS NEW BOOK BY -- THE TITLE OF "RICHARD S. ARNOLD, A LEGACY OF JUSTICE ON THE FEDERAL BENCH" POLLY J. PRICE IS THE AUTHOR. THANKS FOR BEING WITH US.

THANKS FOR HAVING ME.

YOU ARE NOW DEAN OF FACT CUCULLY IS AT EMORY IN ATLANTA, BUT GREW UP IN RUSSELLVILLE.

YES, I CAME BACK TO CLERK FOR JUDGE ARNOLD BEFORE EMBARKING.

AND BY THAT TIME HE WAS ON THE U.S. COURT OF APPEALS.

YES, HE WAS. IT WAS BEFORE HE WAS CONSIDERED FOR THE SUPREME COURT.

FIRST OF ALL, WELCOME BACK HOME AND CONGRATULATIONS ON THE BOOK.

THANK YOU.

SO MUCH GROUND TO COVER. LET'S START WITH FAMILY BECAUSE HE -- IT WAS A REALLY RICH POLITICAL, LEGAL, JUDICIAL BACKGROUND.

IT WAS A FASCINATING BACKGROUND. I LEARNED A LOT ABOUT IT IN THE COURSE OF THIS BOOK, AND I HAVE SAID OFTEN THAT I THINK THE BETTER BOOK MIGHT HAVE BEEN, PERHAPS ABOUT HIS BROTHER AND HE, RICHARD AND MORRIS ARNOLD ARE THE ONLY TWO BROTHERS TO SIT ON THE SAME FEDERAL COURT. THEY CAME FROM A REMARKABLE FAMILY, RICHARD M. MORRIS GRADUATED FROM YALE COLLEGE, HARVARD LAW SCHOOL IN THE 1920s. HIS FATHER BEFORE HIM WAS MAYOR OF TEXARKANA AND CERTAINLY OF THE ARNOLD SIDE, THE BEGINNER OF THE ARNOLD & ARNOLD LAW FIRM. THE OTHER SIDE OF THE FAMILY HAS MORE --

ARNOLD, ARNOLD, ARNOLD, ARNOLD --

AND MANY ARNOLDS. TO THIS DAY, THERE'S ARNOLD & ARNOLD WITH A NUMBER OF RELATIVES THERE.

YEAH.

THE OTHER SIDE OF HIS FAMILY, RICHARD WAS THE GRANDSON OF SENATOR MORRIS SHEPHERD OF TEXAS. SO HE REALLY HAD QUITE A REMARKABLE POLITICAL BACKGROUND, EDUCATIONAL BACKGROUND WITH SOME OF THOSE CONNECTIONS ALREADY LAID OUT FOR HIM.

HE WAS THE GRANDSON OF ONE U.S. SENATOR AND THE STEP GRANDSON OF ANOTHER.

THAT'S RIGHT. HIS GRANDMOTHER, AFTER MORRIS SHEPHERD DIED IN 1944, WITHIN A YEAR HAD MARRIED THE OTHER TEXAS SENATOR, SENATOR JOHN CONLEY. SO BETWEEN THE TWO OF THEM, THERE WAS EITHER A GRANDFATHER OR A STEP GRANDFATHER OF RICHARD ARNOLD IN THE UNITED STATES SENATE FOR NEARLY 50 YEARS.

ONE OF THE -- IT SEEMS ALMOST ORDAINED THAT RICHARD ARNOLD WOULD CLERK AT THE SUPREME COURT. AND HE DID FOR JUSTICE BRENNAN, ALTHOUGH THAT INVOLVED KIND OF A CIRCUITOUS ROUTE. IT APPEARED AT FIRST, ANYWAY, THAT JUSTICE BRENNAN WOULD NOT HAVE THE SERVICES OF JUDGE ARNOLD, OR THAT JUDGE ARNOLD, RATHER, WOULD CLERK FOR ANOTHER JUSTICE INSTEAD.

JUDGE ARNOLD GRADUATED FIRST IN HIS CLASS AT HARVARD LAW SCHOOL AND THIS IS A CLASS, AS I WRITE ABOUT IN THIS PARTICULAR BOOK, THAT INCLUDED JUSTICE ANTONIN SCALIA AND OTHER WELL-KNOWN LAW PROFESSORS. AT THAT TIME, IT WAS CONSIDERED THE HIGHEST HONOR TO CLERK FOR JUSTICE FRANKFORTER. AND AS NUMBER ONE IN THE CLASS, IT SEEMS THAT'S WHO ARNOLD WOULD CLERK FOR. BUT WORD GOT BACK TO ARNOLD THAT FRANKFORTER THOUGHT ARNOLD WAS TOO CONSERVATIVE FOR HIM AND SO HE SELECTED SOME OTHER JUSTICES. AND THEN IRONICALLY RICHARD CLERKS FOR THE FAR MORE LIBERAL, AS IT TURNS OUT, WILLIAM BRENNAN. HE HAD A SUPREME COURT CLERKSHIP IN 1960 AND IN TERMS OF THE RESEARCH I DID FOR THE BOOK, THAT WAS ONE OF THE MOST FASCINATING ASPECTS TO SEE IN THE EARLY YEAR OF THE WARREN COURT.

