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Judge Richard Arnold: A Legacy of Justice on the Federal Bench

Judge Richard Arnold: A Legacy of Justice on the Federal Bench

by Polly J. Price

In 1994, President Bill Clinton called federal appellate court Judge and fellow Arkansan Richard Sheppard Arnold "the most brilliant man on the federal bench." But for concerns about Arnold’s poor health, Clinton would have nominated him to fill the vacancy on the Supreme Court left by the retirement of Justice Harry A. Blackmun. Indeed, when the Blackmun


In 1994, President Bill Clinton called federal appellate court Judge and fellow Arkansan Richard Sheppard Arnold "the most brilliant man on the federal bench." But for concerns about Arnold’s poor health, Clinton would have nominated him to fill the vacancy on the Supreme Court left by the retirement of Justice Harry A. Blackmun. Indeed, when the Blackmun position on the court opened up, Arnold received the endorsement of more than 100 federal judges—almost 20 percent of the entire federal judiciary. Clinton’s concerns turned out to be well founded, for ten years later Judge Arnold succumbed to the lymphoma that he had battled for almost three decades. At his death, eight Supreme Court Justices published tributes to his fairness, judicial restraint, and eloquent and influential judicial opinions.

Who was Richard Arnold, and why did so many colleagues across the political spectrum hold him in such high esteem? In this carefully researched, insightful biography, law professor Polly J. Price, who served as Judge Arnold’s law clerk, has created a compelling portrait of a man who, like Judge Learned Hand of an earlier era, is widely believed to be one of the best judges never to serve on the Supreme Court.

Through internal court documents, interviews with judges and law clerks, and Arnold’s diaries, Professor Price traces Arnold’s life, career, and political transformation from an elite Southerner with deep misgivings about Brown v. Board of Education to a modern champion of civil rights. Her analysis of Arnold’s leadership in civil rights, especially on First Amendment issues, the death penalty, and claims of individuals against government wrongdoing, tells us much about changes in both southern and national society during his tenure from 1978 to 2004.

An important example of Arnold’s many contributions was his progressive resolution of desegregation in Little Rock, Arkansas, long infamous for the Central High School crisis of the 1950s. Arnold’s work brought closer to an end more than fifty years of federal court supervision of the Little Rock schools.

This book also features excerpts from Arnold’s diary of his clerkship with Supreme Court Justice William Brennan in 1960. Arnold’s diary provides unique insight into this pivotal year of the Warren Court.

As much a history of federal courts in recent decades as it is the life story of one of its best-known judges, this first biography of Judge Richard S. Arnold is a sensitively written, objective account of a man of outstanding intelligence, talent, and integrity.

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Prometheus Books
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6.40(w) x 9.10(h) x 1.50(d)

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JUDGE Richard S. Arnold


Prometheus Books

Copyright © 2009 Polly J. Price
All right reserved.

ISBN: 978-1-59102-711-9

Chapter One

Beginning the Course of Justice

Audacibus annue coeptis.

Look with favor upon a bold beginning.-Virgil

On December 9, 1955, just one year after the Supreme Court's decision in Brown v. Board of Education, Yale Law School hosted a discussion titled "The Difficulties Facing Desegregation." The panel discussion, before an overflow crowd in the law school's auditorium, was sponsored by several campus groups including the Yale NAACP and the Civil Liberties Union. The event was billed as a response to a speech given at Yale the day before by Eugene Cook, the staunchly segregationist attorney general of Georgia, called "The Southern View of Segregation."

At the behest of the Yale Law School Conservative Society, Cook had addressed a "public meeting on segregation." Cook opposed desegregation in any form. He declared that the Supreme Court's recent decision outlawing segregated schools was "held in utter contempt by most Georgians and will not be respected or enforced in my State within the foreseeable future." Cook maintained that the NAACP was a subversive, communist organization, and sought to have the organization outlawed in Georgia.

No one deniedCook had presented an extreme view on the subject. The panel discussion at Yale Law School was proposed as a response to Cook "to present both sides of the debate," a pointed jab at the student Conservative Society for refusing requests to pair another speaker with Cook for a debate that would include a pro-Brown view.

