A wisp of the United States Supreme Court

Like probably 99% of the other attorneys in America, I have never had the privilege of appearing before the United States Supreme Court.  At this point in my career, it is highly unlikely that I ever will. However, once I did have a glancing contact with that auspicious Court, this came in the form of appearing before a man who missed being appointed to the Court by a quirk of fate.

On June 11, 2002, I stood atop and just outside of the courtroom of the Thomas Eagleton Courthouse in St. Louis, Missouri.  This Courthouse was actually a massive skyscraper with an incredible view of the Mississippi River, the St. Louis Arch, and the St. Louis Cardinal stadium.  I was there to argue the case Smart v. Sunshine Potato Flakes before a three judge panel of the Eighth Circuit Court of Appeals.

One of the Judges I appeared before was Judge Richard S. Arnold of Arkansas.  It was only years later when I read the account of how Judge Arnold missed being appointed the the United States Supreme Court in 1994 by a sad quirk of fate.  According to Jeffrey Tobin’s The Nine, President Bill Clinton had his mind set to appoint Judge Arnold to the seat being vacated by Justice Blackmun.  It certainly didn’t hurt chances that Judge Arnold and the President had played a round or two of golf together back in Arkansas.  The only issue was that Judge Arnold had been diagnosed with cancer 18 years before, specifically low grade non-Hodgkin’s lymphoma.  In an effort to prove Arnold’s medical fitness to be appointed, it was determined by a renowned oncologist that Judge Arnold’s diagnosis was far more grave and that he faced years of difficult chemotherapy.  As a result, the Supreme Court appointment went to Stephen Breyer instead.  President Clinton allegedly cried when calling to break the news to Arnold.

As a result, Judge Richard Arnold continued to serve of the Eighth Circuit Court of Appeals.  He did, in fact, have years of chemotherapy ahead of him before losing his battle to the disease on September 23, 2004 at age 68.  A little over two years after I appeared before him on that hot, humid day in St. Louis in June of 2002.