HOW DID THAT SHAPE HIM, THAT TIME WITH BRENNAN?

IT SHAPED HIM IN THE FOLLOWING SENSE, WHEN RICHARD ARNOLD GRADUATED FROM HARVARD AND HAD BEGUN THE CLERKSHIP, HE REALLY HAD SOME -- WHAT WE WOULD THINK OF IN RETROSPECT OF VERY CONSERVATIVE VIEWS ON STATE POWER, ON SCHOOL DESEGREGATION, ON THE ROLE OF THE SUPREME COURT, ON THE RIGHTS OF FREEDOM OF ASSOCIATION AND SPEECH FOR COMMUNIST. WE MIGHT SAY THEY WERE FAIRLY CONSERVATIVE. IT'S CLEAR FROM HIS DIARY THAT HE KEPT THAT YEAR WITH JUSTICE BRENNAN, HE HAS A NEW CONCEPTION. I THINK HE'S INFLUENCED NOT ONLY BY JUSTICE BRENNAN, THE TWO BECAME LIFE LONG FRIENDS AND CORRESPONDED THE REST OF THEIR LIVES. I THINK HE'S NOT ONLY INFLUENCED BY THAT BUT THESE CASES BECAME REAL TO HIM FOR THE FIRST TIME, SEEING THEM ON THE COURT AND TALKING TO THE JUSTICE ABOUT THEM.

TO WHAT EXTENT IS IT POSSIBLE THAT EACH SHAPED THE OTHER A BIT?

THAT'S POSSIBLE.

BECAUSE BRENNAN STARTED OUT AS A LITTLE MORE CONSERVATIVE THAN HE --

THAT IS POSSIBLE. AND I THINK IT -- IT'S DIFFICULT TO TELL FROM -- FROM WHAT RICHARD ARNOLD, OF COURSE, WAS ALWAYS A VERY MODEST PERSON, AND THAT'S TRUE EVEN IN PERSONAL DIARIES THAT HE KEPT. SO -- BUT IT IS EVIDENT THAT THERE WERE SOME OCCASIONS ON WHICH IT LOOKED LIKE JUSTICE BRENNAN WAS INFLUENCED BY THE ADVICE OF HIS YOUNG LAW CLERK OR AT LEAST HAD CONSIDERED IT ON SOME OF THESE CASES. SO I THINK THAT IS POSSIBLE. AND CERTAINLY AS THE YEARS PROGRESSED AND FOLLOWING THE CORRESPONDENCE BETWEEN THE TWO, I THINK YOU DO SEE A LOT OF MUTUAL ADMIRATION.

IT'S CUSTOMARY FOR JUSTICES TO STAY IN CONTACT WITH THEIR CLERKS. SCROLLING THROUGH JUSTICE BRENNANS PAPERS, I NOTED THAT OF ALL THE CLERKS THAT JUSTIN BRENNAN HAD ON HIS CAREER ON THE COURT, 30 YEARS, HE AND JUSTICE ARNOLD WERE VERY CLOSE. SEVEN FOLDERS AS COMPARED TO THE ONE OR TWO OR THREE, COMPARED TO THE CORRESPONDENCE THAT HE HAD WITH HIS OTHER CLERKS. YOU HAD ACCESS TO THAT?

I DID HAVE ACCESS TO IT. IT WAS A WONDERFUL PART OF THE BIOGRAPHY TO HAVE THIS ENORMOUS, OVER A SPAN OF TIME, OF 40 YEARS, HISTORY. AND WHAT THEY WOULD TALK ABOUT WOULD BE EVERYTHING FROM RICHARD ARNOLD WOULD SEND HIM BIRTH ANNOUNCEMENTS FOR HIS CHILDREN, WOULD SEND HIM ARTICLES THAT HE HAD WRITTEN, WOULD TALK ABOUT FAMILY DEVELOPMENTS, ASK ABOUT HIS FAMILY. SO A LOT OF PERSONAL INFORMATION.

SOULFUL?

