The Nine [43]
A few days later, Arnold’s records arrived at Nadler’s home, outside Boston. The first clue to the seriousness of Arnold’s condition was the size of the file—thousands of pages, which stacked ten feet high. The judge had been diagnosed in 1976, eighteen years earlier, with low-grade non-Hodgkin’s lymphoma. He was treated immediately and suffered few ill effects. But Arnold’s disease did not follow a usual course. In 1991, a lymphoma was found in his colon. In 1993, he had radiation to eliminate tumors in his sinuses. Also that year, Arnold received chemotherapy to eliminate malignant cells in his blood and bone marrow.
The paradox was that Arnold had continued to function more or less normally. The disease was not debilitating. Some people lived with these kinds of recurrences for many years. But Nadler saw that the tumors were changing biologically, making them harder to treat. At the least, years of difficult chemotherapy were in Arnold’s future. On the morning of Friday, May 13, Nadler called Arnold, who was sitting on an appeal in Minneapolis, and told him his conclusions. “Lee, you have no choice,” Arnold said. “You have to say no.”
At 1:00 p.m. that day, Nadler reached Clinton, who was on a speakerphone in the Oval Office. The conversation began in a lighthearted vein, when Nadler said he could hear that Clinton was eating lunch.
“What are you eating, Mr. President?”
“A Big Mac and fries,” Clinton said.
“As an oncologist, I don’t think that’s so smart.”
Nadler said there was no way he could say that Arnold’s disease “would not interfere” with his duties as a Supreme Court justice. He had cancer all through his body. What Arnold needed was skilled, continuing care.
“Any way we can turn you around on this?” Clinton asked. There wasn’t, said Nadler.
At 3:45, Clinton asked his staff to leave him alone to think about what to do. A half hour later, he reached Arnold at the Memphis airport, where he was changing planes on the way home to Little Rock. Clinton was weeping when he said he wasn’t going to appoint him.
Far from holding a grudge against Nadler, Arnold asked to become his patient. His distinguished service on the judiciary continued, as did his cancer treatments. In time, though, chemotherapy became less effective, and he died on September 23, 2004, at the age of sixty-eight. Eight Supreme Court justices, including Stephen Breyer, issued statements mourning Arnold’s passing, an unprecedented set of tributes to a lower-court judge.
At 6:15 p.m. on May 13, Clinton went on television to nominate Breyer. The announcement was peculiar, because the White House, eager to make the evening news, didn’t even bother to wait for Breyer to come down from Boston, so the president stood alone in the Rose Garden. This search had taken just thirty-seven days, compared with the eighty-seven-day marathon to pick Ginsburg, but this selection, too, ended with a kind of disappointment for Clinton. His words were perfunctory as he talked about Breyer, and the president’s face bore traces of the sadness he felt in learning the severity of Arnold’s illness. Still, with Breyer as with Ginsburg, the nomination would come to be seen as a great success. Clinton had again selected a justice who won close to universal praise and reflected the president’s own values and views with great precision.
When Breyer finally did make it to the White House the following Monday, he made a subtle allusion to the disaster of his previous visit. “I’m glad I didn’t bring my bicycle down,” he said. At fifty-five, Breyer had an almost childlike glee at being nominated. Clinton remembered that even though Breyer had been all but publicly humiliated in the contest for White’s seat, he still came to Ginsburg’s swearing-in.
The gesture was characteristic. Breyer was the sunniest individual to serve on the Supreme Court in a great many years. Optimism was the core of his character. He had a résumé that was almost as dazzling as Arnold’s—Stanford, Marshall Scholar at Oxford, Harvard Law School, clerkship for Justice Arthur J. Goldberg, then tenure