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February 13, 2012
Binyamin Rose: Back to the Bunker: How a life-risking act by a Christian family during the Holocaust saved a family and built a thriving community a world away
Menachem Wecker: Business Schools Teach Real Estate Despite Troubled Housing Market
February 10, 2012
Lisa M. Krieger: Man with defibrillator demands access to his own heart's information
David G. Savage: Why activists may not be in a hurry to have High Court rule on alternative marriage
February 9, 2012
Laura McMullen: 10 Least Expensive Public Schools for Out-of-State Students
Kimberly Palmer: How to actually enjoy -- relaxing, financially -- your vacation
February 8, 2012
Warren Richey: Why momentous Prop. 8 ruling might not satisfy gay-rights groups
Menachem Wecker: Though Controversial, LL.M.'s Can Lead to Specialized Legal Jobs
The Kosher Gourmet byDana Velden: Going to the bother of making soup? You know it better be good. This CREAM OF TOMATO SOUP certainly is! And it's a cinch to make, too (Includes techinques and serving secrets)
February 7, 2012
Frank J. Gaffney, Jr.: Caught off-guard? President's Super Bowl interview with Matt Lauer gives those who need a reason not to vote for him, a darn good one
Suzanne Bohan: Leaping lizards! Tiny reptiles advancing robot design
February 6, 2012
Jonathan Tobin: Iran Threatens Israel With Destruction, But the New York Times Doesn't Hear It
Jeffrey Fleishman: In newly democratic Egypt, tens of democracy activists jailed, to stand trial; their groups are 'threatening the stability of the homeland'
Julie Deardorff : Researchers say antioxidants may not be that effective and could do more harm than good
Mark Clayton: How did Anonymous hackers eavesdrop on FBI and Scotland Yard?
February 3, 2012
Edmund Sanders : Israeli official says Iran is creating missile that could reach East Coast of US
Victoria Kim: Immigrant-smuggling ring used black drivers to avoid racial profiling
February 2, 2012
Jim Carney: Wrong number call may have saved her life
Reza Kahlili : Ex-CIA spy in Iran's Revolutionary Guard: What Obama doesn't grasp about striking deals with Tehran
Tina Susman: For woodchuck rescuer, every day is Groundhog Day
February 1, 2012
Brian Bennett: US officials see increasing threat of domestic attack from Iran
Emily Brandon: How to Take Advantage of New 401(k) Fee Disclosures
January 31, 2012
January 30, 2012
Paul Richter and Ramin Mostaghim: Misreading Teheran's limits -- deadly and economically devastating as they may be -- is a risk administration, Europe seem willing to take
Suzanne Bohan: Warning: Nap-deprived tots missing more than sleep, study finds
Meg Handley: Banks Revamping Rewards Programs to Woo Customers
January 27, 2012
Caroline B. Glick: Obama: Of course I intend to prevent a nuclear holocaust . . . in a few months
Yochonon Donn: In liberal New York City, fervently-Orthodox Jews may soon be getting a district to call their own
Jeannine Stein: An inflated ego and thinking you're 'all that' doesn't just make others sick of you, it can make you ill
Katy Hopkins: New budget rules may affect how much money you get for college
January 26, 2012
Ed Koch: To the New York Times, calling for the murder of Jews by those capable of having their incitement taken seriously isn't news
Jeannine Stein: Mental illness struck one in five U.S. adults in 2010: Report
January 25, 2012
Richard Simon: House passes two bills endorsing the use of religious symbols at military memorials
Fred Weir: Putin: Multiethnic Russia cannot survive as a US-style 'melting pot'; must find its own way
Susan Johnston: 5 Sneaky Coupon Strategies Consumers Should Watch Out For
January 24, 2012
Carol Clark: The price of your soul: How your brain decides whether to 'sell out'
Caroline B. Glick: America lost most in 'Arab Spring'. Sadly, many voters still don't grasp the extent
Warren Richey: Drug criminal scores win in GPS ruling from conservative-leaning high court
Erika Bolstad: Black conservatives gather to talk about gaining strength
January 23, 2012