YES. AND IT'S CONTAINED IN THAT IN WAYS THAT I I DON'T THINK I WOULD HAVE HAD ACCESS TO OTHERWISE. BRENNAN'S LETTERS BACK ARE EQUALLY SORT OF SHARING OF FAMILY CONCERNS AND, YOU KNOW, REFLECTIONS ON WHAT'S HAPPENING, YOU KNOW, THE EVENTS OF THE DAY AND SO FORTH. SO I DO THINK IT IS UNIQUE FROM THE PERSPECTIVE OF OTHER LAW CLERKS IN THE SHEER VOLUME OF IT, AND THE FACT THAT THEY WOULD WRITE ABOUT SUCH PERSONAL ISSUES WITH EACH OTHER.

WELL, AS ONE MIGHT EXPECT AFTER A TIME WITH -- AT THE COURT, THERE WAS SOMETIME WITH THE WHITE SHOE FIRM THERE IN WASHINGTON BUT FAIRLY SOON BACK TO ARKANSAS. AND A NEW PHASE IN HIS LIFE.

HE SAID, AND HE TOLD BRENNAN BEFORE HE CAME BACK TO ARKANSAS, HE SAID HIS LIFE LONG AMBITION WAS TO BE A SENATOR. HE WANTED TO BE A UNITED STATES SENATOR FROM ARKANSAS. SO HE PRACTICED LAW FOR A FEW YEARS IN WASHINGTON TO GET THE EXPERIENCE, CAME BACK TO REJOIN ARNOLD & ARNOLD AND THEN OVER THE NEXT 10 YEARS PRACTICED LAW AND RAN FOR CONGRESS TWICE.

TWICE.

UNSUCCESSFULLY.

MM-HMM.

HE WOULD SAY AT THE END OF HIS LIFE THAT IT HAD BECOME CLEAR TO HIM IF HE WANTED TO BE IN PUBLIC SERVICE, HE NEEDED AN APPOINTED OFFICE RATHER THAN AN ELECTED ONE.

HE OOZED INTELLECT. THOSE OF US WHO CAN REMEMBER HIS CONGRESSIONAL CAMPAIGNS SOMETIMES FOUND HIM A BIT -- AND HE TRIED HARD, AND I DON'T WANT TO SAY THAT HE DIDN'T HAVE THE COMMON TOUCH, BUT THERE WERE AWKWARD MOMENTS SOMETIMES ON THE CAMPAIGN TRAIL, ALMOST AS IF HE WANTED TO DELIVER HIS SPEECHES IN GREEK.

I CAN IMAGINE THAT AND I REMEMBER HEARING THAT REACTION FROM SEVERAL OTHER PEOPLE THAT I TALKED WITH IN THE COURSE OF PREPARING THIS BIOGRAPHY. I THINK FOR MANY PEOPLE, IT'S HARD TO IMAGINE HIM AS ANYTHING OTHER THAN WHAT HE ENDED UP DEVOTING HIS LIFE TO, THE FEDERAL JUDICIARY, THE FEDERAL JUDGE. IT'S HARD TO IMAGINE HIM IN A MORE POLITICAL ROLE. SO IT -- IF HE SEEMED DESTINED FOR SOMETHING BECAUSE OF HIS INLINTELLECT, THIS SEEMS LIKE TS WAS THE NICHE WHERE HE WAS MEANT TO BE.

HE DIDN'T MAKE IT TO CONGRESS, BUT HE MADE IT TO THE CONSTITUTIONAL CONVENTION IN ARKANSAS.

HE DID.

AND HE WAS INSTRUMENTAL.

HE WAS INSTRUMENTAL NOT ONLY IN THAT CONSTITUTIONAL CONVENTION, BUT HE WAS A BEHIND-THE-SCENES PLAYER FOR OTHER ARKANSAS GOVERNORS, INCLUDING SENATOR DALE BUMPERS. AND WHEN BUMPERS WAS ELECTED TO THE SENATE, HE TOOK RICHARD ARNOLD WITH HIM, AND I THINK RICHARD ARNOLD -- LOOKING BACK AT SOME OF HIS REFLECTIONS OF THAT TIME PERIOD, LOVED NOTHING MORE THAN BEING IN THE SENATE, READING THE CONGRESSIONAL ROLE. HE WASN'T THERE IN THE ROLE HE ORIGINALLY ENVISIONED BUT HE WAS THERE IN A CAPACITY THAT I THINK HE REALLY ENJOYED. IT WAS TRUE THAT, THAT HE WAS ABLE TO GET APPOINTED TO THE FEDERAL COURT.

