Joel Jacobsen

South Carolina has been having a public dust-up about its almost-unique system of selecting judges: the legislature picks them from a list assembled by an outside committee.  (Virginia is the only other state that does it that way.)  One legislator described the way the committee selects candidates for the list: "It's, 'Well, I went to law school with this person or this person's mother baby-sat me or we went to the same fraternity together.'"

Well, that's what "merit selection" means.

Picking judges by way of political connections doesn't necessarily produce bad judges, of course.  I was reminded of that when I read that Clarence Thomas recently gave a speech honoring the late Richard Sheppard Arnold, an Arkansas-based judge of the Eighth Circuit (whose brother still serves on that court).

Thomas's speech isn't posted on the Supreme Court website's repository of the justices' speeches - why isn't that a surprise? - but we have a description from the Springdale Morning News.  (At least I think the paper is published out of Springdale [=Tyson, with some Wal-Mart thrown in] - like so many online editions today, it has a logo instead of a masthead and seeks to downplay its geographical limitations.)

Supreme Court Justice Clarence Thomas remembered a late federal court judge from Arkansas on Friday as "perhaps the most outstanding judge in his time" for championing individual liberties and judicial restraint.

In a 35-minute speech to the University of Arkansas at Little Rock's William H. Bowen School of Law, Thomas praised Richard Sheppard Arnold's judicial style and sparingly offered his own opinion.

"He adhered to a well-defined philosophy of classical liberalism -- stressing individualism and skepticism of large government," said Thomas, the guest speaker for a lecture series bearing the Arnold family's name.

That actually sounds more like the way Thomas prefers to see himself, but still.  Arnold was an interesting guy, even if he did tend to favor bow ties.   Here's the brief biography, taken from public sources:

Arnolds have practiced law for a century in Texarkana (located, as the name is meant to convey, near the junction of Texas, Arkansas and Louisiana).  Richard Arnold's great-grandfather was Gilded Age Congressman John Levi Sheppard.  (Here's more.)  His grandfather was Morris Sheppard, United States Senator and champion of Prohibition, making him the (unintentional, one presumes) mentor of Al Capone.

Like all post-Civil War politicians in the South, the Sheppards were Democrats and Richard Arnold maintained that tradition, though his brother is a Republican and Reagan nominee.  And his cousin Connie Mack, III was a Republican Senator from Florida in the 1990s.  Cornelius McGillicuddy IV, the current Florida Congressman, whose official portrait looks like a SNL actor parodying the modern blown-dry pol, is a full-blooded GOPpy, too.

The significance of all this, of course, is that Richard Arnold had some serious baseball roots.  But it also means he was to the political manner born.  I'm not sure why the Arnolds of latter generations decided they were Arkansans rather than Texans, but then the border runs right through their hometown, of hardly greater significance than the border between any two LA suburbs.  And there are advantages to being big fish in the smaller of two available ponds.

Following in his lawyer father's footsteps, Richard prepped at Exeter, graduated from Yale and received his law degree from Harvard, producing the usual mixture of envy and nausea in the rest of us.  He finished law school at the top of his class and clerked for Justice William Brennan, then spent the next three years collecting his reward, practicing with a big Washington firm for what undoubtedly was a handsome salary.  Then he went home to Texarkana to launch his campaign for the United States House of Representatives and incidentally to work at the family law firm.

That's when fate stopped playing ball with Richard Arnold.  In 1966, at the age of 30, he narrowly lost the Democratic primary.  But six years later the victor, David Pryor, gave up his seat to run for the Senate.  So Richard Arnold tried a second time to grab the congressional seat that was his by birthright.  But he lost again, by a wider margin.

It was now 1972 and the kid with the silver spoon was advancing on middle age with nothing to show for his vaulting ambition but a small-town law practice.  He lowered his sights and took a water-carrying job as aide to Arkansas Governor Dale Bumpers. 

Now, as it happened, Bumpers' term in the governor's mansion exactly coincided with that of Georgia's Governor Jimmy Carter.  As fellow southern governors, both belonging to the socially moderate, politically liberal wing of the party, Bumpers and Carter had a lot in common. 