Members of the audience at the Yale Law School that day heard four speakers. Louis Pollak, a Yale law professor and legal adviser to the NAACP (later a federal district judge), presented the view supporting Brown v. Board of Education. He was joined by James Farmer, representing the AFL-CIO. Against this formidable array, the opposing side included Frances Coker, the retired chair of Yale's political science department, and a Yale college student still in his junior year. That college student-Richard Sheppard Arnold-was chosen "for his ability to represent the southern view of desegregation."

Richard Arnold's appearance on the panel was remarkable for several reasons. He was only nineteen years old, the only southerner, and the only undergraduate on a panel of older, more professionally accomplished participants. The sponsoring organizations stated that they had done "everything in their power to assure the best representation to the various approaches to this question," presumably meaning that Richard Arnold was the best representative of the southern view of desegregation, or at least the best one they could come up with.

Although Arnold was headed to Harvard Law School two years in the future, he was not yet trained in law. Louis Pollak, by contrast, taught constitutional law at Yale Law School, after a clerkship with Supreme Court Justice Wiley Rutledge and six years of legal experience in the private sector and with the US State Department. Arnold represented the minority view at Yale at the time-opposition to forced integration of schools in the South. He was already known among his friends in the Yale Political Union as a conservative and an opponent of Brown, but with the "respectable" view in opposition rather than Cook's extremism. When Arnold was asked to represent the southern view in this public discussion, he readily agreed.

By 1955, Arnold had already made a name for himself at Yale as a classics scholar, a champion debater, and a conservative thinker in the tradition of William F. Buckley Jr., who had graduated from Yale five years earlier. It was easy to predict that Arnold would have a notable future. Arnold saw himself with a future in politics, and he wanted to be a United States senator like his grandfather, Senator Morris Sheppard of Texas. Although his classmate Calvin Trillin considered Arnold's Texarkana, Arkansas, roots somewhat "absurd," there was nothing absurd about his prep school record at Phillips Exeter Academy or his record thus far at Yale. In his senior year, Arnold would be elected president of Phi Beta Kappa and would graduate first in his class, collecting numerous academic prizes along the way.

Devout and introspective, Arnold possessed a powerful, curious, and methodical mind. Lean, gangly, and of medium height, Arnold's dark hair and eyes were perpetually accented by a dark coat and tie, which Yale students were then required to wear to dinner. In contrast with most other students, Arnold preferred to wear a coat and tie all the time. Acquaintances who described him at the end of his life noted these remarkable consistencies: Arnold was funny, soft-spoken, and a shy, retiring intellectual. He listened with an intensity others could find unnerving, with his head cocked to the side.

The panel discussion "added four clashing interpretations of the segregation problem" to the views expressed by Eugene Cook the day before. Professor Pollak, the first speaker, argued that Brown was correctly decided and had outlawed segregation in the public schools "to confirm the ethical principle of equality." Arnold was the next speaker. He attacked the view that Brown was correct as a constitutional matter. He claimed that, as Eugene Cook had maintained the day before, the Supreme Court's decision was based not on law but on "sociology." The alleged "psychological damage to Negroes" upon which Brown was based, said Arnold, was a vague concept impossible to prove in a court of law, and insufficient in itself to authorize federal intervention in state affairs. Arnold at times echoed Cook, who had said: "If the Supreme Court could disregard the Constitution today to accomplish a result of which you approve, it likewise can ignore it tomorrow to reach a result of which you disapprove."

Arnold based his response to Pollak on two further grounds. First, Arnold was skeptical that federal intervention could overcome opposition to desegregation as a practical matter. He also believed strongly in a federalism that recognized states' rights in matters of local importance. Brown violated fundamental concepts of federalism, Arnold maintained. As he echoed a few months later in a Yale Political Union debate, "it is a state's right to control an institution so much a part of its interests as education."

The third speaker, James Farmer, acknowledged the practical difficulties of implementing Brown. He highlighted instances of retaliation against black activists by segregationists, and said that he had "nothing but admiration for the men who risk their livelihoods and even their lives fighting racial intolerance." The final speaker, Francis Coker, had been billed as representing the "opposing" side, but largely supported the grounds of the legal decision. He noted that Eugene Cook's speech represented only the views of a "radical minority" of southern opinion.

