POLITICS MAY 2, 1994
George Mitchell's withdrawal of his Supreme Court candidacy leaves the White House with a list of familiar names, many of them left over from the search that ended with the selection of Ruth Bader Ginsburg last year. Stephen Breyer of Boston and Amalya Kearse of New York are back in the running (see "The List," TNR, May 10, 1993). The leading contenders this week, however, seem to be Jose Cabranes of Connecticut, Drew Days, the U.S. solicitor-general, and Richard Arnold of Arkansas. While Days and Cabranes are able legal thinkers, Arnold is, on the merits, the best person for the job. It would be unfortunate, not to say perverse, if his Arkansas roots kept him off the Court.
Conservatives are already preparing to "Bork" Days because of his controversial, but plausible, interpretation of the federal child pornography law. In fact, the soft-spoken former Yale law professor has always been distinguished by a careful, if opaque, moderation. Nevertheless, he sometimes had trouble taking stands. In a 1987 article in the Yale Law Journal he expressed fears that the Supreme Court and Congress, in enacting and approving minority set-asides, had gone too far in promoting racialism. His criticism, however, was delicately hedged. Similarly, in "Brown Blues," a 1992 article for the William and Mary Law Review, Days questioned various forms of racial separatism without clearly endorsing an alternative. His oral arguments as solicitor-general have been competent but uninspired; they suggest that Days, despite his judicious temperament, might not be a vigorous leader on the Court.
Cabranes, too, has been unfairly characterized: as a slow worker and a closet conservative. In fact, he is the most efficient judge on a district court with a badly overloaded docket. And although he surfaced on President Bush's Supreme Court list, and was promoted as a conservative at the time, his record suggests he is a right-leaning moderate. Cabranes is most famous for calling the federal sentencing guidelines a "dismal failure." According to former clerks, he dislikes the guidelines not only because they restrict judicial discretion, but also because they destroy the drama of sentencing hearings, which ritualistically impress on criminals the enormity of their crimes. He is also sensitive to civil liberties: for example, he ruled in 1986 that indiscriminate police searches at a Ku Klux Klan rally violated the Fourth Amendment. In private, Cabranes has a wry sense of humor. Clerks say that Cabranes, who grew up middle-class in Queens and went to Yale, sees the irony in being promoted as an icon from the barrio. He is slated for a seat on the Second Circuit, and after he has had a chance to address constitutional issues as an appellate judge, he should be considered again for a promotion.
But although Days and Cabranes are able candidates, Arnold is in a different class. Clinton, by several accounts, would like to nominate his fellow Arkansan to the Court but, in the wake of Whitewater, considers it politically implausible because of the appearance of cronyism. But the appearance has nothing to do with reality. Arnold is one of the most respected appellate judges in the nation. Of the current candidates, he seems the best prepared to articulate an energetic, principled liberal vision.
Throughout his career, Richard Arnold has combined erudition with modesty. He graduated first in his class at Yale College and at Harvard Law School, and was famous for reading the Bible in Latin, Greek and Hebrew for fun. (When an Oxford debater tried to floor him by quoting the Cataline orations, Arnold finished the quotation--"How long, O Cataline, will you abuse our patience?"--and won the debate.) He went on to clerk for William Brennan in 1960 and, according to David Garrow's Liberty and Sexuality, was considered among fellow clerks as an "undeniable intellectual star." Brennan, for example, accepted Arnold's recommendation that Poe v. Ullman, the first contraceptive case, should be dismissed because the trial record was inadequate. After practicing law and running unsuccessfully for the House of Representatives in 1966 (he lost to David Pryor, now one of Arkansas's senators, in the Democratic primary), Arnold became a protege not of Bill Clinton but of Dale Bumpers, then the governor, who sponsored his nomination to the bench in 1978.
What makes Arnold's opinions exciting to read is the combination of legal sophistication and concise eloquence. (Like his judicial hero, Hugo Black, whose picture hangs on his wall, Arnold writes most of his own opinions.) His instincts appear to be in the moderate liberal camp. His comprehensive voting rights opinion in Jeffers v. Clinton rejected Governor Clinton's proposed apportionment plan as not expansive enough to satisfy the Voting Rights Act. At the same time, he has not been afraid to question some of the extremes of Guinierism. In a dramatic death penalty case decided on April 8 he faithfully applied Supreme Court precedent and overturned a district judge's efforts to stop an execution, because he found no evidence of actual innocence.
In the 1988 Webster abortion case Arnold wrote that the provisions forbidding abortion counseling, which the Supreme Court later upheld in Rust v. Sullivan, were "flatly inconsistent with the First Amendment." He properly felt compelled by precedent to uphold parental consent provisions for teenagers. Nevertheless, as Judge Patricia Wald wrote in a tribute to Arnold in the Minnesota Law Review, "orthodox feminists must recognize that his position on reproductive rights is in most respects far more expansive than the present Supreme Court's."
Arnold has taken the most heat for a single opinion later overturned by Justice Brennan. In 1983 he ruled that the Jaycees had a First Amendment right not to admit women, although he stressed that he disagreed with them, because their activities involved political expression. "He made it clear that he felt they were wrong but that as he analyzed the First Amendment they had the right to be wrong," says Diana Savit, president of the D.C. Women's Bar Association. "I don't think that makes him a sexist." In other cases, Arnold has vigorously enforced women's rights, striking down, for example, Arkansas state school rules that required teenage girls, but not boys, to play half-court basketball.
Arnold seems to possess many of the qualities that Harry Blackmun lacked: legal sophistication, graceful writing, warmhearted gregariousness, self- restraint and the ability to persuade by intelligent argument. On a court of monks, he might provide precisely the kind of leadership that Bill Clinton seeks. The lesson of the Ginsburg nomination is that the surest way of being vindicated is to choose the best candidate. That's Arnold.
Jeffrey Rosen is the legal affairs editor at The New Republic.