HE WAS NOT -- NOT TO DIMINISH ANY OTHER ASSISTANT TO ANY OTHER SENATOR, BUT IF YOU WERE IN WASHINGTON, YOU COULD SEE HOW CLOSE THE TWO MEN WERE. HE WAS ALWAYS AT MR. BUMERN'S ELBOW, I MEAN IN THE OFFICE.  -- BUMPERS ELBOW, I MEAN IN THE OFFICE, AND DRAFTING LEGISLATION.

HE SAID THAT ARNOLD WAS HIS RIGHT HAND. RICHARD ARNOLD DRAFTED LEGISLATION FOR HIM. PART OF THAT WAS RICHARD'S -- HIS SORT OF ENORMOUS INTELLECT AND HIS GRASP OF PUBLIC POLICY ISSUES AND HOW TO CRAFT LEGISLATION. I THINK ANOTHER PART OF IT WAS HE REALLY -- RICHARD ARNOLD JUST ENJOYED THAT AND FOR THE REMAINDER OF HIS LIFE WOULD READ THE CONGRESSIONAL RECORD EVERY DAY AS A PASTIME.

LET'S GO ON TO THE JUDICIAL YEARS. AGAIN, IT'S ALMOST FOREORDAINED THAT WHEN AN OPENING GAME AND THERE WAS A DEMOCRATIC PRESIDENT, WHEN AN OPENING DEVELOPED, THAT HE WOULD GO TO THE DISTRICT COURT.

MM-HMM.

SURE ENOUGH.

AND CARTER'S APPOINTMENTS WERE ANOTHER PART OF THIS RESEARCH FOR THIS BOOK THAT I FOUND FASCINATING. JIMMY CARTER WAS, OF COURSE, A ONE-TERM PRESIDENT. SO HERE HE HAS FOUR YEARS, BUT HE REALLY CHANGED THE FACE OF THE FEDERAL JUDICIARY, EVEN WITHOUT THE OPPORTUNITY TO APPOINT SOMEONE TO THE SUPREME COURT. CARTER NEVER HAD THAT OPPORTUNITY, BUT HE HAD AN OPPORTUNITY TO DO SOMETHING FAIRLY REMARKABLE AT THE DISTRICT COURT AND COURT OF APPEALS LEVEL. AND, FOR EXAMPLE, HE SAID WHEN HE WAS -- WHEN HE WAS ELECTED, HE SAID ONE OF THE THINGS I WANT TO DO IS BE SURE THAT WE HAVE MORE WOMEN AND MINORITIES IN THESE POSITIONS. AND HE WAS REMARKABLY EFFECTIVE IN THAT. BY 1976, WHEN HE HAD BEEN ELECTED, ONLY SIX WOMEN HAD EVER SERVED IN THE FEDERAL JUDICIARY, EVER, STARTING FIRST ONE WITH AN APPOINT BY FRANKLIN DELNOR ROOSEVELT AND THEN ANOTHER ONE A FEW YEARS LATER, AND SO FORTH. WELL, IN FOUR YEARS JIMMY CARTER ADDED 40 WOMEN TO THAT, BRINGING THE TOLLAL TO 46. AND THATTOR -- THE TOTAL TO 46. AND THAT'S A REMARKABLE RECORD IN FOUR YEARS. HE HAD SIMILAR ACCOMPLISHMENTS IN TERMS OF NUMBERS, IF YOU LOOK AT THE NUMERIC REPRESENTATION FOR AFRICAN-AMERICANS AND MINORITIES. SO WITHIN THAT, YOU HAVE RICHARD ARNOLD GETTING NOT ONE BUT TWO APPOINTMENTS FROM JIMMY CARTER. DISTRICT COURT AND TO THE COURT OF APPEALS.

HE WAS BARELY ON THE DISTRICT BENCH FOR A YEAR.

JUST OVER A YEAR. IN FACT, IT WAS LESS THAN A YEAR WHEN THE BEHIND-THE-SCENES WORK BEGAN AND THE FBI BEGAN ITS SECOND INVESTIGATION FOR THE ELEVATION TO THE 8 8th CIRCUIT. SO IT WAS -- SENATOR BUMPER SAID IT SEEMED CLEAR TO HIM THAT'S REALLY WHERE RICHARD ARNOLD NEEDED TO BE, IF NOT ULTIMATELY THE SUPREME COURT, THAT BECAUSE OF HIS INTELLECT AND HIS ABILITIES THAT HE REALLY WANTED HIM TO BE ON THE 8th CIRCUIT.

LET'S LOOK AT THE JURISPRUDENCE BOTH AT THE DISTRICT AND THE 8 8th DISTRICT. LET ME TOSS IT OUT, THERE LITTLE ROCK SCHOOLS.