Of the four, only Richard Arnold criticized Brown v. Board of Education as a matter of constitutional law. But he joined the other three in favor of execution of the ruling on the ground that the Supreme Court had spoken, and its ruling must be followed.

Brown v. Board of Education began a "revolutionary decade" in race relations in the United States. Only a few years after the Yale debate, Arkansas governor Orval Faubus took a public stance against desegregation of the Little Rock public schools. Little Rock would become infamous throughout the world for jarring televised images of angry mobs of whites assaulting young black students, followed a few weeks later by images of the US Army's 101st Airborne approaching the school, ordered there by President Eisenhower in 1957.

Twenty-five years later, Richard Arnold as a federal judge would become a key figure in ongoing federal court litigation over desegregation of the Little Rock public schools. Over that time Arnold had witnessed and helped to shape a transformation of the South as well as the nation. His own transformation from the nineteen-year-old debater at Yale was no less profound.

* * *

Much is dependent on the character and philosophy of an individual judge in the American legal system. Compared to other nations, judges in the United States at all court levels are extremely powerful. As a result, judicial candidates often receive intense scrutiny, not only for evidence of high ethical standards, but also for fundamental beliefs about judicial power and how it ought to be exercised. One of the enduring debates today is about ideology in judges, with much interest in predicting the trajectory of new appointees to the bench based on past political affiliation.

But judges are also known to defy predictions about what kind of jurist they would be. At best, there is an uneasy fit between political positions and judicial philosophy, and both may continue to change over a lifetime. Richard Arnold is a case in point. His early experiences profoundly shaped him and made him the kind of judge he would become. At the same time, the judge who emerged years later is in many ways not what one might have expected, based on Arnold's beginnings. The young Richard Arnold was profoundly conservative on many issues, but especially on the role of the federal government in matters traditionally left to the states.

The debate at Yale in 1955 is merely one illustration of a developing mind devoted to a wide-ranging engagement in politics and American law. Arnold was very much a twentieth-century figure, and he came of age in the midst of a profound revolution in civil rights and civil liberties. His experiences in the cauldron of a rapidly changing society made Arnold a rather different character than might be anticipated from his early years as a student. Arnold's jurisprudence, decades in the future, both flowed from and contrasted with his beginnings.

* * *

Richard Sheppard Arnold was born March 26, 1936, in Texarkana, Texas, where the nearest hospital was located. The family, however, lived on the Arkansas side of this divided city, with a population at that time of around eleven thousand (twenty-five thousand, if the Texas side was included). Texarkana was one hundred and fifty miles from Little Rock by direct rail.

Richard Arnold came from a prosperous south Arkansas family with extensive political ties-"frontier aristocracy," as Jeffrey Toobin described it in his book The Nine: Inside the Secret World of the Supreme Court. The Texarkana Gazette notice of Richard's birth reported that "his grandparents are Senator and Mrs. Morris Sheppard of Washington, D.C., and Mr. and Mrs. William H. Arnold, of Texarkana." His mother, Janet Sheppard Arnold, was the daughter of Senator Morris Sheppard of Texas, one of the leading senators of the era. Senator Sheppard was first elected to Congress in 1902 to replace his father who had died in office. In 1913 he was elected to the Senate as a Democrat from Texas, holding that office until his death in 1941 at age sixty-five, having never lost an election. Sheppard chaired the Senate Military Affairs Committee and was instrumental in preparing for World War II. Within less than a year after Senator Sheppard's death, Richard's grandmother married the other senator from Texas, Tom Connally, who served in the Senate until 1953. Richard's grandfather and step-grandfather were thus in the US Senate for a continuous forty years.

Richard's father, Richard Lewis Arnold, was the son of William Hendrick Arnold, who founded Arnold and Arnold, the leading law firm of south Arkansas. Born in 1861 at the start of the Civil War, William Hendrick Arnold had been admitted to practice law in 1882 after studying on his own. W. H. had served as mayor of Texarkana, president of the Arkansas Bar Association, a delegate to four Democratic national conventions, and was elected to the 1918 Arkansas Constitutional Convention. He was also a founding member of the American Law Institute in 1923 and the subject of a biography published in 2005.