Melissa Dribben: Jewish voters to play a key role in Florida's Republican primary
Jordan Rau: In quest to grow, Catholic hospital system will announce this morning its break from church
Ali Safi: U.S. envoy gives Taliban terms for peace talks
January 19, 2012
January 18, 2012
January 17, 2012
Frank J. Gaffney Jr.: No-kidding red lines: U.S. response to an Iranian nuke may be bluster, but Israel's won't be
David G. Savage: They sued their principals after slandering them online --- now the cases are headed to the Supreme Court
David Francis: Where to Invest in 2012: With stocks expected to rebound, opportunity abounds for investors
January 13, 2012
Ben Lynfield: Israeli lawmakers move to annex Jewish Judea, one museum at a time
Alexia Elejalde-Ruiz: Thriving through touch: Gentle massage helps older people with low mobility improve in mind and body
January 12, 2012
Warren Richey: Landmark Supreme Court ruling a 'resounding win' for religious groups
Warren Richey: Supreme Court says no to new rule on eyewitness testimony
John Fauber : Statins found to raise diabetes risk in postmenopausal women
Katy Hopkins : Consider This Before You Pay for an Online Degree
The Kosher Gourmet by Joseph Erdos: This mushroom and barley soup has an intense -- almost nutty -- flavor that mixes robust with Middle East. It has creaminess without cream
January 11, 2012
Shari Roan: Millions of atrial fibrillation sufferers at risk for devastating, but preventable, stroke
Tom Hussain: Pakistan -- recipient of more than $21 billion in civilian and military aid -- speeds pursuit of Iranian pipeline, defying US
David G. Savage: High court signals it won't be loosening TV's 'indecency' rules
Stephen Ceasar: Oklahoma's Islamic law amendment can't go into effect, court rules
January 10, 2012
Reza Kahlili: From an ex-CIA spy: US must exploit new split in Iran's Revolutionary Guard
Karen Kaplan: Study: Nicotine replacement products ineffective when used in real-life situations
January 9, 2012
Michael Doyle: Put through legal hell over dream home, couple fought back hard --- all the way to Supreme Court
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Jewish World Review
May 12, 2009
/ 18 Iyar 5769
The Lost Light
By
Paul Greenberg
http://www.JewishWorldReview.com |
It's getting harder and harder to tell the daily news from the daily crop of ironies. They grow identical. Consider:
A glance at this month's programs offered by the Clinton School of Public Service here in Little Rock lists an appearance by Polly J. Price, dean of faculty at Emory University's law school. She'll be discussing her fine new study of Richard S. Arnold's law and life, having been one of his law clerks (1989-91) when he served on the Eighth Circuit Court of Appeals.
That's Richard Sheppard Arnold, who was regularly described, like Learned Hand in another generation, as the greatest judge never to have served on the Supreme Court of the United States.
And, yes, the program is being presented at the school named for William J. Clinton, who among other things, will be remembered as the president who did not appoint the finest legal mind of his time to the United States Supreme Court.
I forget which of the mediocrities currently serving on the court Bill Clinton chose instead, and remember only the reason, or at least the excuse, for his not choosing Judge Arnold: the cancer that would eventually take the judge's life. But not for another ten years, during which he would serve with the greatest distinction on the appellate bench.
During that decade it regularly occurred to some of us that to have had just one year of Richard Arnold's remarkably clear jurisprudence on the U.S. Supreme Court would have been worth more than all the fuzzy ruminations handed down by any of his lessers now on that court.
But the opportunity was lost. This is what comes of a president's lacking the faith, hope and courage, not to mention judgment, to make the best appointment he could to the Supreme Court of the United States and Bill Clinton must have known who that best appointee was in 1994. Every knowledgeable legal scholar in the country did.
