Arkansan Pushed as ‘Gutsy’ Choice for Supreme Court

Around the White House, some refer to it as the “guts option.” Others call it crazy.

At first glance, the decision in question would not appear to merit either label, for it involves nominating to the Supreme Court one of the nation’s most highly esteemed federal judges, a noted legal scholar and writer whose work has been praised by admirers ranging from conservative writer William F. Buckley to liberal former Supreme Court Justice William J. Brennan Jr.

In addition, before becoming a judge, he was engaged in precisely the sort of public-interest work that President Clinton values highly.

There is, however, a big problem. Federal Appeals Court Judge Richard S. Arnold comes from Arkansas.

“Arnold’s credentials are unassailable,” a senior White House official said Saturday. “But we don’t operate in a world without politics.”

As Clinton begins once again to concentrate on filling the court vacancy--after Senate Majority Leader George J. Mitchell (D-Me.) withdrew his name from consideration--Arnold has emerged as one of a small number of leading candidates, Administration officials said.

The consideration of Arnold has divided Clinton’s advisers between “theorists” and “pragmatists,” said one senior official.

The theorists argue that Arnold should not be denied the nomination because of an accident of birth. The pragmatists respond that even if it is unfair, this is simply not the time.

One camp contends that a President already besieged by charges of Arkansas cronyism--and facing key tests on important legislation--can ill afford to name a resident of Little Rock to the nation’s highest court. “Given the climate, it would be a problem,” said one leading Clinton adviser.

The other camp asserts that Arnold would be a sure bet if he came from any other state and that Clinton would appear weak and foolish if he were to decline to nominate the judge because of what his aides and the President himself see as unfair anti-Arkansas prejudice.

“The President cannot fail to appoint him for that reason,” said a senior aide. “That would just be political weakness.”

However, “that’s different from saying he’s the choice,” the aide continued, noting that Clinton could decide the matter on the basis of some other issue.

That other issue could be the question of diversity. Clinton is under pressure to pick a member of a minority group, particularly a Latino, for the court vacancy.

The main Latino candidate, U.S. District Judge Jose A. Cabranes of Connecticut, lacks Arnold’s scholarly credentials and political experience, but many of Clinton’s political advisers say they believe that choosing the nation’s first Latino justice would be a major plus.

As the debate mounts, Arnold’s backers, including some of the nation’s most prominent judges and lawyers, are waging a quiet campaign to boost his prospects, calling the White House and members of the Senate to urge his nomination. The effort provides a rare glimpse at the backstage jockeying that goes into the making of a high court candidate.

The effort to “nationalize” Arnold’s candidacy, as one architect of the effort put it, began last year, when Justice Harry A. Blackmun’s resignation was just an expectation.

Arnold’s friends, including Brennan and federal Appeals Court Judge Patricia M. Wald of Washington and former Appellate Judge A. Leon Higginbotham Jr. of Philadelphia, put together a special issue of the University of Minnesota Law Review as a tribute to Arnold on his 15th anniversary as an appellate judge.

Arnold’s friends now actively circulate the issue, which includes favorable reviews of many of his legal opinions.

The campaign has accelerated since Mitchell’s withdrawal, with lawyers and judges calling senators and urging them to voice support for Arnold. They have concentrated particularly on Republicans, hoping to reassure the White House that appointing him would not set off a partisan battle.

The effort has met with some success. Despite Arnold’s liberalism, three conservative Republicans--Sens. Orrin G. Hatch of Utah, Connie Mack of Florida and Thad Cochran of Mississippi--have voiced support for him in recent days.

“I’ve had a number of good friends of mine call--lawyers with great respect at the bar who have contacted me,” Cochran said. After the calls, Cochran said, he called White House officials “to tell them I thought very highly of Judge Arnold.”

“If merit and qualifications rule this debate,” Cochran added, Arnold should have a good chance to “come out on top.”

The jockeying is likely to intensify over the next several days. Clinton would like to make the decision before the end of this month, according to White House Counsel Lloyd N. Cutler, who told reporters Friday to expect an announcement in about two weeks.

That schedule would not preclude the addition of a new candidate to the list of those already under consideration, but it would make such a move difficult. At a Friday meeting, Clinton asked for “more information” about existing candidates but did not express an immediate desire for more names, the senior aide said.

The child of a prominent Texarkana family long active in the law and in Democratic politics, Arnold, 58, would seem to possess many of the qualities Clinton has said he would like to see in a high court justice: formidable intellect, a “big heart” and practical experience of life beyond the federal bench.

Arnold was first in his class at both Yale University and Harvard Law School. He served a Supreme Court clerkship with Brennan and practiced law with one of Washington’s premier firms before returning to his native state. There, in addition to his regular practice, he handled public interest cases, representing civil rights plaintiffs and the Environmental Defense Fund, among others.

After failing in two attempts to win election to Congress, he became a top aide to then-Gov. Dale Bumpers, and subsequently came to Washington for four years after Bumpers was elected to the Senate.

As a federal judge for 16 years, Arnold has held a series of judicial administrative posts, representing the judiciary in its annual budget presentations to Congress.

His opinions have a generally liberal cast, particularly on civil rights and civil liberties issues. In one of the most notable cases, in 1989, Arnold wrote a sweeping order directing Arkansas to redraw its state legislative and congressional voting-district lines after finding that existing boundaries had prevented the election of blacks.

The case, which led to greatly increased black representation in the state, was brought to court during the 1980s by C. Lani Guinier, whom Clinton later nominated, then abandoned, for the post of head of the Justice Department’s civil rights division.

Among mid-level White House officials, many of whom feel the Administration’s opponents have used anti-Arkansas sneering to weaken Clinton, support for the Arnold option seems to have grown steadily in recent days. Many seem almost eager to see the President use the appointment of a clearly well-qualified judge to take on his critics.

“It would be the gutsy move,” said one White House official who falls into the pro-Arnold camp. “It would give the President a chance to show he stands up for his friends.”