Posted 12:00 AM by Howard Bashman

20 Questions for Senior Circuit Judge Richard S. Arnold of the U.S. Court of Appeals for the Eighth Circuit: “How Appealing” is delighted that Senior Circuit Judge Richard S. Arnold of the U.S. Court of Appeals for the Eighth Circuit has agreed to participate in this Web log’s recurring monthly feature, “20 Questions for the Appellate Judge.”

Judge Arnold was born in Texarkana, Texas in 1936 and was raised in Arkansas. He attended undergraduate school at Yale and law school at Harvard, graduating first in his class from both schools. After law school, he clerked for Associate Justice William J. Brennan, Jr. of the Supreme Court of the United States. After that clerkship, Arnold practiced law for several years at Covington and Burling in Washington D.C. and then returned to Texarkana to practice at Arnold and Arnold. In 1973, he joined the staff of Arkansas Governor Dale Bumpers and continued working for U.S. Senator Dale Bumpers in 1975.

In 1978, President Jimmy Carter nominated Arnold to fill a vacancy on the U.S. District Court for the Eastern and Western Districts of Arkansas. In late 1979, President Carter nominated Judge Arnold to fill a newly-created seat on the U.S. Court of Appeals for the Eighth Circuit. The U.S. Senate confirmed Judge Arnold in February 1980. From 1992 through 1998, he served as the Eighth Circuit’s Chief Judge. He took senior status in April 2001.

Judge Arnold has his chambers in Little Rock, Arkansas, and the Eighth Circuit has its headquarters in St. Louis, Missouri.

Questions appear below in italics, and Judge Arnold’s responses follow in plain text.

1. Both you and your younger brother, Morris Sheppard Arnold, serve as judges on the U.S. Court of Appeals for the Eighth Circuit, and both of you first served as U.S. District Judges. Your brother, however, was nominated to the district court by President Ronald W. Reagan and to the Eighth Circuit by President George H.W. Bush, while President Carter was responsible for your nominations. What was it about the household in which you and your brother were raised that produced two federal appellate judges, one from each major political party? Also, please explain your family’s connection to Morris Sheppard, who from 1913 to 1941 served as a U.S. Senator from Texas.

I don’t know that the household or family can be blamed for my brother’s and my having once belonged to different political parties. I think it is more the result of free choice that we made after becoming adults.

Thank you for asking about my grandfather, Morris Sheppard. At the time of his death, in 1941, he was Dean of the Congress and Chairman of the Senate Committee on Military Affairs. His oldest daughter, Janet, was my mother. I am very proud of his record of public service. I would like to add that my cousin, Connie Mack, the son of my mother’s sister, served two terms in the Senate.

2. In 1998, the U.S. Congress amended the statute codified at 28 U.S.C. sec. 458 to prohibit the appointment to any U.S. District Court or U.S. Court of Appeals any person “who is related by affinity or consanguinity within the degree of first cousin to any judge who is a member of the same court.” As far as I am aware, you and your brother are the only brothers to have ever served together on a federal appellate court. As a matter of policy, do you support or disagree with the prohibition contained in Section 458?

I think I should not comment on whether I approve or disapprove, as a matter of policy, of a statute. I will say that when my brother was nominated for the Court of Appeals, no objection whatever was raised, at least to my knowledge, on the basis of our relationship. The statute was enacted in the aftermath of the confirmation of Willie Fletcher to be a United States Circuit Judge for the Ninth Circuit. Judge Fletcher’s mother, Betty, is also a member of that Court.

3. What are your most favorite and least favorite aspects of being a federal appellate judge?

The aspect of the job I like most is that all I have to do is do right. Every day when I come to work and pick up a file, that is my only job. Let right be done.

My least favorite aspect of the job is the volume. It often does not leave one with enough time to think about cases properly. I am grateful that the problem is less acute now that I have taken senior status.