LITTLE ROCK SCHOOLS WERE PAT OF HIS LEGACY IN THAT HE SAT ON -- PART OF HIS LEGACY IN THAT HE SAT ON THOSE CASES FOR ABOUT 24 YEARS AS A SUPERVISORY CAPACITY AS AN 8th CIRCUIT JUDGE. HE HAD SEVERAL DECISIONS THAT WERE WHAT I WOULD CONSIDER PIVOTAL IN THE COURSE OF HOW THAT -- THIS -- HOW THE DESEGREGATION SUITS ULTIMATELY ARE RESOLVED. HE WAS SOMETHING LIKE 28 SEPARATE APPEALS CAME THROUGH HIS COURT AND HE WROTE 16 OF THOSE OPINIONS. I THINK THE OTHER JUDGES ON THE EIGHTH CIRCUIT, THE EIGHTH CIRCUIT, OF COURSE IS ARKANSAS UP TO MINNESOTA AND INCLUDES THE DAKOTAS AND IOWA, NEBRASKA. THE OTHER JUDGES WERE NOT FROM ARKANSAS. HE WAS THE SOLE REPRESENTATIVE AT MANY POINTS IN TERMS OF WHAT WAS HAPPENING IN THE LITTLE ROCK SCHOOL CASES. I THINK THEY DEFERRED TO HIM NOT ONLY BECAUSE OF HIS INTELLECT AND HIS PERSUASIVE ABILITY AND HIS REASONING ABOUT WHAT SHOULD HAPPEN IN THESE CASES BUT ALSO BECAUSE HE WAS HERE ON THE GROUND. HE KNEW ARKANSAS POLITICS AND WAS PROBABLY SEEN AS A REPPIVE OF ARKANSAS FOR THESE OTHER -- REPRESENTATIVE OF ARKANSAS FOR THESE OTHER JUDGES ON THE COURT.

HOW DID HE HANDLE DEATH PENALTY CASES? HOW DID HE REGARD THOSE?

HE HANDLED THOSE WITH GREAT GRAVITY AND I HAVE AN ENTIRE CHAPTER IN THE BOOK DEVOTED TO THAT BECAUSE IT WAS DURING THIS TIME PERIOD THAT HE WAS ON THE COURT FOR NEARLY 25 YEARS. THERE WERE 90 EXECUTIONS OF PRISONERS WHO HAD BEEN EXECUTED DURING THIS TIME PERIOD. AND OF THOSE CASES, HE HEARD MANY, MANY, MANY OF THOSE. HE WOULD OCCASIONALLY BE IN DISSENT, BELIEVING THAT A PARTICULAR PRISONER EITHER DESERVED A NEW TRIAL OR PERHAPS DID NOT DESERVE THE DEATH PENALTY OR SHOULD HAVE A NEW CHANCE TO MAKE THE CASE BEFORE THE COURT. BUT MORE OFTEN THAN NOT, HE WAS IN THE POSITION OF AFFIRMING A DEATH SENTENCE BUT HE ALWAYS GAVE THEM GREAT CARE. I MEAN, HE CAREFULLY STUDIED THOSE CASES, SPENT MORE TIME ON DEATH PENALTY APPEALS THAN JUST ABOUT ANY OTHER KIND OF CASE. AND I THINK -- SO I THINK THEY -- I DON'T KNOW WHAT HE REALLY FELT ABOUT THE DEATH PENALTY, BUT JUST THE AMOUNT OF TIME AND CARE HE SPENT MAKES ME THINK THAT IT TROUBLED HIM GREATLY.

THE -- WELL, I WAS GOING TO -- HIS OTHER GREAT PAL, AND MR. BRENNAN AND MR. BLACKMAN, JUSTICE BLACKMAN, RATHER FAMOUSLY AT ONE POINT TALKED ABOUT THE MACHINERY OF DEATH AND HE WOULD NO LONGER TINKER WITH THE MACHINE OF DEATH. FROM HIS PAPERS, HIS DIARIES, HIS WRITINGS, DO WE KNOW IF -- IF THE MORALITY OF THE DEATH PENALTY, DID HE WRESTLE WITH THAT, JUDGE ARNOLD?