Late in life, W. H. Arnold published a short book of family history that included a biographical sketch of himself and his sons. He took dozens of copies with him on a tour of Europe in 1935, at age seventy-four. He followed the unusual practice of leaving copies at every hotel and restaurant he visited. W. H. soon attracted the notice of a reporter with the London Sunday Express, who termed William "The Man Who Cannot Lose Himself."

Upon his return from the European tour, W. H. resumed his prominent public life. Consistently opposed to many New Deal initiatives of Franklin Roosevelt, W. H. attacked Roosevelt's court-packing plan, writing in a letter to the Arkansas Gazette, "Nothing can be accomplished by the addition of six new justices unless the purpose be to have the court overrule decisions unsatisfactory to the president. The proposal is revolutionary, and coming from the White House, its terms excite amazement in the general public."

William Hendrick Arnold died in 1946 in Texarkana, when Richard Arnold was ten years old. He left among his papers a copy of a talk he gave to the Rodeph Shalom Temple in New York City on the history of the Jewish people. He was a man of wide interests and wide travels; his world was surprisingly broad.

W. H. Arnold was a self-educated lawyer with very little formal schooling. Both his mother and father were college graduates, a rarity for south Arkansas in the 1840s. He certainly would have gone to college if the family could have afforded it, but the family had been ruined financially by the Civil War; at the end of the war the family had lost 90 percent of its wealth.

Feeling the loss of educational opportunities, W. H. Arnold saw that his children were educated in grand style. His youngest son, Richard Lewis, attended Phillips Exeter, Yale College, and Harvard Law School. Upon his return to the family law firm, Richard Lewis joined an older brother as two of the seven members of the local Harvard Club. Yet another son, William H. Arnold Jr., was a Rhodes Scholar. Richard S., like his father, Richard Lewis, was destined for Phillips Exeter Academy, Yale College, and Harvard Law School, and would surpass even his father's academic success. All the men on both sides of Richard's immediate family were lawyers, and Richard, too, became a lawyer because his father expected it. He had, in fact, "never really considered being anything else."

The women in his family were also strong, intelligent, and interested in political matters. William Hendrick Arnold's wife, Kate Lewis Arnold, was active in Democratic Party politics within the constraints of her time. She was elected as a national committeewoman for Arkansas in the Democratic primary of 1932. In 1936, a few months after Richard's birth, Kate Lewis played a key role in a visit to the state by Franklin and Eleanor Roosevelt. As head of the committee to plan Eleanor Roosevelt's visit to Hot Springs, Kate Lewis welcomed the First Lady and spoke briefly at a breakfast in her honor at the Arlington Hotel. Franklin, who had spoken in Little Rock, remained on the train during Eleanor's stop in Hot Springs. Both Roosevelts would be joined by Richard's grandfather, Senator Morris Sheppard, for a train tour through Texas.

Arnold's grandmother, Kate Lewis Arnold, delivered a radio address in Miller County in 1938 in favor of John L. McClellan for United States Senate, against the incumbent Hattie Caraway, the first woman elected to the United States Senate from any state. Kate Lewis was Democratic National Committeewoman from Arkansas at that time. The National Committees of both parties were composed of one man and one woman from each state, elected at the Democratic primary.

Kate Lewis Arnold's radio address took place the day before the election. It was not, she urged, "any issue of one woman against another." Kate Lewis said she was "not opposed to a woman for United States Senator if she is capable of giving that type of service we need. And I say frankly, that if Arkansas has a woman with capabilities for the type of service which Arkansas now needs, I do not know who she is." Caraway's only appearance on the floor of the Senate in debate, Kate Lewis noted, was an address of less than five minutes in opposition to an anti-lynching bill. Kate was unwilling to look past Caraway's questionable effectiveness merely because she was a woman.


Excerpted from JUDGE Richard S. Arnold by POLLY J. PRICE Copyright © 2009 by Polly J. Price. Excerpted by permission.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Meet the Author

Polly J. Price (Atlanta, GA) is professor of law and associate dean of faculty at Emory University School of Law. 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. A graduate of Harvard Law School, Prof. Price served as a law clerk for Richard S. Arnold in the Eighth US Circuit Court of Appeals from 1989 to 1991.

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