Bumpers knocked off bad-old-liberal William J. Fulbright in the Democratic primary for the U.S. Senate in 1974, leading to his automatic election in November (the South was still Solid for the Democrats in 1974).  Arnold followed him to Washington. 

Two years later, Carter was inaugurated President.  And just seventeen months after that, the federal district judge for Texarkana conveniently died.  Bumpers boosted his loyal sidekick as the ideal replacement, and his pal the President went along.  So the wannabe Congressman became instead District Judge Arnold.

What happened next was the type of lucky break enjoyed only by those white males who snagged their positions in the last days of de facto segregation: Arnold was kicked upstairs to make room for a minority candidate.  Carter was eager to appoint blacks to the federal bench in his native South.  But southern Senators, who cared more about doing favors for their friends and paying off political debts than about the racial makeup of the federal bench, were resistant, forcing the President into wholesale judge-bartering. 

When Congress created a new district judgeship for Arkansas, the state's Senators acquiesced in a plan that saw their favorite candidate, a political insider, named to the new seat while Judge Arnold was elevated to the Eighth Circuit so that a black lawyer could replace him on the district court bench.

That's how you get to be a federal appeals court judge.  Pay your dues to the party, perform useful services for powerful men, hang around long enough and get lucky.  Take advantage of your ethnicity, if you can.  And, you know, have some credentials.  (Though you'll notice in this timeline that Arnold never spent much time actually practicing law - perhaps 9 years, of which two were consumed by congressional races.  Extensive practical experience has never been considered necessary, or even particularly helpful, in a federal appellate judge.  See Scalia, Antonin; Thomas, Clarence; Ginsburg, Ruth; Breyer, Stephen.)

What happened next was truly amazing: one of Bumpers' successors in the governor's chair got himself elected President.  Arnold was a friend of Bill, of course - no politically-connected Arkansas Democrat could have failed to be, at least during the first heady year of Clinton's presidency.  And so when Harry Blackmun announced his retirement, Arnold seemed poised to keep sliding upwards.

No less an exalted mentor than recently-retired Justice Brennan kicked off a package of four articles published in the normally undelirious Minnesota Law Review, extolling the many excellences of Judge Arnold.  [volume 78, pages 1, 5, 25, 35]  It was the sort of over-the-top homage usually reserved for Supreme Court justices on the occasion of their recent death, unheard-of for a sitting appeals court judge. 

More than 100 of his fellow federal judges wrote letters to President Clinton endorsing Arnold for the Court, a number far too large to have been anything but organized.  Sitting members of the Supreme Court let reporters know they wanted Judge Arnold to join them.  (This is from a New Republic editorial and a Wall Street Journal article, both from May, 1994.)   It cannot be doubted that Brennan was busy behind the scenes, eager to see his life's work perpetuated by a protégé.  With his cousin boosting him from the Republican side of the aisle, Arnold's confirmation in the Senate seemed assured.

But the blatancy of the Arnold for Supreme Court campaign made it impossible for President Clinton to go along without giving the impression of being rolled.  Arnold wound up with the consolation prize of kind words from Stephen Breyer, who called him "the finest of judges" at a rose garden ceremony.  

As with his two campaigns for Congress, Richard Arnold had been presented with a can't-miss opportunity to match or even exceed his ancestors' achievements in public life.  And, once again, he missed.

Clinton's official excuse for passing over Arnold was his cancer, and maybe it was more than an excuse.  After all, if Arnold had been named to the Court, the current President would have had yet a third nominee.

But for all that Arnold had every trapping of the political hack, and then some - and for all that he was small-town royalty, which is generally not healthy for a person's psyche - for all that, he was considered a fine judge.  Indeed, some are ready to say he was a great judge, although not necessarily for the same reasons Clarence Thomas praised him.  Here's one generous obit, and here's another.  And here's Rick Garnett's recent kind words from PrawfsBlog.

I'm prepared to believe all the wonderful things said about Judge Arnold, up to a point.  (When the word "perfect" gets used, I get hives, don't ask me why...)  Which just goes to show that even a judicial selection system based entirely on the old fashioned Andy Jackson-style spoils system will occasionally produce outstanding judges.  What was the Arkansas expression Clinton liked to use?  Something about a blind hog?