I THINK -- I KNOW THAT HE SORT OF WRESTLED WITH THE MORALITY OF IT. WHAT HE DID NOT DO WAS EVER SPEAK PUBLICLY OR EVEN RARELY, YOU KNOW, RECORD HIS PRIVATE THOUGHTS ABOUT IT, ABOUT WHAT HE THOUGHT , ABOUT WHAT HE WOULD DO IF HE WAS A POLITICIAN WITH THE DEATH PENALTY, WHICH HE WOULD BE IN FAVOR OR WOULDN'T BE. I KNOW THAT HE ASKED TO BE NOTIFIED ON NIGHTS OF EXECUTIONS. HE WOULD STAY AWAKE AND STAY UP. HE ASKED HIS CLERKS, WHO WOULD BE AT THE OFFICE SORT OF WAITING TO SEE IF THERE WERE ANY LAST-MINUTE APPEALS. HE WANTED TO BE NOTIFIED ONE WAY OR ANOTHER WHEN IT WAS OVER, IF THE EXECUTION TOOK PLACE OR IF -- IF THERE WERE ANY SORT OF LAST-MINUTE APPEALS THAT WERE FILED. HE WAS EXTREMELY CAREFUL ABOUT THOSE BECAUSE I THINK HE -- HE WAS A GREAT RESPECTER OF LIFE. AND HE RECOGNIZED THAT IF MISTAKES WERE MADE AND MISTAKES, YOU KNOW, ARE AHEAD IN THE JUDICIARY AND HE UNDERSTOOD THAT, THAT IF MISTAKES ARE MADE WHEN AN EXECUTION IS IMMINENT THOSE AREN'T FIXABLE.

ABORTION WAS ANOTHER DIFFICULT THING FOR HIM.

VERY DIFFICULT. HE HAD AS ONE REPORTER HAS SUGGESTED THAT THE EIGHTH CIRCUIT, INCLUDING MISSOURI, NEBRASKA, ARKANSAS, OF COURSE, BUT ALSO IOWA, WAS A VERY ACTIVE CRADLE OF CASES ABOUT ABORTION THAT ULTIMATELY WOULD GO ON TO THE SUPREME COURT. BEFORE THEY GET THERE, THOUGH, THEY STOP AT THE EIGHT CIRCUIT COURT OF APPEALS AND VERY OFTEN, RICHARD ARNOLD WAS EITHER IN THE DISSENT OR WRITING AN OPINION ON PARTICULAR ISSUES. AND THOSE END UP BEING, IF YOU WILL, TEST CASES BEFORE THEY GET TO THE SUPREME COURT. IT'S A CHANCE FOR THE JUDICIARY TO REASON ITS WAY TO A RESULT THAT SOMETIMES COULD BE VERY INFLUENTIAL ON THE SUPREME COURT. IN ABORTION CASES, IN PARTICULAR, YOU SEE THAT ON OCCASION. YOU SEE A COUPLE OF TIMES IN WHICH RICHARD ARNOLD'S DECISION IN FAVOR OF REPRODUCTIVE RIGHTS OR IN FAVOR OF A WOMAN'S RIGHT TO CHOOSE IN A PARTICULAR CIRCUMSTANCE WOULD END UP BEING INFLUENTIAL ON THE COURT. YOU ALSO SEE AN INSTANCE -- AND THIS HAS TO DO WITH THE -- A GAG RULE THAT MISSOURI WANTED TO IMPOSE UPON PHYSICIANS, IF YOU WERE PHYSICIANS EMPLOYED IN THE STATE'S HOP, COULD YOU NOT COUNSEL IN FAVOR OF ABORTION. RICHARD ARNOLD THOUGHT THAT FLATLY VIOLATED FIRST AMENDMENT AND SAID SO, BUT THE SUPREME COURT HAS NEVER AGREED WITH HIM ON THAT PARTICULAR ISSUE.

AND REVERSED HIM ON ANOTHER ONE AND THAT INVOLVED AN ARKANSAS CASE, THE ARTS EDUCATIONAL TELEVISION NETWORK.

THAT'S RIGHT. YES. I THINK RICHARD ARNOLD WAS PROBABLY MOST KNOWN FOR HIS FIRST AMENDMENT DECISIONS AND THAT ONE IN PARTICULAR THAT YOU ARE REFERRING TO HAD TO DO WITH WHETHER RALPH FORBES, THAT SOME MAY REMEMBER, WAS A PERENNIAL POLITICAL CANDIDATE BACK IN THE '80s AND '90s, WOULD -- WOULD HE BE REQUIRED -- WOULD AETN HAVE TO INCLUDE HIM AS PART --

A DEBATE.

PART OF A DEBATE AND RICHARD ARNOLD THOUGHT THE ANSWER TO THAT WAS YES AND ULTIMATELY THE SUPREME COURT SAID THE ANSWER TO THAT WAS NO. SO HE -- BUT HE WAS -- IF HE WAS CLOSE TO AN ABSOLUTIST ON ANYTHING, IT WAS ON THE FIRST AMENDMENT, AND THERE IS WHERE I THINK JUSTICE BRENNAN WAS AN INFLUENCE ON HIM, BUT ALSO HUGO BLACK, A SUPREME COURT JUSTICE THAT HE KNEW FROM THAT CLERKSHIP.