For who in American law had not heard of Richard Arnold? Even in his salad days at Yale and Harvard Law, where he was tops in his class again, the slight, gangly kid from Arkansas was something of a legend. Even then his reasoning was as clear as his penmanship, and as concise and unassuming. The whole course of American law might have been clarified and elevated had he served on the nation's highest court; the tragedy not for Richard Arnold but for the country is that we'll never know.
How describe the late Richard S. Arnold and his approach to the law? Was it conservative or liberal? Such questions are not applicable in his case. For his law was neither of the right nor left. A fellow jurist named Antonin Scalia once noted that, among those who study such trends on the court, Richard Arnold was the liberals' favorite conservative and the conservatives' favorite liberal. Such was the quality of his law, which rose above labels.
Like the best law, Richard Arnold's was simply apart. It had no ideology, or anything else that would have got in the way of its natural course. He just let the law speak for itself, which is no easy thing by the time a disputation reaches the highest courts in the land. But his decisions invariably cast a new light that, once he'd let it shine, seemed old wisdom.
Reading one of Judge Arnold's opinions, one might think: Well, of course, there could be no other way to decide the case and steer the law. Everything just fell in place, like the notes in Mozart, as if this were a work of nature rather than man. For his was law from the inside out, allowed to come into fruition.
It's good to know that Richard Arnold and his contributions to American law are being discussed at, yes, the Clinton School of Public Service. There is something delicious about an irony so tart.
Now it is the country's 44th president, Barack Obama, who has the opportunity and duty to choose the next associate justice of the U.S. Supreme Court. And he's made it clear what kind of justice he's looking for. None of that bookishness for him: "I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a casebook. It is about how our laws affect the daily realities of people's lives." And further, the nominee this president picks will have "a quality of empathy, of understanding and identifying with people's hopes and struggles."
In this president's list of desiderata, scholarship comes off second best, maybe third or fourth, certainly well after empathy and understanding and identifying with people in their "hopes and struggles." As for the rule of law rather than by men, an ideal once much prized in America, it went unmentioned by the president. Unless you count his dismissive remarks about abstract legal theory and mere footnotes in a casebook.
Richard Arnold, it occurs to me, must have known every footnote in every case that concerned every question he ever had to decide. Just ask anyone who ever clerked for him. He is said to have written the one and only perfect paper for the most demanding of Harvard's law faculty, the justly revered Abram Chayes. As a judge, the honorable Richard Arnold (honorable in his case was more than a formal title) did not identify with rich or poor or middling, white or black or any other complexion, or any particular group.
His thought was his own, his law the opposite of groupthink. He seemed interested only in following the law to its natural conclusion. "The job of judges," he once said, "is to find the facts and apply the law, not their own wills…"
Something tells me he would have been passed over for the Supreme Court by this president, too. For what was once counted as a virtue in a judge, impartiality, had become a disqualification even by the last decade.
It is definitely a new era. Not that this president isn't something of a traditionalist. Barack Obama's comments about what he's looking for in a member of the nation's highest court would seem to fit quite well into the American anti-intellectual tradition. It's how the law affects people that matters to him, not what it might actually say.
This president knows his law, all right. He used to teach it, and seems comfortable discussing it. More than comfortable: familiar. Indeed, his is the contempt for legal theory that familiarity breeds. His law is a respecter of persons, their hopes and struggles, rather than an independent discipline with a life and reason of its own that a judge is duty-bound to search out, and, having found, must propound.
That is not Barack Obama's approach to the law. A populist, he is interested in its practical effect on people in the here and now, in this age, rather than its abstract principles over the ages. His approach might best be described as the opposite of Richard Sheppard Arnold's: He knows his law from the outside in.
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JWR contributor Paul Greenberg, editorial page editor of the Arkansas Democrat-Gazette, has won the Pulitzer Prize for editorial writing. Send your comments by clicking here.
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