4. Identify the one federal or state court judge, living or dead, whom you admire the most and explain why.

Mr. Justice Brennan. Not only did he give me a job, he gave me an example of a unique combination of intellect and compassion. He was a superb judge. He started as my boss, and ended as a loving friend.

5. The confirmation process that nominees for U.S. Court of Appeals vacancies must undergo is quite a bit more politicized today than it was when you experienced it in 1980. Does the current tenor of the confirmation process cause you any concern as a sitting federal appellate judge, and what if anything realistically can be done to improve the nomination and confirmation process?

Yes, the current tenor of the confirmation process does cause me concern. I think it is much too highly politicized, on both sides. People who are qualified and ought to be confirmed are being rejected, or simply not voted on, for what seem to me to be insufficient reasons. I don’t know what can be done realistically to improve the process. As a practical matter, it helps for the President and the Senate to be of the same party, but there will necessarily be times, like the present, when that isn’t true.

6. How do you define the term “judicial activism,” is it ever proper for a federal appellate judge to consider his or her personal preference as to the outcome of a case (other than the preference to decide the case correctly in accordance with the law) in deciding how to rule, and do you believe there is any way that the U.S. Senate can determine in the confirmation process whether a nominee is likely to engage in judicial activism if confirmed to the bench?

Personal preferences should be laid aside, and mostly, I believe, they can be. All judges are human, and we can’t achieve perfection, but we should strive to follow the law according to neutral principles (and I believe they exist). A judicial activist is someone who writes his own preferences into the result of cases without thinking about much else.

7. In 1994, you were widely reported to be a finalist to fill the vacancy created on the Supreme Court of the United States when Harry A. Blackmun announced his intention to retire. Why, to the best of your understanding, did President Clinton not pick you, and in retrospect are you pleased, disappointed, or some combination of the two about not having had the opportunity to serve as a Justice on the Court on which you once clerked?

I will tell you what the President told me, and I believe it is accurate. I have had a form of lymphoma since 1975. From time to time, it needs to be treated, though it does not usually interfere with judicial functioning. The problem was doubts about longevity. No physician acceptable to the White House was willing to give sufficient assurances on that score. I also had some political opposition, but I believe that health was the dispositive factor.

I would like to add two things. First, I have no complaints about how the President treated me. He was very considerate of me, and he has been a good friend to me. Second, I said at the time that Chief Judge (as he then was) Breyer would be a wonderful justice, and events have proved me right.

As to whether I was disappointed, I think you know the answer.

8. Tony Mauro, who once covered the U.S. Supreme Court for USA Today and who now covers the Court for The American Lawyer, wrote in 1994 that the only reason President Clinton did not nominate you to replace Justice Blackmun was that physicians were unable to assure the White House that you would be able to serve on the Court for at least fifteen years given your medical history of cancer. The article went on to note that under the Americans with Disabilities Act, covered businesses would have been prohibited from refusing to hire someone on that basis. Is it correct to say that the reason you were not nominated to the U.S. Supreme Court was because of concerns about how long you could serve on the Court, and if indeed that were the reason, would you consider yourself to have been a victim of discrimination?

I don’t know about 15 years, but Mr. Mauro’s statement is otherwise accurate, to my knowledge. I don’t feel discriminated against, however. In the first place, as a matter of law, the Americans with Disabilities Act applies only to employment, not to appointment to federal office. In the second place, an expectation of longevity has been, for a long time, a practical political consideration in appointing judges, especially justices of the Supreme Court. The factor has received more weight, in my opinion, than it deserves, but it is an aspect of political life.

9. Seventh Circuit Judge Richard A. Posner has described his own judicial philosophy as “pragmatic.” How would you describe your judicial philosophy, and what types of cases have you found the most difficult to decide?