RARELY HAS ANY JURIST GONE SO FAR SO FAST. NOT MERELY IN DISTANCE TRAVELED BUT IN THE ESTEEM OF THE LEGAL ESTABLISESTABLISHMENT THERE, I Y BROTHERHOOD. HIS REPUTATION WAS STELLAR AT THE DISTRICT, AT THE APPELLATE LEVEL AND AT THE SUPREME COURT TOO, AND HIS PASSING THERE WAS -- WELL, EVEN -- WE HAVEN'T EVEN TALKED ABOUT HIS -- JUST MISSED THE SUPREME COURT A COUPLE OF TIMES.

MM-HMM. HE -- THE -- THIS REPUTATION IS REALLY SOMETHING THAT I THINK IS NOT EQUALED IN -- WITH ANY OTHER MODERN DAY JUDGE THAT I'M AWARE OF. THERE'S CERTAINLY ANY NUMBER OF VERY EXCELLENT, VERY ABLED JUDGES BUT THERE ARE FEW, IF ANY, WHO REALLY COULD COMMAND THE RESPECT LIKE RICHARD ARNOLD DID FROM BOTH SIDES OF THE POLITICAL SPECTRUM. SO THAT, FOR EXAMPLE, WHEN HE WAS VERY PUBLICLY IN CONTENTION FOR A SUPREME COURT SPOT, HE HAD -- HE HAD WILLIAM F. BUCKLEY FROM THE CONSERVATIVE SIDE WRITING EDITORIALS THAT HE SHOULD BE PUT ON THE BENCH. HE HAD LIBERALS IN HIS CAMP. I THINK IT'S REMARKABLE FOR A MODERN DAY JUDGE, PARTICULARLY WHEN WE ARE TALKING ABOUT SUPREME COURT, BECAUSE WHEN WE ARE TALKING ABOUT SUPREME COURT SEATS, IT TENDS TO BECOME VERY POLARIZING, BASED UPON THE POLITICAL PERSUASION OF THE PERSON WHO IS DOING THE APPOINTING. SO I THINK IT'S VERY RARE TO SEE SOMEONE WHO HAS THE ABILITY TO APPEAL TO SORT OF BOTH SIDES OF THE POLITICAL DIVIDE, BUT RICHARD ARNOLD WAS ABLE TO DO THAT.

AND I THINK YOU QUOTED JUSTICE SCALIA, HE WAS EVERY LIBERAL -- HE WAS THE LIBERAL'S FAVORITE CONSERVATIVE AND THE CONSERVATIVE'S FAVORITE LIBERAL.

MM-HMM.

IN SOME WAYS, HE DIDN'T WANT EITHER LABEL, REALLY. HE WAS KIND OF ABOVE IT.

HE WAS, BUT IT ALSO -- IT CONCERNED HIM THAT -- THAT JUDGES MIGHT BE CONSIDERED ACTIVISTS, JUDICIAL ACTIVISTS OR CONSERVATIVES OR LIBERALS. HE REALLY THOUGHT THAT THOSE TERMS DID NOT FIT THE PRACTICE OF JUDGING. I THINK FOR HIM, IT WAS TRUE. I THINK HE TRIED VERY HARD TO REACH DECISIONS THAT WERE BASED UPON PRECEDENCE AND HE WAS A GREAT RESPECTER OF FOLLOWING WHAT THE SUPREME COURT DIRECTED, WHEN YOU COULD, WHEN IT WAS CLEAR, WHAT YOU SHOULD HAVE DONE, AND HE WAS A GREAT RESPECTER OF FOLLOWING THE PRECEDENT OF HIS OWN COURT. SO HE WOULD BE THE FOUR FOURTHET FROM WHAT MOST PEOPLE WOULD THINK OF AS A JUDICIAL ACTIVIST. ON THE OTHER HAND, IF THE DEFINITION OF A JUDICIAL ACTIVIST IS ONE WHO WILL STRIKE DOWN GOVERNMENT AGENCY IN THE NAME OF THE CONSTITUTION, THEN HE WAS PERFECTLY WILLING TO DO IT WHEN HE SAW AN APPROPRIATE INSTANCE.

HIS HEALTH, IT IS ACCEPTED KEPT HIM FROM THE COURT, THE HIGHEST COURT. IT HAD TO BE CONSIDERED AND I'M TOLD THAT MR. CLINTON AT ONE POINT WEPT THAT HE COULD NOT -- THAT HIS HEALTH WAS SUCH THAT JUDGE ARNOLD COULD NOT GO TO THE HIGH COURT. YOU WRITE ABOUT THAT.

