Sunday, October 12, 2014
Judge Richard Kopf has this post on his blog, Hercules and the Umpire, regarding the late Judge Richard S. Arnold's near appointment to the Supreme Court by President Clinton in 1994. Reproduced in that post is a draft speech prepared for President Clinton to announce the nomination. Consideration of Judge Arnold for the Supreme Court is not news; it was mentioned both in President Clinton's autobiography, "My Life," and Jeffrey Toobin's book on the Supreme Court, "The Nine." But this particular document is interesting reading, and some additional lauding of Judge Arnold is well-deserved.
Judge Arnold's opinion in U.S. v. Anastasoff, 223 F.3d 898 (8th Cir. 2000) and his law review article on the topic, Richard S. Arnold, Unpublished Opinions: A Comment, 1 J. App. Prac. & Process 219, 221 (1999) stand as an articulate and principled denunciation of the practice of issuing "unpublished" and "non-precedential" opinions. His work undoubtedly energized the movement toward permitting citation of such opinions in the federal appellate courts and opened an entire vein of scholarship examining the practice. Hopefully, it also planted the seed that will eventually bear fruit in the form of an end to the practice of issuing purportedly non-precedential opinions. His work on this issue was but a small sliver of his accomplished career, but it's one that, I think, exemplifies the fine qualities as jurist that are often ascribed to him.