I doubt that I am a pragmatist in the sense that Dick Posner uses the word. (Incidentally, I admire him greatly. He is a true legal genius.) I regard myself as more of a “constitutionalist” or “legalist.” In this regard, Justice Black is a model of mine. The job of judges, in most cases, is to ascertain and apply the will of other people, for example, the Framers of the Constitution or of a statute. In the case of the Constitution, of course, it’s hardly ever possible to determine with certainty what the Framers intended about a particular question. So we lower-court judges are occupied mainly with applying precedent and, in default thereof, such scraps of history and tradition as we can lay our hands on.

10. What is your view on whether the Ninth Circuit — which now is authorized to have twenty-eight active judges and might soon be expanded to thirty-five active judges — should be split into two or more smaller circuits, and is there a particular manner of dividing the Ninth Circuit that you view as best?

I have many friends on the Ninth Circuit, most of whom are opposed to splitting it, so I hate to answer the question. The question is for Congress. I prefer not to express a view.

11. What qualities do you look for in deciding whom to hire as a law clerk, and are there any sorts of candidates you wish were applying but haven’t been? Also, how if at all did the new “Law Clerk Hiring Plan” change for better or worse your experience in hiring law clerks who will be reporting to work in the fall of 2004?

The best quality to have in a law clerk is good writing ability, and it’s impossible to determine in advance whether a person has that. I don’t know of any sorts of candidates that I wish were applying but haven’t been. The new hiring plan, to which I am voluntarily adhering, changes the process simply by moving it forward one year, which is a good thing. I was not hired as a law clerk until December of my third year of law school, with the job to begin in July. I don’t see why judges should be in a big hurry to hire law clerks.

12. Let me begin by disclosing that I am an enthusiastic supporter of the view that federal appellate courts should not be able to issue decisions identified as “non-precedential.” You are perceived, rightly or wrongly, as at the forefront of that cause, having raised the subject as an addenda in 1998 to your letter to the Commission on Structural Alternatives for the Federal Courts of Appeals, in your 1999 law review article titled “Unpublished Opinions: A Comment,” and in your decision for a three-judge panel of the Eighth Circuit in 2000 in Anastasoff v. United States holding that the Eighth Circuit acted unconstitutionally in adopting a local rule providing that unpublished Eighth Circuit opinions were non-precedential. Of course, the Eighth Circuit granted rehearing en banc in Anastasoff and dismissed the case as moot because the federal government, in the interim, had changed its position and decided that Ms. Anastasoff was in fact entitled to receive the tax refund she was seeking in her lawsuit. The en banc opinion also vacated your panel opinion. As a result, the Eighth Circuit local rule that your panel opinion condemned as unconstitutional remains in effect today. On the other hand, in 2002 the U.S. Court of Appeals for the D.C. Circuit abolished prospectively the concept of non-precedential rulings, the Federal Rules of Appellate Procedure are on the verge of being amended to allow appellate briefs to cite unpublished and non-precedential decisions, and Congress recently passed a law that will soon require the federal appellate courts to post all unpublished opinions online as they are issued. How satisfied are you with the current state of affairs concerning non-precedential rulings by federal appellate courts?

I wrote the opinion dismissing the Anastasoff case as moot. Whether rehearing en banc would have been granted had the only issue before the Court been the merits, I just don’t know, nor do I think it would be appropriate to speculate on the subject. As to the current state of affairs, I believe it is moving in the right direction. The most vulnerable part of current practice, in some circuits, is the rule against citation. This rule and attempts to enforce it are doomed to fail. Entirely apart from any legal difficulties or theoretical problems, it is just not possible to put that much of a restraint on the availability of information.

13. Knowing what you know today, are foes of non-precedential federal appellate court opinions better advised to focus their efforts on achieving changes through the rulemaking process (keeping in mind that it was the rulemaking process that gave birth to non-precedential opinions) or on achieving changes through the adjudicatory process?

I don’t know the answer to this question. Experience up to now indicates that the rulemaking process may be the best avenue. A lot of people who agree with me that there should be no such thing as a non-precedential opinion don’t agree with my Article III approach. Incidentally, there is also a good equal-protection argument to be made, but I didn’t feel it necessary to reach it.