I DO. IT'S AN INTERESTING STORY FOR ME, AND SOME OF IT IS -- I HAD ACCESS TO SOME PAPERS HERE AT THE CLINTON PRESIDENTIAL LIBRARY AND ALSO INTERVIEWS WITH PERSONS INVOLVED IN IT. IN 1993, AND 1994, THERE WERE TWO OPENINGS. THE FIRST OPENING JUSTICE BYRON WHITE HAS RESULTED IN RUTH BADER GINSBERG BEING APPOINTED BUT THE SECOND ONE, JUSTICE HARRY BLACKMAN'S SEAT, I THINK THERE WAS A LOT OF SUPPORT FROM WITHIN THE CLINTON ADMINISTRATION, FROM CLINTON HIMSELF, FROM JUDGES FOR RICHARD ARNOLD TO FILL THAT SEAT. IT MADE A LOT OF SENSE IN MANY WAYS, JUSTICE BLACKMAN HAD COME FROM THE 8th CIRCUIT. THERE WAS CURRENTLY NO SUPREME COURT JUSTICE REPRESENTING THAT AREA, IF YOU WILL. AND I THINK CLINTON REALLY BELIEVED THAT ARNOLD WAS THE MOST QUALIFIED AND NOT TO TAKE ANYTHING AWAY FROM STEVEN BREYER OR RUTH BADER GINSBERG, THAT HE WAS THE MOST QUALIFIED, BUT IT CAME DOWN TO HIMSELF. CLINTON WROTE IN HIS BOOK THAT HAD IT NOT BEEN FOR ARNOLD'S HEALTH PROGNOSIS WHICH WAS A LIFE LON LONG LIMB PHONEA. THERE WAS -- LYMPHOMA. THERE WAS A PHYSICIAN WHO HAD WRITTEN A LETTER TO PRESIDENT CLINTON THAT WAS FAIRLY NEGATIVE ABOUT HIS PROGNOSIS. SO CLINTON SAID THAT, YOU KNOW, HAD IT NOT BEEN FOR, THAT HE WOULD HAVE AND WOULD HAVE LIKED TO HAVE PUT HIM ON THE SUPREME COURT.

OF COURSE, HE DIED IN 2004 OF HIS AILMENT. HE -- HE DIDN'T CONCEAL IT, NEITHER DID HE ADVERTISE THE FACT THAT HE WAS A SPIRITUAL MAN. HE WAS A LIFE LONG EPISCOPAL MAN. HE FLIRTED WITH CATHOLICISM, AND OPENEDLY CONTEMPLATED TO CONVERTING BUT NEVER WENT THAT FAR. WHAT DOES THAT TELL US ABOUT HIM?

WELL, I THINK IT TELLS US THAT HIS PUBLIC LIFE MUST HAVE BEEN VERY COMPLICATED IN SOME WAYS BECAUSE OF HIS DEVOUT INNER LIFE AND THAT PUBLIC LIFE WOULD REQUIRE HIM TO TAKE POSITIONS IN CASES THAT, YOU KNOW, MIGHT OR MIGHT AGREE WITH HIS -- WITH HIS RELIGIOUS FAITH AND YET YOU REALLY DON'T EVER SEE PUBLIC STATEMENTS ABOUT THAT. AND THE ONLY WAY YOU WOULD REALLY KNOW ABOUT THE DEVOUT INNER LIFE IS IF YOU WERE SORT OF AMONG HIS INNER CIRCLE OF FRIENDS. HE WOULD NOT VOLUNTEER BUT IF YOU ASKED HIM, OF COURSE HE WOULD TELL YOU ABOUT HIS SPIRITUAL JOURNEY. BUT, YES, I THINK IT WAS -- IT'S CLEARLY SOMETHING THAT'S MARKED HIM THROUGHOUT HIS LIFE. IT WAS NOT AN END OF LIFE CONVERSION.

NO.

IT'S VERY CLEAR EARLY ON AND MAYBE, IN FACT, EVEN AS EARLY AS -- WHEN HE WAS 19 YEARS OLD AND HIS MOTHER DIED, IT WAS ALREADY CLEAR THAT SPIRITUALITY WAS AN IMPORTANT PART OF HIS LIFE.

A LEGACY OF JUSTICE ON THE FEDERAL BENCH, JUDGE RICHARD S. ARNOLD. DEAN POLLY PRICE, THANKS SO MUCH FOR BEING HERE.

THANKS FOR HAVING ME.

THANK YOU FOR JOINING US. SEE YOU NEXT TIME.

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