The Nine [42]
Arnold settled in Arkansas, working alternately in private practice and government service, mostly for Governor and then Senator Dale Bumpers. He wrote a new constitution for the state. In 1978, President Carter nominated him to the district court and, two years later, to the Court of Appeals for the Eighth Circuit. In a remarkable testament to the esteem in which the Arnold family was held, the first President Bush named Richard’s younger brother Morris to the same court in 1991. They were the only brothers in American history to serve on the same federal court of appeals.
In the legal profession, an Arnold nomination would have been greeted with something close to acclamation. Richard’s politics were moderate; in his best-known ruling, in 1979, he forbade the state of Arkansas from limiting high school girls to half-court basketball while allowing boys to play full court. More than any ideology, Arnold was better known for his eloquence and fairness, and he was admired across the political spectrum. After Blackmun stepped down, more than a hundred federal judges wrote a joint letter to Clinton asking that he nominate Arnold—their action remains unprecedented. Scalia, his law school classmate, called Arnold and asked, “Would it help if I screamed how awful you are?” Clinton himself adored, even looked up to Arnold. They were occasional golfing partners, and as with everything else, Arnold excelled at the game.
There was only one problem. Arnold, who was fifty-eight, had been diagnosed with cancer almost two decades earlier. In blunt terms, Clinton didn’t want to nominate Arnold if he thought the judge was soon going to die.
Steven Umin, a Washington lawyer and close friend of Arnold’s since their days at Yale College, understood that Arnold’s health would be the major issue in his candidacy for the Court. He thought the only way to address the issue was head-on. Two of Umin’s former law partners, Edward Bennett Williams, and Larry Lucchino, later a prominent baseball executive, had been treated for lymphoma by Lee Nadler, a professor at the Dana-Farber Cancer Institute at Harvard Medical School. Nadler was among the world’s foremost authorities on Arnold’s disease. Most relevantly, Nadler had helped push Paul Tsongas out of the race for president in 1992, saying that the former senator’s cancer remained life-threatening. (Tsongas died of the disease in 1997.) Umin thought if Nadler would offer a positive prognosis for Arnold, who had a similar illness to Tsongas’s, Clinton would surely appoint him to the Court.
Through Mack McLarty, the White House chief of staff (and himself a great fan of Arnold’s), Umin arranged for Clinton himself to call Nadler and ask him to review Arnold’s medical file. A pugnacious character with abundant self-confidence, Nadler turned Clinton down. “Mr. President, you can ask me to do anything you want,” Nadler said. “But if somebody is going to ask me to look at this guy’s records, it’s got to be him. Then I would report to him, and he could share the report with you.”
Amused by the doctor’s moxie, Clinton said he was sure Arnold would approve and he would see that the records were sent to Nadler promptly. In their one telephone conversation during this period, a follow-up to Clinton’s call, Arnold told Nadler, “Just do the right thing, doctor. Tell the truth.