14. Had the Anastasoff case not become moot before the en banc Eighth Circuit could reach the merits, was it your prediction that the en banc court would have agreed with you the local rule declaring unpublished opinions non-precedential should be abolished, and why has the Eighth Circuit not repealed, via the rulemaking process, the rule your panel opinion condemned as unconstitutional?

I don’t have a prediction on this subject. As to why the Eighth Circuit has not repealed its rule, the answer is that a majority of the Court does not want to. I will add, however, that we have never sanctioned a lawyer for citing an unpublished opinion, or even threatened to.

15. Even some who are sympathetic to your view that non-precedential federal appellate opinions should not exist believe that Ninth Circuit Judge Alex Kozinski demolished the foundation of your panel opinion in Anastasoff in his decision in 2001 for a unanimous three-judge Ninth Circuit panel in Hart v. Massanari. Did Judge Kozinski�s opinion in Hart demonstrate to you that you had either reached the wrong decision in your panel opinion in Anastasoff or had reached the right decision but for the wrong reasons, and where if at all did Judge Kozinski err in his opinion in Hart?

No, I not convinced by Hart. The opinion, which is a fine job of scholarship, proves, if it proves anything, that the concept of precedent was somewhat fluid in the 18th Century. That is not the point. The question is whether certain kinds of opinions, in this case, opinions that a court does not send to certain legal publishers, can be declared a priori to be without precedential value. Such an idea would have been entirely foreign to the 18th-Century legal mind.

16. Tony Mauro, in an article published in May 2003, paraphrases you as saying that the proposed rule allowing citation to unpublished and non-precedential federal appellate opinions “would lead almost inevitably to giving unpublished opinions substantial weight as precedents.” He also quotes you directly as saying that you “hope the slope is very steep and very slippery” toward the widespread use of unpublished opinions and that “I don’t know what judges are afraid of.” What in your view is the best argument those in favor of retaining non-precedential federal appellate opinions have to offer, which side in this battle do you expect to emerge victorious, and when and how do you expect the battle to be resolved?

There isn’t any good argument. It’s my opinion that judges who believe that unpublished opinions should be without precedential value are driven to that conclusion by the sheer volume of work. I don’t know how the battle will be resolved, but ultimately I hope and believe that the idea of non-precedential opinions of any kind will be consigned to the dust bin.

17. Is the salary now paid to federal appellate judges too low? What should federal appellate judges be paid or, perhaps less controversially, how would one determine what the proper salary should be?

Yes, I confess to a bias on this subject, and not just the bias that all judges hold. I am now serving as Vice Chairman of the Committee on the Judicial Branch of the Judicial Conference of the United States. One of the main jobs of the Committee is to advocate a pay raise, in accordance with Judicial Conference policy. We are supporting proposals in Congress to raise the salary of all judges by about $25,000. The President has endorsed this proposal. As to how to determine what the proper salary would be, it should be said that we are not asking for what partners in big-city law firms make. A point of comparability might be the salaries of law-school deans or chaired professors. As Justice Breyer has pointed out in a masterful presentation, the average law-school dean at a top law school makes about $300,000.

18. What is the best advice you ever received on being an effective federal appellate judge, and from whom did you receive it?

Most of the work we do is hidden. The opinions are only the tip of the iceberg. Perhaps the best advice I ever received came from one of my colleagues, Judge Gerald Heaney. He said that the best opinion is one you sit down and write immediately after the argument.

19. What are the most significant ways that attorneys practicing before the U.S. Courts of Appeals could improve their appellate briefs and their appellate oral arguments?

Many briefs are ungrammatical and poorly proofread. These are elementary respects in which briefs could be improved. Also, the statement of facts is the most important part of the brief, because it is the part of the case about which the judges know least. It should receive more emphasis.

Oral arguments should get to the point. The time is short. Don’t be irritated with judges who ask questions. You may hear something that is the key to your case.

20. What do you do for enjoyment and/or relaxation in your spare time?

Pray and play golf.