Paul Greenberg

How describe the late Richard S. Arnold and his approach to the law? Was it conservative or liberal? Such questions are not applicable in his case. For his law was neither of the right nor left. A fellow jurist named Antonin Scalia once noted that, among those who study such trends on the court, Richard Arnold was the liberals' favorite conservative and the conservatives' favorite liberal. Such was the quality of his law, which rose above labels.

Like the best law, Richard Arnold's was simply apart. It had no ideology, or anything else that would have got in the way of its natural course. He just let the law speak for itself, which is no easy thing by the time a disputation reaches the highest courts in the land. But his decisions invariably cast a new light that, once he'd let it shine, seemed old wisdom.

Reading one of Judge Arnold's opinions, one might think: Well, of course, there could be no other way to decide the case and steer the law. Everything just fell in place, like the notes in Mozart, as if this were a work of nature rather than man. For his was law from the inside out, allowed to come into fruition.

It's good to know that Richard Arnold and his contributions to American law are being discussed at, yes, the Clinton School of Public Service. There is something delicious about an irony so tart.

Now it is the country's 44th president, Barack Obama, who has the opportunity and duty to choose the next associate justice of the U.S. Supreme Court. And he's made it clear what kind of justice he's looking for. None of that bookishness for him: "I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a casebook. It is about how our laws affect the daily realities of people's lives." And further, the nominee this president picks will have "a quality of empathy, of understanding and identifying with people's hopes and struggles."

In this president's list of desiderata, scholarship comes off second best, maybe third or fourth, certainly well after empathy and understanding and identifying with people in their "hopes and struggles." As for the rule of law rather than by men, an ideal once much prized in America, it went unmentioned by the president. Unless you count his dismissive remarks about abstract legal theory and mere footnotes in a casebook.

Richard Arnold, it occurs to me, must have known every footnote in every case that concerned every question he ever had to decide. Just ask anyone who ever clerked for him. He is said to have written the one and only perfect paper for the most demanding of Harvard's law faculty, the justly revered Abram Chayes. As a judge, the honorable Richard Arnold (honorable in his case was more than a formal title) did not identify with rich or poor or middling, white or black or any other complexion, or any particular group. His thought was his own, his law the opposite of groupthink. He seemed interested only in following the law to its natural conclusion. "The job of judges," he once said, "is to find the facts and apply the law, not their own wills...."

Something tells me he would have been passed over for the Supreme Court by this president, too. For what was once counted as a virtue in a judge, impartiality, had become a disqualification even by the last decade.

It is definitely a new era. Not that this president isn't something of a traditionalist. Barack Obama's comments about what he's looking for in a member of the nation's highest court would seem to fit quite well into the American anti-intellectual tradition. It's how the law affects people that matters to him, not what it might actually say.

This president knows his law, all right. He used to teach it, and seems comfortable discussing it. More than comfortable: familiar. Indeed, his is the contempt for legal theory that familiarity breeds. His law is a respecter of persons, their hopes and struggles, rather than an independent discipline with a life and reason of its own that a judge is duty-bound to search out, and, having found, must propound.

That is not Barack Obama's approach to the law. A populist, he is interested in its practical effect on people in the here and now, in this age, rather than its abstract principles over the ages. His approach might best be described as the opposite of Richard Sheppard Arnold's: He knows his law from the outside in.


Paul Greenberg

Pulitzer Prize-winning Paul Greenberg, one of the most respected and honored commentators in America, is the editorial page editor of the Arkansas Democrat-Gazette.


 

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