It is always a pleasure to recall you, even in your last but still undiminished days. Last time I saw you, you were hooked up to various tubes and electronic monitors, but your mind -- oh, your mind! -- was as graceful, your words as succinct, your manner as judicious, your spirit as luminous as ever, maybe more so. As if you were packing up, getting ready to leave, clearing your docket of anything extraneous, and preparing to make a clean break from this life, leaving your affairs in their usual order.
You were listening to my small talk, pausing before each response, as was always your way, before responding in whole sentences -- whole precise, brief paragraphs without a needless word. You replied to my every comment, just on a level one step higher. Just enough to raise the level of the conversation without losing me. Your ears were attuned to my every word while your eyes followed the ball game on the television at the foot of your hospital bed.
"Do you like baseball?" you asked. Is a bluebird blue?
"Have you ever come across a paper called 'The Common Law Origins of the Infield Fly Rule'?" you wanted to know. No, I hadn't.
"In that case," you said, "I'll see that you get a copy." You did. It turned out to be the best explanation this baseball fan had yet encountered of how the common law develops in response to each challenge. And why it is superior to the kind of codified law -- see the Napoleonic Code -- that begins to grow archaic from the moment it's adopted. Because it's too rigid to reflect the ever-flow of time and events, the flux and change that must mark the course of human events.
Put it this way: Ever pass a stop sign rising at a lonely intersection out in the country where it would take an act of imagination to picture any traffic at all? It's a safe bet that some ghastly accident occurred there. It's the same with the common law. It reflects the process of challenge and response in the real world, not an abstract legal one. The common law endures because it changes as judges interpret it, adapting to each real need in an all too real world. It reflects things as they are, usually hurtling toward us at a high rate of speed.
You aren't just missed, absent friend. But remembered and consulted in memory. ("What would Richard Arnold have to say?") Not since Learned Hand had an American jurist been described as "the greatest judge never to have sat on the Supreme Court of the United States."
How did you come to earn that distinction? Because a president of the United States lacked the vision to see that a decade of service by a Richard Sheppard Arnold on that high court, which was as long as you would live after your fatal illness was diagnosed, would have been worth infinitely more to the country than the longest tenure on the court by whichever nonentity that president chose to appoint in your stead.
You know the type he would choose: some whited sepulchre who stages a road show with an equally sonorous colleague to debate the decisions they made -- all for the entertainment and edification of us rubes out here. They succeed only in making a spectacle of themselves and the law. Judges who comment on their decisions off the bench, as if they were coaches talking about their strategy in a post-game interview, raise neither their stature nor the law's. They lower both. This is not some kind of game. It is -- or should be -- the law of the land.
You made the news just the other day, Your Honor, when your name surfaced in the late Diane Blair's notes on conversations with her long-time friend Hillary Clinton, who shrugged off your remarkable mind, character and grace with a dismissive phrase or two. Some folks wouldn't recognize greatness if they were standing in its shadow, as Ms. Clinton was at the time. It was a time when everything was going wrong at the White House, and she responded by going off like a pack of Furies in some Greek tragedy, only in her case it was all buzz and no bite.
Hillary Clinton's little hissy may have reached its profane nadir when she told her friend Diane that she'd opposed your being nominated to the highest court in the land (which is where you belonged) because she wanted to vent her spleen on the publisher of the Arkansas Democrat-Gazette, who's named Walter Hussman, and just pressure the paper in general. Or as she unfortunately put it:
"...G------ Hussman needs to know that it's his own g------ fault; that he can't destroy everybody from Ark. and everything about the state and then not pay the price for his precious Richard. He needs to get the message big-time, that Richard might have a chance next round if Hussman and his minions will lay off all this outrageous lies and innuendo. They should have their noses rubbed into it." (Caveat Lector: I've taken the liberty of correcting some of the misspellings in this section of Mrs. Blair's memoir, but left the rest of Hillary Clinton's diatribe unchanged.) Goodness, can the First Lady really have thought that the editorial policy of the paper I work for was for sale in exchange for a political appointment? What was she going to offer us next -- a mess of pottage? Somebody should have sent the lady -- well, the woman -- a copy of the First Amendment with a few of its phrases underlined, like freedom of speech and freedom of the press. Those ideas are kind of respected around this newsroom.
But time passes, memory fades, and we forget. In this case, we forget how petty, how mean, how crass, how as self-absorbed as Tom and Daisy Buchanan in "The Great Gatsby" the Clintons could be. And then a scrap of paper like this one surfaces, and brings it all back. Like a bad hangover. But you were beyond all that, Your Honor, in life as you are now in memory. A Yiddish saying comes to mind at such times: Some of the dead still live and some of the living are already dead. Rest easy, Your Honor. That's how you were addressed, and the salutation applied. In so many ways. --Inky Wretch